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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest Event
Reported): September 7, 2000
MORGAN STANLEY ABS CAPITAL I INC.
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(Exact name of registrant as specified in its charter)
Delaware 333-64909 13-3939229
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
1585 Broadway, 2nd Floor
New York, New York 10036
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(Address of Principal (Zip Code)
Executive Offices)
Registrant's telephone number, including area code (212) 761-4000
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Item 5. Other Events
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Incorporation of Certain Documents by Reference
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On August 23, 2000, a single series of notes, entitled Morgan Stanley ABS
Capital I Inc., MSDWCC HELOC Trust 2000-1, HELOC Asset-Backed Notes, Series
2000-1 (the "Notes"), was issued pursuant to an indenture (the "Indenture")
attached hereto as Exhibit 4.1 and dated as of August 1, 2000, between MSDWCC
HELOC Trust 2000-1, as issuer (the "Trust" or the "Issuer"), and Wells Fargo
Bank Minnesota, N.A., as indenture trustee (the "Indenture Trustee"). The
Notes represent obligations of the Trust established pursuant to a trust
agreement (the "Trust Agreement"), attached hereto as Exhibit 99.1 dated as of
August 1, 2000, between the Morgan Stanley ABS Capital I Inc., as depositor
(the Depositor") and Wilmington Trust Company, as owner trustee (the "Owner
Trustee"). The assets of the Trust include, without limitation, a pool of
revolving credit loans (the "Mortgage Loans") secured by primarily second
liens on residential properties. Morgan Stanley Dean Witter Credit Corporation
will service the Mortgage Loans as servicer (the "Servicer") pursuant to a
servicing agreement (the "Servicing Agreement"), dated as of August 1, 2000, by
and among the Issuer, the Indenture Trustee and the Servicer.
The Notes and the Mortgage Loans are more particularly described in the
Prospectus, dated August 17, 2000, and the Prospectus Supplement, dated August
17, 2000, as previously filed with the Securities and Exchange Commission
pursuant to Rule 424(b)(5).
Item 7. Financial Statements, Pro Forma Financial
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Information and Exhibits.
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(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
4.1 Indenture, dated as of August 1, 2000 between the Issuer and the
Indenture Trustee.
99.1 Trust Agreement, dated as of August 1, 2000 between the Depositor
and the Owner Trustee.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MORGAN STANLEY ABS CAPITAL I INC.
By: /s/ James Fadel
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Name: James Fadel
Title: Vice President
Dated: August 31, 2000
Exhibit Index
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Exhibit Description Page
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4.1 Indenture, dated as of August 1, 2000 between the
Issuer and the Indenture Trustee.
99.1 Trust Agreement, dated as of August 1, 2000 between
the Depositor and the Owner Trustee.
<PAGE>
Exhibit 4.1
MSDWCC HELOC TRUST 2000-1
Issuer
and
WELLS FARGO BANK MINNESOTA, N.A.
Indenture Trustee
INDENTURE
Dated as of August 1, 2000
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HELOC ASSET-BACKED NOTES
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Table of Contents
Page
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ARTICLE I.
Definitions
Section 1.01. Definitions................................................2
Section 1.02. Incorporation by Reference of Trust Indenture Act..........2
Section 1.03. Rules of Construction......................................2
ARTICLE II.
Original Issuance of Notes
Section 2.01. Form.......................................................4
Section 2.02. Execution, Authentication and Delivery.....................4
ARTICLE III.
Covenants
Section 3.01. Collection of Payments with respect to the Revolving
Credit Loans...............................................5
Section 3.02. Maintenance of Office or Agency............................5
Section 3.03. Money for Payments to Be Held in Trust; Paying Agent.......5
Section 3.04. Existence..................................................6
Section 3.05. Payment of Principal and Interest; Defaulted Interest......7
Section 3.06. Protection of Trust Estate.................................8
Section 3.07. Opinions as to Trust Estate................................9
Section 3.08. Performance of Obligations; Servicing Agreement...........10
Section 3.09. Negative Covenants........................................10
Section 3.10. Annual Statement as to Compliance.........................11
Section 3.11. Recording of Assignments..................................11
Section 3.12. Representations and Warranties Concerning the Revolving
Credit Loans..............................................11
Section 3.13. Assignee of Record of the Revolving Credit Loans..........11
Section 3.14. Servicer as Agent and Bailee of the Indenture Trustee.....12
Section 3.15. Investment Company Act....................................12
Section 3.16. Issuer May Consolidate, etc...............................12
Section 3.17. Successor or Transferee...................................14
Section 3.18. No Other Business.........................................14
Section 3.19. No Borrowing..............................................14
Section 3.20. Guarantees, Loans, Advances and Other Liabilities.........14
Section 3.21. Capital Expenditures......................................14
Section 3.22. Owner Trustee Not Liable for Certificates or Related
Documents.................................................14
Section 3.23. Restricted Payments.......................................15
Section 3.24. Notice of Events of Default...............................15
Section 3.25. Further Instruments and Acts..............................15
Section 3.26. Statements to Noteholders.................................15
Section 3.27. Determination of Note Rate................................15
Section 3.28. Claims under the Credit Enhancement Instrument............16
Section 3.29. Treatment of the Notes as Debt for All Purposes...........17
Section 3.30. Rights in Respect of Insolvency Proceedings...............17
Section 3.31. Effect of Payments by the Credit Enhancer: Subrogation....18
Section 3.32. Protection of Trust Estate................................18
ARTICLE IV.
The Notes; Satisfaction and Discharge of Indenture
Section 4.01. The Notes.................................................20
Section 4.02. Registration of and Limitations on Transfer and Exchange
of Notes; Appointment of Certificate Registrar...........20
Section 4.03. Mutilated, Destroyed, Lost or Stolen Notes................22
Section 4.04. Persons Deemed Owners.....................................22
Section 4.05. Cancellation..............................................22
Section 4.06. Book-Entry Notes..........................................23
Section 4.07. Notices to Depository.....................................23
Section 4.08. Definitive Notes..........................................24
Section 4.09. Tax Treatment.............................................24
Section 4.10. Satisfaction and Discharge of Indenture...................24
Section 4.11. Application of Trust Money................................25
Section 4.12. Reserved..................................................25
Section 4.13. Repayment of Monies Held by Paying Agent..................25
Section 4.14. Temporary Notes...........................................25
ARTICLE V.
Default and Remedies
Section 5.01. Events of Default.........................................27
Section 5.02. Acceleration of Maturity; Rescission and Annulment........27
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.........................................28
Section 5.04. Remedies; Priorities......................................30
Section 5.05. Optional Preservation of the Trust Estate.................31
Section 5.06. Limitation of Suits.......................................31
Section 5.07. Unconditional Rights of Noteholders to Receive Principal
and Interest..............................................32
Section 5.08. Restoration of Rights and Remedies........................32
Section 5.09. Rights and Remedies Cumulative............................32
Section 5.10. Delay or Omission Not a Waiver............................32
Section 5.11. Control by Credit Enhancer or Noteholders.................32
Section 5.12. Waiver of Past Defaults...................................33
Section 5.13. Undertaking for Costs.....................................33
Section 5.14. Waiver of Stay or Extension Laws..........................34
Section 5.15. Sale of Trust Estate......................................34
Section 5.16. Action on Notes...........................................35
Section 5.17. Performance and Enforcement of Certain Obligations........36
ARTICLE VI.
The Indenture Trustee
Section 6.01. Duties of Indenture Trustee...............................37
Section 6.02. Rights of Indenture Trustee...............................38
Section 6.03. Individual Rights of Indenture Trustee....................38
Section 6.04. Indenture Trustee's Disclaimer............................38
Section 6.05. Notice of Event of Default................................38
Section 6.06. Reports by Indenture Trustee to Holders...................39
Section 6.07. Tax.......................................................39
Section 6.08. Compensation and Indemnity................................39
Section 6.09. Replacement of Indenture Trustee..........................40
Section 6.10. Successor Indenture Trustee by Merger.....................41
Section 6.11. Appointment of Co-Indenture Trustee or Separate Indenture
Trustee...................................................41
Section 6.12. Eligibility; Disqualification.............................42
Section 6.13. Preferential Collection of Claims Against Issuer..........42
Section 6.14. Representations and Warranties............................42
Section 6.15. Directions to Indenture Trustee...........................43
Section 6.16. Indenture Trustee May Own Securities......................43
ARTICLE VII.
Noteholders' Lists and Reports
Section 7.01. Issuer to Furnish Indenture Trustee Names and Addresses
of Noteholders............................................44
Section 7.02. Preservation of Information; Communications to
Noteholders...............................................44
Section 7.03. Reports by Issuer.........................................44
Section 7.04. Reports by Indenture Trustee..............................45
ARTICLE VIII.
Accounts, Disbursements and Releases
Section 8.01. Collection of Money.......................................46
Section 8.02. Trust Accounts............................................46
Section 8.03. Officer's Certificate.....................................46
Section 8.04. Termination Upon Distribution to Noteholders..............47
Section 8.05. Release of Trust Estate...................................47
Section 8.06. Surrender of Notes Upon Final Payment.....................47
ARTICLE IX.
Supplemental Indentures
Section 9.01. Supplemental Indentures Without Consent of Noteholders...48
Section 9.02. Supplemental Indentures With Consent of Noteholders......49
Section 9.03. Execution of Supplemental Indentures.....................50
Section 9.04. Effect of Supplemental Indenture.........................50
Section 9.05. Conformity with Trust Indenture Act......................51
Section 9.06. Reference in Notes to Supplemental Indentures............51
ARTICLE X.
Miscellaneous
Section 10.01. Compliance Certificates and Opinions, etc................52
Section 10.02. Form of Documents Delivered to Indenture Trustee.........52
Section 10.03. Acts of Noteholders......................................53
Section 10.04. Notices, etc., to Indenture Trustee, Issuer, Credit
Enhancer and Rating Agencies.............................54
Section 10.05. Notices to Noteholders; Waiver...........................54
Section 10.06. Alternate Payment and Notice Provisions..................55
Section 10.07. Conflict with Trust Indenture Act........................55
Section 10.08. Effect of Headings.......................................55
Section 10.09. Successors and Assigns...................................55
Section 10.10. Separability.............................................55
Section 10.11. Benefits of Indenture....................................56
Section 10.12. Legal Holidays...........................................56
Section 10.13. GOVERNING LAW............................................56
Section 10.14. Counterparts.............................................56
Section 10.15. Recording of Indenture...................................56
Section 10.16. Issuer Obligation........................................56
Section 10.17. No Petition..............................................56
Section 10.18. Inspection...............................................57
Section 10.19. Rights of the Credit Enhancer to Exercise Rights of
Noteholder...............................................57
Section 10.20. Third-Party Beneficiary..................................57
Signatures and Seals ....................................................
Acknowledgments .........................................................
EXHIBITS
Exhibit A - Form of Notes
Appendix A Definitions
This Indenture, dated as of August 1, 2000, between MSDWCC HELOC TRUST
2000-1, a Delaware business trust, as Issuer (the "Issuer"), and WELLS FARGO
BANK MINNESOTA, N.A., a national banking association, as Indenture Trustee
(the "Indenture Trustee"),
WITNESSETH THAT:
Each party hereto agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the Holders of the Issuer's Series
2000-1 Home Equity Loan-Backed Notes (the "Notes").
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date, as
trustee for the benefit of the Holders of the Notes, all of the Issuer's
right, title and interest in and to whether now existing or hereafter created
(a) the Revolving Credit Loans, (b) all funds on deposit from time to time in
the Collection Account and the Payment Account and in all proceeds thereof;
and (c) all present and future claims, demands, causes and choses in action in
respect of any or all of the foregoing and all payments on or under, and all
proceeds of every kind and nature whatsoever in respect of, any or all of the
foregoing and all payments on or under, and all proceeds of every kind and
nature whatsoever in the conversion thereof, voluntary or involuntary, into
cash or other liquid property, all cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, checks, deposit accounts, rights to
payment of any and every kind, and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing (collectively, the "Trust
Estate" or the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal
of and interest on, and any other amounts owing in respect of, the Notes,
equally and ratably without prejudice, priority or distinction, and to secure
compliance with the provisions of this Indenture, all as provided in this
Indenture.
The foregoing Grant shall inure to the benefit of the Credit Enhancer in
respect of draws made on the Credit Enhancement Instrument and amounts owing
from time to time pursuant to the Insurance Agreement (regardless of whether
such amounts relate to the Notes), and such Grant shall continue in full force
and effect for the benefit of the Credit Enhancer until all such amounts owing
to it have been repaid in full.
The Indenture Trustee, as trustee on behalf of the Holders of the Notes,
acknowledges such Grant, accepts the trust under this Indenture in accordance
with the provisions hereof and agrees to perform its duties as Indenture
Trustee as required herein.
ARTICLE I.
Definitions
Section 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in the Definitions attached hereto as Appendix A which
is incorporated by reference herein. All other capitalized terms used herein
shall have the meanings specified herein.
Section 1.02. Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the Trust Indenture Act (the "TIA"),
the provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or
defined by Commission rule have the meaning assigned to them
by such definitions.
Section 1.03. Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as
in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the
plural include the singular; and
(vi) any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II.
Original Issuance of Notes
Section 2.01. Form. The Notes, together with the Indenture Trustee's
certificate of authentication, shall be in substantially the form set forth in
Exhibit A, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by
the officers executing such Notes, as evidenced by their execution of the
Notes. Any portion of the text of any Note may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Note.
The Notes shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without steel engraved
borders), all as determined by the Authorized Officers executing such Notes,
as evidenced by their execution of such Notes.
The terms of the Notes set forth in Exhibit A are part of the terms
of this Indenture.
Section 2.02. Execution, Authentication and Delivery. The Notes shall be
executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Request authenticate and
deliver Notes for original issue in an aggregate initial principal amount of
$196,366,000.
Each Note shall be dated the date of its authentication. The Notes
shall be issuable as registered Notes and shall be issuable in the minimum
initial Security Balances of $1,000 and in integral multiples of $1,000 in
excess thereof, except for one Note, evidencing the sum of an authorized
denomination thereof and the remainder of the aggregate Security Balance of
the Notes.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated
and delivered hereunder.
ARTICLE III.
Covenants
Section 3.01. Collection of Payments with respect to the Revolving Credit
Loans. The Indenture Trustee shall establish and maintain with itself the
Payment Account in which the Indenture Trustee shall, subject to the terms of
this paragraph, deposit, on the same day as it is received from the Servicer,
each remittance received by the Indenture Trustee with respect to the
Revolving Credit Loans. The Indenture Trustee shall make all payments of
principal of and interest on the Notes, subject to Section 3.03 as provided in
Section 3.05 herein from monies on deposit in the Payment Account.
Section 3.02. Maintenance of Office or Agency. The Issuer will maintain
in the City of New York, an office or agency where, subject to satisfaction of
conditions set forth herein, Notes may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. If at any time the
Issuer shall fail to maintain any such office or agency or shall fail to
furnish the Indenture Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Indenture Trustee's Corporate
Trust Office, and the Issuer hereby appoints the Indenture Trustee as its
agent to receive all such surrenders, notices and demands at the Indenture
Trustee's Corporate Trust Office.
Section 3.03. Money for Payments to Be Held in Trust; Paying Agent. As
provided in Section 3.01, all payments of amounts due and payable with respect
to any Notes that are to be made from amounts withdrawn from the Payment
Account pursuant to Section 3.01 shall be made on behalf of the Issuer by the
Indenture Trustee or by the Paying Agent, and no amounts so withdrawn from the
Payment Account for payments of Notes shall be paid over to the Issuer except
as provided in this Section 3.03.
The Issuer will cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions
of this Section 3.03, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee and the Credit Enhancer written
notice of any default by the Issuer of which it has actual knowledge in the
making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of Notes,
if at any time it ceases to meet the standards required to be met by a Paying
Agent at the time of its appointment;
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith; and
(vi) deliver to the Indenture Trustee a copy of the report to
Noteholders prepared with respect to each Payment Date by the Servicer
pursuant to Section 4.01 of the Servicing Agreement.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Request direct any Paying Agent to pay to the Indenture Trustee all
sums held in trust by such Paying Agent, such sums to be held by the Indenture
Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
one year after such amount has become due and payable shall be discharged from
such trust and be paid to the Issuer on Issuer Request; and the Holder of such
Note shall thereafter, as an unsecured general creditor, look only to the
Issuer for payment thereof (but only to the extent of the amounts so paid to
the Issuer), and all liability of the Indenture Trustee or such Paying Agent
with respect to such trust money shall thereupon cease; provided, however,
that the Indenture Trustee or such Paying Agent, before being required to make
any such repayment, shall at the expense and direction of the Issuer cause to
be published once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such
money then remaining will be repaid to the Issuer. The Indenture Trustee may
also adopt and employ, at the expense and direction of the Issuer, any other
reasonable means of notification of such repayment (including, but not limited
to, mailing notice of such repayment to Holders whose Notes have been called
but have not been surrendered for redemption or whose right to or interest in
monies due and payable but not claimed is determinable from the records of the
Indenture Trustee or of any Paying Agent, at the last address of record for
each such Holder).
Section 3.04. Existence. The Issuer will keep in full effect its
existence, rights and franchises as a business trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other state or of the United States
of America, in which case the Issuer will keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and will
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Revolving Credit Loans and
each other instrument or agreement included in the Trust Estate.
Section 3.05. Payment of Principal and Interest; Defaulted Interest.
(a) On each Payment Date from amounts on deposit in the Payment
Account, the Paying Agent shall pay to the Noteholders, the Certificate Paying
Agent, on behalf of the Certificateholders, and to other Persons the amounts
to which they are entitled, as set forth below in the following order of
priority:
(i) to the Indenture Trustee, the Indenture Trustee Fee and to
the Owner Trustee, its fee for services rendered pursuant to the Trust
Agreement, each for such Payment Date;
(ii) to the Credit Enhancer, the premium for the Credit
Enhancement Instrument (as set forth in the Premium Letter) and any such
premium remaining unpaid for any prior Payment Date (with interest thereon as
provided in the Insurance Agreement) for such Payment Date;
(iii) to the Noteholders, interest accrued during the related
Interest Period at the Note Rate on the Security Balance of the Notes
immediately prior to such Payment Date, other than Interest Shortfalls;
(iv) to the Noteholders, principal equal to the Principal
Collection Distribution Amount for such Payment Date less the Principal
Reduction Amount for such Payment Date;
(v) to the Noteholders, an amount equal to (A) the Investor
Liquidation Loss Amounts on such Payment Date, plus (B) any Investor
Liquidation Loss Amounts remaining undistributed from any preceding Payment
Date, provided that any Investor Liquidation Loss Amount shall not be required
to be paid to the extent that such Investor Liquidation Loss Amount was paid
on the Notes by means of a draw on the Credit Enhancement Instrument;
(vi) to the Noteholders, an amount equal to the
Overcollateralization Deficit for such Payment Date;
(vii) to the Credit Enhancer, reimbursement for prior draws
made under the Credit Enhancement Instrument and any other amounts owed to the
Credit Enhancer pursuant to the Insurance Agreement (with interest thereon as
provided in the Insurance Agreement);
(viii) to the Noteholders, principal in the amount of the
Accelerated Principal Payment Amount for such Payment Date;
(ix) to the Noteholders, an amount equal to Interest Shortfalls
not previously paid (together with interest thereon at the Note Rate, to the
extent permitted by law);
(x) to the Indenture Trustee for any other amounts owing it
pursuant to Section 6.08 hereof and Section 7.02 of the Servicing Agreement
and remaining unpaid or to the Owner Trustee for any other expenses due it
under the Trust Agreement; and
(xi) any remaining amount to the Certificate Paying Agent, on
behalf of the holders of the Certificates;
provided, however, that on the Final Scheduled Payment Date or other final
Payment Date, the amount to be paid pursuant to clause (iv) above shall be
equal to the Security Balances of the Notes immediately prior to such Payment
Date. For purposes of the foregoing, required payments of principal on the
Notes on each Payment Date will include the Investor Liquidation Loss Amounts
for such Payment Date and for all previous Collection Periods until paid or
covered in full, to the extent not otherwise covered by a Liquidation Loss
Distribution Amount, a reduction of the Overcollateralization Amount or a draw
on the Credit Enhancement Instrument (up to the outstanding Security Balance
thereof).
On each Payment Date, the Certificate Paying Agent shall deposit in
the Certificate Distribution Account all amounts it received pursuant to this
Section 3.05 for the purpose of distributing such funds to the
Certificateholders.
The amounts paid to Noteholders shall be paid in accordance with the
applicable percentage as set forth in paragraph (b) below. Interest will
accrue on the Notes during an Interest Period on the basis of the actual
number of days in such Interest Period and a year assumed to consist of 360
days.
Any installment of interest or principal, if any, payable on any
Note that is punctually paid or duly provided for by the Issuer on the
applicable Payment Date shall be paid to each Holder of record on the
preceding Record Date, by wire transfer to an account specified in writing by
such Holder reasonably satisfactory to the Indenture Trustee as of the
preceding Record Date or in all other cases or if no such instructions have
been delivered to the Indenture Trustee, by check to such Noteholder mailed to
such Holder's address as it appears in the Note Register the amount required
to be distributed to such Holder on such Payment Date pursuant to such
Holder's Securities; provided, however, that the Indenture Trustee shall not
pay to such Holders any amount required to be withheld from a payment to such
Holder by the Code.
(b) The principal of each Note shall be due and payable in full on
the Final Scheduled Payment Date for such Note as provided in the related form
of Note set forth in Exhibit A. All principal payments on each of the Notes
shall be made to the Noteholders entitled thereto in accordance with the
Percentage Interests represented by such Notes. Upon written notice to the
Indenture Trustee by the Issuer, the Indenture Trustee shall notify the Person
in whose name a Note is registered at the close of business on the Record Date
preceding the Final Scheduled Payment Date or other final Payment Date. Such
notice shall be mailed no later than five Business Days prior to such Final
Scheduled Payment Date or other final Payment Date and shall specify that
payment of the principal amount and any interest due with respect to such Note
at the Final Scheduled Payment Date or other final Payment Date will be
payable only upon presentation and surrender of such Note and shall specify
the place where such Note may be presented and surrendered for such final
payment.
Section 3.06. Protection of Trust Estate.
(a) The Issuer will from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other
instruments, and will take such other action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iii) cause the Trust to enforce any of the Revolving Credit
Loans; or
(iv) _____ preserve and defend title to the Trust Estate and
the rights of the Indenture Trustee and the Noteholders in such Trust Estate
against the claims of all persons and parties.
(b) Except as otherwise provided in this Indenture, the Indenture
Trustee shall not remove any portion of the Trust Estate that consists of
money or is evidenced by an instrument, certificate or other writing from the
jurisdiction in which it was held at the date of the most recent Opinion of
Counsel delivered pursuant to Section 3.07 (or from the jurisdiction in which
it was held as described in the Opinion of Counsel delivered at the Closing
Date pursuant to Section 3.07(a), if no Opinion of Counsel has yet been
delivered pursuant to Section 3.07(b)) unless the Indenture Trustee shall have
first received an Opinion of Counsel to the effect that the lien and security
interest created by this Indenture with respect to such property will continue
to be maintained after giving effect to such action or actions.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section 3.06.
Section 3.07. Opinions as to Trust Estate.
(a) On the Closing Date, the Issuer shall furnish to the Indenture
Trustee and the Owner Trustee an Opinion of Counsel at the expense of the
Issuer either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of this Indenture, any
indentures supplemental hereto, and any other requisite documents, and with
respect to the execution and filing of any financing statements and
continuation statements, as are necessary to perfect and make effective the
lien and security interest in the Revolving Credit Loans and reciting the
details of such action, or stating that, in the opinion of such counsel, no
such action is necessary to make such lien and security interest effective.
(b) On or before May 31st in each calendar year, beginning in 2001,
the Issuer shall furnish to the Indenture Trustee and the Credit Enhancer an
Opinion of Counsel at the expense of the Issuer either stating that, in the
opinion of such counsel, such action has been taken with respect to the
recording, filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and with respect to the
execution and filing of any financing statements and continuation statements
as is necessary to maintain the lien and security interest in the Revolving
Credit Loans and reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to maintain such lien and
security interest. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and the execution and
filing of any financing statements and continuation statements that will, in
the opinion of such counsel, be required to maintain the lien and security
interest in the Revolving Credit Loans until December 31 in the following
calendar year.
Section 3.08. Performance of Obligations; Servicing Agreement.
(a) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents
and in the instruments and agreements included in the Trust Estate.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer.
(c) The Issuer will not take any action or permit any action to be
taken by others which would release any Person from any of such Person's
covenants or obligations under any of the documents relating to the Revolving
Credit Loans or under any instrument included in the Trust Estate, or which
would result in the amendment, hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of, any of the documents
relating to the Revolving Credit Loans or any such instrument, except such
actions as the Servicer is expressly permitted to take pursuant to the
Servicing Agreement.
(d) The Issuer may retain an administrator and may enter into
contracts with other Persons for the performance of the Issuer's obligations
hereunder, and performance of such obligations by such Persons shall be deemed
to be performance of such obligations by the Issuer.
Section 3.09. Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(i) except as expressly permitted by this Indenture, sell,
transfer, exchange or otherwise dispose of the Trust Estate, unless directed
to do so by the Indenture Trustee or the Credit Enhancer pursuant to Section
5.04 or 8.05 hereof or as may be permitted or required pursuant to the
Servicing Agreement or the Revolving Credit Loan Purchase Agreement;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than amounts
properly withheld from such payments under the Code) or assert any claim
against any present or former Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Trust Estate;
(iii) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to
be released from any covenants or obligations with respect to the Notes under
this Indenture except as may be expressly permitted hereby, (B) permit any
lien, charge, excise, claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or extend to or
otherwise arise upon or burden the Trust Estate or any part thereof or any
interest therein or the proceeds thereof or (C) permit the lien of this
Indenture not to constitute a valid first priority security interest in the
Trust Estate; or
(iv) impair or cause to be impaired the Issuer's interest in
the Revolving Credit Loans, the Revolving Credit Loan Purchase Agreement or in
any Basic Document, if any such action would materially and adversely affect
the interests of the Noteholders.
Section 3.10. Annual Statement as to Compliance. The Issuer will deliver
to the Indenture Trustee and the Credit Enhancer, within 120 days after the
end of each fiscal year (which currently ends November 30) of the Issuer
(commencing with the fiscal year 2000), an Officer's Certificate stating, as
to the Authorized Officer signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during such year
and of its performance under this Indenture and the Trust Agreement has been
made under such Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge, based
on such review, the Issuer has complied with all conditions and covenants
under this Indenture and the provisions of the Trust Agreement throughout such
year, or, if there has been a default in its compliance with any such
condition or covenant, specifying each such default known to such Authorized
Officer and the nature and status thereof.
Section 3.11. Recording of Assignments. The Issuer shall enforce the
obligation of the Seller under the Revolving Credit Loan Purchase Agreement to
submit or cause to be submitted for recording all Assignments of Mortgages
within 90 days of receipt of recording information by the Servicer to the
extent required by the Revolving Credit Loan Purchase Agreement.
Section 3.12. Representations and Warranties Concerning the Revolving
Credit Loans. The Indenture Trustee, as pledgee of the Revolving Credit Loans,
has the benefit of the representations and warranties made by the Seller in
Section 3.1(a) and Section 3.1(b) of the Revolving Credit Loan Purchase
Agreement concerning the Revolving Credit Loans and the right to enforce the
remedies against the Seller provided in such Section 3.1(a) or Section 3.1(b)
to the same extent as though such representations and warranties were made
directly to the Indenture Trustee.
Section 3.13. Assignee of Record of the Revolving Credit Loans. As
pledgee of the Revolving Credit Loans, the Indenture Trustee shall hold record
title to the Revolving Credit Loans by being named as payee in the
endorsements of the Mortgage Notes and assignee in the Assignments of Mortgage
as provided under Section 2.1 of the Revolving Credit Loan Purchase Agreement.
Except as expressly provided in the Revolving Credit Loan Purchase Agreement
or in the Servicing Agreement with respect to any specific Revolving Credit
Loan, the Indenture Trustee shall not execute any endorsement or assignment or
otherwise release or transfer such record title to any of the Revolving Credit
Loans until such time as the remaining Trust Estate may be released pursuant
to Section 8.05(b).
Section 3.14. Servicer as Agent and Bailee of the Indenture Trustee.
Solely for purposes of perfection under Section 9-305 of the Uniform
Commercial Code or other similar applicable law, rule or regulation of the
state in which such property is held by the Servicer, the Issuer and the
Indenture Trustee hereby acknowledge that the Servicer is acting as agent and
bailee of the Indenture Trustee in holding amounts on deposit in the
Collection Account pursuant to Section 3.02 of the Servicing Agreement that
are allocable to the Revolving Credit Loans, as well as the agent and bailee
of the Indenture Trustee in holding any Related Documents released to the
Servicer pursuant to Section 3.06(b) of the Servicing Agreement, and any other
items constituting a part of the Trust Estate which from time to time come
into the possession of the Servicer. It is intended that, by the Servicer's
acceptance of such agency pursuant to Section 3.02 of the Servicing Agreement,
the Indenture Trustee, as a pledgee of the Revolving Credit Loans, will be
deemed to have possession of such Related Documents, such monies and such
other items for purposes of Section 9-305 of the Uniform Commercial Code of
the state in which such property is held by the Servicer.
Section 3.15. Investment Company Act. The Issuer shall not become an
"investment company" or under the "control" of an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended (or any
successor or amendatory statute), and the rules and regulations thereunder
(taking into account not only the general definition of the term "investment
company" but also any available exceptions to such general definition);
provided, however, that the Issuer shall be in compliance with this Section
3.15 if it shall have obtained an order exempting it from regulation as an
"investment company" so long as it is in compliance with the conditions
imposed in such order.
Section 3.16. Issuer May Consolidate, etc.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless the Credit Enhancer consents thereto and:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any state or the
District of Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Indenture Trustee, in form reasonably
satisfactory to the Indenture Trustee, the due and punctual payment of the
principal of and interest on all Notes and to the Certificate Paying Agent, on
behalf of the Certificateholders and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to be
performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no
Event of Default shall have occurred and be continuing;
(iii) the Issuer receives prior written consent of the Credit
Enhancer and the Rating Agencies shall have notified the Issuer that such
transaction shall not cause the rating of the Notes or the Certificates to be
reduced, suspended or withdrawn or to be considered by either Rating Agency to
be below investment grade without taking into account the Credit Enhancement
Instrument;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee and the Credit
Enhancer) to the effect that such transaction will not have any material
adverse tax consequence to the Issuer, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for relating to
such transaction have been complied with (including any filing required by the
Exchange Act).
(b) Except as otherwise provided in the Servicing Agreement or the
Revolving Credit Loan Purchase Agreement, the Issuer shall not convey or
transfer any of its properties or assets, including those included in the
Trust Estate, to any Person, unless the Credit Enhancer consents to such
conveyance or transfer and:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which is
hereby restricted shall (A) be a United States citizen or a Person organized
and existing under the laws of the United States of America or any state, (B)
expressly assumes, by an indenture supplemental hereto, executed and delivered
to the Indenture Trustee, in form satisfactory to the Indenture Trustee, the
due and punctual payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this Indenture on
the part of the Issuer to be performed or observed, all as provided herein,
(C) expressly agrees by means of such supplemental indenture that all right,
title and interest so conveyed or transferred shall be subject and subordinate
to the rights of Holders of the Notes, (D) unless otherwise provided in such
supplemental indenture, expressly agrees to indemnify, defend and hold
harmless the Issuer against and from any loss, liability or expense arising
under or related to this Indenture and the Notes and (E) expressly agrees by
means of such supplemental indenture that such Person (or if a group of
Persons, then one specified Person) shall make all filings with the Commission
(and any other appropriate Person) required by the Exchange Act in connection
with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Issuer receives consent of the Credit Enhancer and
the Rating Agencies shall have notified the Issuer that such transaction shall
not cause the rating of the Notes or the Certificates to be reduced, suspended
or withdrawn, if determined without regard to the Credit Enhancement
Instrument;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the effect
that such transaction will not have any material adverse tax consequence to
the Issuer or any Noteholder;
(v) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for relating to
such transaction have been complied with (including any filing required by the
Exchange Act).
Section 3.17. Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance
with Section 3.16(a), the Person formed by or surviving such consolidation or
merger (if other than the Issuer) shall succeed to, and be substituted for,
and may exercise every right and power of, the Issuer under this Indenture
with the same effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties
of the Issuer pursuant to Section 3.16(b), the Issuer will be released from
every covenant and agreement of this Indenture to be observed or performed on
the part of the Issuer with respect to the Notes immediately upon the delivery
of written notice to the Indenture Trustee of such conveyance or transfer.
Section 3.18. No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning and selling and managing the
Revolving Credit Loans and the issuance of the Notes and Certificates in the
manner contemplated by this Indenture and the Basic Documents and all
activities incidental thereto.
Section 3.19. No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
Section 3.20. Guarantees, Loans, Advances and Other Liabilities. Except
as contemplated by this Indenture or the Basic Documents, the Issuer shall not
make any loan or advance or credit to, or guarantee (directly or indirectly or
by an instrument having the effect of assuring another's payment or
performance on any obligation or capability of so doing or otherwise), endorse
or otherwise become contingently liable, directly or indirectly, in connection
with the obligations, stocks or dividends of, or own, purchase, repurchase or
acquire (or agree contingently to do so) any stock, obligations, assets or
securities of, or any other interest in, or make any capital contribution to,
any other Person.
Section 3.21. Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 3.22. Owner Trustee Not Liable for Certificates or Related
Documents. The recitals contained herein shall be taken as the statements of
the Depositor, and the Owner Trustee assumes no responsibility for the
correctness thereof. The Owner Trustee and the Indenture Trustee make no
representations as to the validity or sufficiency of this Indenture, of any
Basic Document or of the Certificates (other than the signatures of the Owner
Trustee on the Certificates) or the Notes, or of any Related Documents. The
Owner Trustee and the Indenture Trustee shall at no time have any
responsibility or liability with respect to the sufficiency of the Owner Trust
Estate or its ability to generate the payments to be distributed to
Certificateholders under the Trust Agreement or the Noteholders under this
Indenture, including, the compliance by the Depositor or the Seller with any
warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation, or any action
of the Certificate Paying Agent, the Certificate Registrar or the Indenture
Trustee taken in the name of the Owner Trustee.
Section 3.23. Restricted Payments. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Issuer, (ii) redeem, purchase, retire or otherwise
acquire for value any such ownership or equity interest or security or (iii)
set aside or otherwise segregate any amounts for any such purpose; provided,
however, that the Issuer may make, or cause to be made, (x) distributions to
the Owner Trustee and the Certificateholders as contemplated by, and to the
extent funds are available for such purpose under the Trust Agreement and (y)
payments to the Servicer pursuant to the terms of the Servicing Agreement. The
Issuer will not, directly or indirectly, make payments to or distributions
from the Collection Account except in accordance with this Indenture and the
Basic Documents.
Section 3.24. Notice of Events of Default. The Issuer shall give the
Indenture Trustee, the Credit Enhancer and the Rating Agencies prompt written
notice of each Event of Default hereunder and under the Trust Agreement.
Section 3.25. Further Instruments and Acts. Upon request of the Indenture
Trustee, the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
Section 3.26. Statements to Noteholders. On each Payment Date, the
Indenture Trustee and the Certificate Registrar shall provide to DTC and the
Rating Agencies and shall make available to each Noteholder and
Certificateholder, respectively, the Statement prepared by the Indenture
Trustee and based on the Servicing Reports provided to the Indenture Trustee
by the Servicer pursuant to Section 4.01 of the Servicing Agreement.
The Indenture Trustee will make the monthly statement (and, at its
option, any additional files containing the same information in an alternative
format) available each month to Noteholders, and other parties to the
agreement via the Indenture Trustee's internet website and its fax-on-demand
service. The Indenture Trustee's fax-on-demand service may be accessed by
calling (301) 815-6610. The Indenture Trustee's internet website shall
initially be located at "www.ctslink.com". Assistance in using the website or
the fax-on-demand service can be obtained by calling the Indenture Trustee's
customer service desk at (301) 815-6600. Parties that are unable to use the
above distribution options are entitled to have a paper copy mailed to them
via first class mail by calling the customer service desk and indicating such.
The Indenture Trustee shall have the right to change the way monthly
statements are distributed in order to make such distribution more convenient
and/or more accessible to the above parties and the Indenture Trustee shall
provide timely and adequate notification to all above parties regarding any
such changes.
Section 3.27. Determination of Note Rate. On the second LIBOR Business
Day immediately preceding (i) the Closing Date in the case of the first
Interest Period and (ii) the first day of each succeeding Interest Period, the
Indenture Trustee shall determine LIBOR and the Note Rate for such Interest
Period and shall provide the Issuer, the Servicer and the Depositor with the
rates of LIBOR and the Note Rate by making such rates available on the
Indenture Trustee's website, and fax-on-demand service, as set forth in
Section 3.26.
Section 3.28. Claims under the Credit Enhancement Instrument.
(a) If, on the 2nd Business Day prior to the related Payment Date
there is not on deposit with the Indenture Trustee funds sufficient to pay
Scheduled Payments on the Notes due on such Payment Date, the Indenture
Trustee shall give notice to the Credit Enhancer and to its direction by
telephone or telecopy of the amount of such deficiency by 12:00 noon, New York
City time, on such Business Day in the form set forth as Exhibit A to the
Endorsement of the Credit Enhancement Instrument to the Credit Enhancer and
the Fiscal Agent.
(b) At the time of the execution and delivery of this Indenture, and
for the purposes of this Indenture, the Indenture Trustee shall establish a
separate special purpose trust account for the benefit of Holders of the Notes
referred to herein as the "Policy Payments Account" and over which the
Indenture Trustee shall have exclusive control and sole right of withdrawal.
The Indenture Trustee shall deposit any amount paid under the Credit
Enhancement Instrument in the Policy Payments Account and distribute such
amount only for purposes of making the Scheduled Payments for which a claim
was made. Such amounts shall be disbursed by the Indenture Trustee to Holders
in the same manner as principal and interest payments are to be made with
respect to the Notes under Section 3.05 hereof. It shall not be necessary for
such payments to be made by checks or wire transfers separate from the check
or wire transfer used to pay Scheduled Payments with other funds available to
make such payments. However, the amount of any payment of principal of or
interest on the Notes to be paid from the Policy Payments Account shall be
noted as provided in (d) below in the Statement to the Noteholders to be
furnished to Holders of the Notes. Funds held in the Policy Payments Account
shall not be invested by the Indenture Trustee.
(c) Any funds received by the Indenture Trustee as a result of any
claim under the Credit Enhancement Instrument shall be applied by the
Indenture Trustee, together with the funds, if any, to be withdrawn from the
Payment Account, directly to the payment in full of the Scheduled Payments due
on the Notes (including Notes held for the Indenture Trustee's own account).
Funds received by the Indenture Trustee as a result of any claim under the
Credit Enhancement Instrument shall be deposited by the Indenture Trustee in
the Policy Payments Account and used solely for payment to the Holders of
Notes and may not be applied to satisfy any costs, expenses or liabilities of
the Indenture Trustee. Any funds remaining in the Policy Payments Account
following a Payment Date shall promptly be remitted to the Credit Enhancer.
(d) The Indenture Trustee shall keep a complete and accurate record
of all funds deposited by the Credit Enhancer into the Policy Payments Account
and the allocation of such funds to payment of interest on and principal paid
in respect of any Note. The Credit Enhancer shall have the right to inspect
such records at reasonable times upon one Business Day's prior notice to the
Indenture Trustee.
(e) Subject to and conditioned upon payment of any interest or
principal with respect to the Notes by or on behalf of the Credit Enhancer,
the Indenture Trustee shall assign to the Credit Enhancer, all rights to the
payment of interest or principal on the Indenture which are then due for
payment to the extent of all payments made by the Credit Enhancer and the
Credit Enhancer may exercise any option, vote, right, power or the like with
respect to Obligations to the extent it has made a principal payment pursuant
to the Credit Enhancement Instrument. The Indenture Trustee agrees that the
Credit Enhancer shall be subrogated to all of the rights to payment of the
Holders of the Notes or in relation thereto to the extent that any payment of
principal or interest was made to such Holders with payments made under the
Credit Enhancement Instrument by the Credit Enhancer.
Section 3.29. Treatment of the Notes as Debt for All Purposes. The Issuer
and each Holder shall treat the Notes as indebtedness for all purposes.
Section 3.30. Rights in Respect of Insolvency Proceedings.
(a) In the event that the Indenture Trustee has received a certified
copy of an order of the appropriate court that any scheduled payment of
principal of or interest on a Note has been voided in whole or in part as a
preference payment under applicable bankruptcy law, the Indenture Trustee
shall so notify the Credit Enhancer, shall comply with the provisions of the
Credit Enhancement Instrument to obtain payment by the Credit Enhancer of such
voided scheduled payment, and shall, at the time it provides notice to the
Credit Enhancer, notify, by mail to Holders of the Notes that, in the event
that any Holder's scheduled payment is so recovered, such Holder will be
entitled to payment pursuant to the terms of the Credit Enhancement
Instrument, a copy of which shall be made available through the Indenture
Trustee, the Credit Enhancer or the Fiscal Agent, if any, and the Indenture
Trustee shall furnish to the Credit Enhancer or its Fiscal Agent, if any, its
records evidencing the payments of principal of and interest on the Notes, if
any, which have been made by the Indenture Trustee and subsequently recovered
from Holders, and the dates on which such payments were made.
(b) The Indenture Trustee shall promptly notify the Credit Enhancer
of either of the following as to which it has actual knowledge: (i) the
commencement of any proceeding by or against the Trust commenced under the
United States Bankruptcy Code or any other applicable bankruptcy, insolvency,
receivership, rehabilitation or similar law (an "Insolvency Proceeding")
described in Section __ hereof and (ii) the making of any claim in connection
with any Insolvency Proceeding seeking the avoidance as a preferential
transfer (a "Preference Claim") of any payment of principal of, or interest
on, the Notes. Each Holder, by its purchase of Notes, and the Indenture
Trustee hereby agree that, so long as a Credit Enhancer Default shall not have
occurred and be continuing, Credit Enhancer may at any time during the
continuation of an Insolvency Proceeding direct all matters relating to such
Insolvency Proceeding, including, without limitation, (i) all matters relating
to any Preference Claim, (ii) the direction of any appeal of any order
relating to any Preference Claim at the expense of Credit Enhancer but subject
to reimbursement as provided in the Insurance Agreement and (iii) the posting
of any surety, supersedeas or performance bond pending any such appeal. In
addition, and without limitation of the foregoing, as set forth in Section
3.31, the Credit Enhancer shall be subrogated to, and each Holder and the
Indenture Trustee hereby delegate and assign, to the fullest extent permitted
by law the rights of the Indenture Trustee and each Holder in the conduct of
any Insolvency Proceeding, including, without limitation, all rights of any
party to an adversary proceeding action with respect to any court order issued
in connection with any such Insolvency Proceedings.
(c) The Indenture Trustee shall furnish to the Credit Enhancer or
its Fiscal Agent its records evidencing the Scheduled Payments of principal of
and interest on the Notes which have been made by the Indenture Trustee and
subsequently recovered from Noteholders, and the dates on which such payments
were made.
Section 3.31. Effect of Payments by the Credit Enhancer: Subrogation.
(a) Anything herein to the contrary notwithstanding, any payment
with respect to the principal of or interest on the Notes which is made with
moneys received pursuant to the terms of the Credit Enhancement Instrument
shall not be considered payment by the Issuer of the Notes, shall not
discharge the Issuer in respect of its obligation to make such payment and
shall not result in the payment of or the provision for the payment of the
principal of or interest on the Notes within the meaning of Section 4.10
hereof. The Issuer and the Indenture Trustee acknowledge that without the need
for any further action on the part of the Credit Enhancer, the Issuer, the
Indenture Trustee or the Bond Registrar (i) to the extent the Credit Enhancer
makes payments, directly or indirectly, on account of principal of or interest
on the Notes to the Holders of such Notes, the Credit Enhancer will be fully
subrogated to the rights of such Holders to received such principal and
interest from the Issuer, and (ii) the Credit Enhancer shall be paid such
principal and interest in its capacity as a Holder of Notes but only from the
sources and in the manner provided herein for the payment of such principal
and interest in each case only after the Holders of the Notes have received
payment of all scheduled payments of principal and interest due thereon.
(b) Without limiting the provisions of Article V hereof or the
rights or interests of the Holders as otherwise set forth herein, so long as
no Credit Enhancer Default exists, the Indenture Trustee shall cooperate in
all respects with any reasonable request by Credit Enhancer for action to
preserve or enforce Credit Enhancer's rights or interests under this
Indenture, including, without limitation, upon the occurrence and continuance
of an Event of Default, a request to take any one or more of the following
actions:
(i) institute proceedings for the collection of all amounts
then payable on the Notes, or under this Indenture in respect to the
Notes, enforce any judgment obtained and collect from the Issuer
moneys adjudged due:
(ii) institute proceedings from time to time for the complete
or partial foreclosure of this Indenture; and
(iii) exercise any remedies of a secured party under the
Uniform Commercial Code and take any other appropriate action to
protect and enforce the rights and remedies of the Credit Enhancer
hereunder.
Section 3.32. Protection of Trust Estate. At the request of the Credit
Enhancer (so long as no Credit Enhancer Default exists), the Indenture Trustee
and the Issuer will from time to time execute and deliver all such supplements
and amendments hereto and all such financing statements, continuation
statements, instruments of further assurance and other instruments, and will
take such other action as may be necessary or advisable to:
(i) grant more effectively all or any portion of the Trust
Estate;
(ii) maintain or preserve the lien of this Indenture or carry
out more effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of any
grant made or to be made by this Indenture;
(iv) enforce any of the Related Documents;
(v) preserve and defend title to the Trust Estate and the
rights of the Indenture Trustee, and of Noteholders in the Related
Documents and the other property held as part of the Trust Estate
against the claims of all persons and parties; or
(vi) pay all taxes or assessments levied or assessed upon the
Trust Estate when due.
ARTICLE IV.
The Notes; Satisfaction and Discharge of Indenture
Section 4.01. The Notes. The Notes shall be registered in the name of a
nominee designated by the Depository. Beneficial Owners will hold interests in
the Notes through the book-entry facilities of the Depository in minimum
initial Security Balances of $1,000 and integral multiples of $1,000 in excess
thereof, except for one Note, evidencing the sum of an authorized denomination
thereof and the remainder of the aggregate Security Balance of the Notes.
The Indenture Trustee may for all purposes (including the making of
payments due on the Notes) deal with the Depository as the authorized
representative of the Beneficial Owners with respect to the Notes for the
purposes of exercising the rights of Holders of Notes hereunder. Except as
provided in the next succeeding paragraph of this Section 4.01, the rights of
Beneficial Owners with respect to the Notes shall be limited to those
established by law and agreements between such Beneficial Owners and the
Depository and Depository Participants. Except as provided in Section 4.08,
Beneficial Owners shall not be entitled to definitive certificates for the
Notes as to which they are the Beneficial Owners. Requests and directions
from, and votes of, the Depository as Holder of the Notes shall not be deemed
inconsistent if they are made with respect to different Beneficial Owners. The
Indenture Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Noteholders and give notice to the
Depository of such record date. Without the consent of the Issuer and the
Indenture Trustee, no Note may be transferred by the Depository except to a
successor Depository that agrees to hold such Note for the account of the
Beneficial Owners.
In the event The Depository Trust Company resigns or is removed as
Depository, the Indenture Trustee with the approval of the Issuer may appoint
a successor Depository. If no successor Depository has been appointed within
30 days of the effective date of the Depository's resignation or removal, each
Beneficial Owner shall be entitled to certificates representing the Notes it
beneficially owns in the manner prescribed in Section 4.08.
The Notes shall, on original issue, be executed on behalf of the
Issuer by the Owner Trustee, not in its individual capacity but solely as
Owner Trustee, authenticated by the Note Registrar and delivered by the
Indenture Trustee to or upon the order of the Issuer.
Section 4.02. Registration of and Limitations on Transfer and Exchange of
Notes; Appointment of Certificate Registrar. The Issuer shall cause to be kept
at the Indenture Trustee's Corporate Trust Office a Note Register in which,
subject to such reasonable regulations as it may prescribe, the Note Registrar
shall provide for the registration of Notes and of transfers and exchanges of
Notes as herein provided.
Subject to the restrictions and limitations set forth below, upon
surrender for registration of transfer of any Note at the Corporate Trust
Office, the Issuer shall execute and the Note Registrar shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Notes in authorized initial Security Balances evidencing the same
aggregate Percentage Interests.
Subject to the foregoing, at the option of the Noteholders, Notes
may be exchanged for other Notes of like tenor, in each case in authorized
initial Security Balances evidencing the same aggregate Percentage Interests
upon surrender of the Notes to be exchanged at the Corporate Trust Office of
the Note Registrar. Whenever any Notes are so surrendered for exchange, the
Indenture Trustee shall execute and the Note Registrar shall authenticate and
deliver the Notes which the Noteholder making the exchange is entitled to
receive. Each Note presented or surrendered for registration of transfer or
exchange shall (if so required by the Note Registrar) be duly endorsed by, or
be accompanied by a written instrument of transfer in form reasonably
satisfactory to the Note Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing with such signature guaranteed by a
commercial bank or trust company located or having a correspondent located in
the city of New York. Notes delivered upon any such transfer or exchange will
evidence the same obligations, and will be entitled to the same rights and
privileges, as the Notes surrendered.
Any Noteholder using the assets 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 described in Section 4975(e)(1) of the Internal Revenue
Code of 1986, as amended, or (iii) any entity whose underlying assets include
plan assets by reason of a plan's investment in the entity to purchase the
Notes, or to whom the Notes are transferred, will be deemed to have
represented that the acquisition and continued holding of the Notes do not
constitute or give rise to a prohibited transaction under Section 406 of ERISA
or Section 4975 of the Code for which no statutory, regulatory or
administrative exemption is available, and the Indenture Trustee shall be
entitled to conclusively rely upon such representation without any independent
investigation.
In addition, the Notes may not be purchased with the assets of any
plan described in clauses (i), (ii) or (iii) in the immediately preceding
paragraph if the Depositor, the Servicer, the Indenture Trustee, the Owner
Trustee or any of their affiliates (a) has investment or administrative
discretion with respect to such plan assets; (b) has authority or
responsibility to give, or regularly gives, investment advice with respect to
such plan assets, for a fee and pursuant to an agreement or understanding that
such advice (i) will serve as a primary basis for investment decisions with
respect to such plan assets and (ii) will be based on the particular
investment needs for such plan; or (c) is an employer maintaining or
contributing to such plan.
No service charge shall be imposed for any registration of transfer
or exchange of Notes, but the Note Registrar shall require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes.
All Notes surrendered for registration of transfer and exchange
shall be cancelled by the Note Registrar and delivered to the Indenture
Trustee for subsequent destruction without liability on the part of either.
The Issuer hereby appoints the Indenture Trustee as Certificate
Registrar to keep at its Corporate Trust Office a Certificate Register
pursuant to Section 3.09 of the Trust Agreement in which, subject to such
reasonable regulations as it may prescribe, the Certificate Registrar shall
provide for the registration of Certificates and of transfers and exchanges
thereof pursuant to Section 3.05 of the Trust Agreement. The Indenture Trustee
hereby accepts such appointment.
Section 4.03. Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, and (ii) there is delivered to the Indenture Trustee such
security or indemnity as may be required by it to hold the Issuer and the
Indenture Trustee harmless, then, in the absence of notice to the Issuer, the
Note Registrar or the Indenture Trustee that such Note has been acquired by a
bona fide purchaser, and provided that the requirements of Section 8-405 of
the UCC are met, the Issuer shall execute, and upon its request the Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note of the same
class; provided, however, that if any such destroyed, lost or stolen Note, but
not a mutilated Note, shall have become or within seven days shall be due and
payable, instead of issuing a replacement Note, the Issuer may pay such
destroyed, lost or stolen Note when so due or payable without surrender
thereof. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the
Issuer and the Indenture Trustee shall be entitled to recover such replacement
Note (or such payment) from the Person to whom it was delivered or any Person
taking such replacement Note from such Person to whom such replacement Note
was delivered or any assignee of such Person, except a bona fide purchaser,
and shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the
Issuer or the Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section 4.03,
the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section 4.03 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Issuer, whether or not
the mutilated, destroyed, lost or stolen Note shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 4.03 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 4.04. Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and
any agent of the Issuer or the Indenture Trustee may treat the Person in whose
name any Note is registered (as of the day of determination) as the owner of
such Note for the purpose of receiving payments of principal of and interest,
if any, on such Note and for all other purposes whatsoever, whether or not
such Note be overdue, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee shall be affected by notice to
the contrary.
Section 4.05. Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at
any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Indenture Trustee. No Notes shall be authenticated
in lieu of or in exchange for any Notes cancelled as provided in this Section
4.05, except as expressly permitted by this Indenture. All cancelled Notes may
be held or disposed of by the Indenture Trustee in accordance with its
standard retention or disposal policy as in effect at the time unless the
Issuer shall direct by an Issuer Request that they be destroyed or returned to
it; provided however, that such Issuer Request is timely and the Notes have
not been previously disposed of by the Indenture Trustee.
Section 4.06. Book-Entry Notes. The Notes, upon original issuance, will
be issued in the form of typewritten Notes representing the Book-Entry Notes,
to be delivered to The Depository Trust Company, the initial Depository, by,
or on behalf of, the Issuer. Such Notes shall initially be registered on the
Note Register in the name of Cede & Co., the nominee of the initial
Depository, and no Beneficial Owner will receive a Definitive Note
representing such Beneficial Owner's interest in such Note, except as provided
in Section 4.08. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to Beneficial Owners pursuant to Section
4.08:
(i) the provisions of this Section 4.06 shall be in full force
and effect;
(ii) the Note Registrar and the Indenture Trustee shall be
entitled to deal with the Depository for all purposes of this Indenture
(including the payment of principal of and interest on the Notes and the
giving of instructions or directions hereunder) as the sole holder of the
Notes, and shall have no obligation to the Owners of Notes;
(iii) to the extent that the provisions of this Section 4.06
conflict with any other provisions of this Indenture, the provisions of this
Section 4.06 shall control;
(iv) the rights of Beneficial Owners shall be exercised only
through the Depository and shall be limited to those established by law and
agreements between such Owners of Notes and the Depository and/or the
Depository Participants. Unless and until Definitive Notes are issued pursuant
to Section 4.08, the initial Depository will make book-entry transfers among
the Depository Participants and receive and transmit payments of principal of
and interest on the Notes to such Depository Participants; and
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Notes evidencing a
specified percentage of the Security Balances of the Notes, the Depository
shall be deemed to represent such percentage only to the extent that it has
received instructions to such effect from Beneficial Owners and/or Depository
Participants owning or representing, respectively, such required percentage of
the beneficial interest in the Notes and has delivered such instructions to
the Indenture Trustee.
Section 4.07. Notices to Depository. Whenever a notice or other
communication to the Note Holders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Beneficial Owners pursuant to
Section 4.08, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Depository, and shall have no obligation to the Beneficial Owners.
Section 4.08. Definitive Notes. If (i) the Indenture Trustee determines
that the Depository is no longer willing or able to properly discharge its
responsibilities with respect to the Notes and the Indenture Trustee is unable
to locate a qualified successor, (ii) the Indenture Trustee elects to
terminate the book-entry system through the Depository or (iii) after the
occurrence of an Event of Default, Owners of Notes representing beneficial
interests aggregating at least a majority of the Security Balances of the
Notes advise the Depository in writing that the continuation of a book-entry
system through the Depository is no longer in the best interests of the
Beneficial Owners, then the Depository shall notify all Beneficial Owners and
the Indenture Trustee of the occurrence of any such event and of the
availability of Definitive Notes to Beneficial Owners requesting the same.
Upon surrender to the Indenture Trustee of the typewritten Notes representing
the Book-Entry Notes by the Depository, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee shall
authenticate the Definitive Notes in accordance with the instructions of the
Depository. None of the Issuer, the Note Registrar or the Indenture Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize
the Holders of the Definitive Notes as Noteholders.
Section 4.09. Tax Treatment. The Issuer has entered into this Indenture,
and the Notes will be issued, with the intention that, for federal, state and
local income, single business and franchise tax purposes, the Notes will
qualify as indebtedness of the Issuer. The Issuer, by entering into this
Indenture, and each Noteholder, by its acceptance of its Note (and each
Beneficial Owner by its acceptance of an interest in the applicable Book-Entry
Note), agree to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness.
Section 4.10. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of
mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon, (iv) Sections
3.03, 3.04, 3.06, 3.09, 3.16, 3.18 and 3.19, (v) the rights, obligations and
immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under Section 6.08 and the obligations of the Indenture
Trustee under Section 4.11) and (vi) the rights of Noteholders as
beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them, and the Indenture Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes, when
(A) either
(1) all Notes theretofore authenticated and delivered (other than
(i) Notes that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 4.03 and (ii) Notes for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to the Issuer
or discharged from such trust, as provided in Section 3.03) have been
delivered to the Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trustee for
cancellation
a. have become due and payable,
b. will become due and payable at the Final Scheduled Payment
Date within one year, or
c. have been declared immediately due and payable pursuant to
Section 5.02.
and the Issuer, in the case of a. or b. above, has irrevocably deposited
or caused to be irrevocably deposited with the Indenture Trustee cash or
direct obligations of or obligations guaranteed by the United States of
America (which will mature prior to the date such amounts are payable),
in trust for such purpose, in an amount sufficient to pay and discharge
the entire indebtedness on such Notes and Certificates then outstanding
not theretofore delivered to the Indenture Trustee for cancellation when
due on the Final Scheduled Payment Date;
(B) the Issuer has paid or caused to be paid all other sums payable
or to become payable hereunder, including, without limitation, all
expenses incurred by the Indenture Trustee in connection with the
defeasance described in the immediately preceding paragraph and
under the Insurance Agreement by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee and the Credit
Enhancer an Officer's Certificate and an Opinion of Counsel, each
meeting the applicable requirements of Section 10.01 and each
stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been
complied with and, if the Opinion of Counsel relates to a deposit
made in connection with Section 4.10(A)(2)b. above, such opinion
shall further be to the effect that such deposit will not have any
material adverse tax consequences to the Issuer, any Noteholders or
any Certificateholders.
Section 4.11. Application of Trust Money. All monies deposited with the
Indenture Trustee pursuant to Section 4.10 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent or
Certificate Paying Agent, as the Indenture Trustee may determine, to the
Holders of Securities, of all sums due and to become due thereon for principal
and interest; but such monies need not be segregated from other funds except
to the extent required herein or required by law.
Section 4.12. Reserved.
Section 4.13. Repayment of Monies Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the
Notes, all monies then held by any Person other than the Indenture Trustee
under the provisions of this Indenture with respect to such Notes shall, upon
demand of the Issuer, be paid to the Indenture Trustee to be held and applied
according to Section 3.05 and thereupon such Paying Agent shall be released
from all further liability with respect to such monies.
Section 4.14. Temporary Notes. Pending the preparation of any Definitive
Notes, the Issuer may execute and upon its written direction, the Indenture
Trustee may authenticate and make available for delivery, temporary Notes that
are printed, lithographed, typewritten, photocopied or otherwise produced, in
any denomination, substantially of the tenor of the Definitive Notes in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes may
determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive
Notes to be prepared without unreasonable delay. After the preparation of the
Definitive Notes, the temporary Notes shall be exchangeable for Definitive
Notes upon surrender of the temporary Notes at the office or agency of the
Indenture Trustee, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, the Issuer shall execute and
the Indenture Trustee shall authenticate and make available for delivery, in
exchange therefor, Definitive Notes of authorized denominations and of like
tenor and aggregate principal amount. Until so exchanged, such temporary Notes
shall in all respects be entitled to the same benefits under this Indenture as
Definitive Notes.
ARTICLE V.
Default and Remedies
Section 5.01. Events of Default. The Issuer shall deliver to the
Indenture Trustee and the Credit Enhancer, within five days after learning of
the occurrence any event which with the giving of notice and the lapse of time
would become an Event of Default written notice in the form of an Officer's
Certificate of its status and what action the Issuer is taking or proposes to
take with respect thereto.
Section 5.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default described in clauses (i), (ii) or (iii) of the definition
thereof should occur, then and in every such case the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Security
Balances of all Notes with the prior written consent of the Credit Enhancer,
or the Credit Enhancer may declare the Notes to be immediately due and
payable, by a notice in writing to the Issuer (and to the Indenture Trustee if
given by Noteholders), and upon any such declaration the unpaid principal
amount of such class of Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable. If an Event of Default described in clause (iv) or (v) of the
definition thereof shall occur, the Notes shall automatically be declared due
and payable hereunder.
At any time after such declaration of acceleration of maturity with
respect to an Event of Default has been made and before a judgment or decree
for payment of the money due has been obtained by the Indenture Trustee as
hereinafter in this Article V provided, the Holders of Notes representing a
majority of the Security Balances of all Notes, by written notice to the
Issuer and the Indenture Trustee with the written consent of the Credit
Enhancer, or the Credit Enhancer, may in writing waive the related Event of
Default and rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee
a sum sufficient to pay:
(A) all payments of principal of and interest on the Notes
and all other amounts that would then be due hereunder or upon the
Notes if the Event of Default giving rise to such acceleration had
not occurred; and
(B) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses, disbursements
and advances of the Indenture Trustee and its agents and counsel;
and
(ii) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such acceleration, have
been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.
(a) The Issuer covenants that if default in the payment of (i) any
interest on any Note when the same becomes due and payable, and such default
continues for a period of five days, or (ii) the principal of or any
installment of the principal of any Note when the same becomes due and
payable, the Issuer shall, upon demand of the Indenture Trustee, pay to it,
for the benefit of the Holders of Notes, the whole amount then due and payable
on the Notes for principal and interest, with interest upon the overdue
principal, and in addition thereto such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee
and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an
express trust, subject to the provisions of Section 10.17 hereof may with the
consent of the Credit Enhancer, and if the Credit Enhancer so directs, shall
institute a Proceeding for the collection of the sums so due and unpaid, and
may with the consent of the Credit Enhancer, and if the Credit Enhancer so
directs, shall prosecute such Proceeding to judgment or final decree, and may
with the consent of the Credit Enhancer, and if the Credit Enhancer so
directs, shall enforce the same against the Issuer or other obligor upon the
Notes and collect in the manner provided by law out of the property of the
Issuer or other obligor upon the Notes, wherever situated, the monies adjudged
or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee subject to the provisions of Section 10.17 hereof may, as more
particularly provided in Section 5.04, in its discretion, with the consent of
the Credit Enhancer, and if the Credit Enhancer so directs, shall proceed to
protect and enforce its rights and the rights of the Noteholders, by such
appropriate Proceedings as the Indenture Trustee or the Credit Enhancer, as
applicable, shall deem most effective to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Indenture
Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Trust Estate, Proceedings under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial Proceedings
relative to the Issuer or other obligor upon the Notes, or to the creditors or
property of the Issuer or such other obligor, the Indenture Trustee,
irrespective of whether the principal of any Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective
of whether the Indenture Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by intervention
in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for reasonable
compensation to the Indenture Trustee and each predecessor Indenture Trustee,
and their respective agents, attorneys and counsel, and for reimbursement of
all expenses and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence, willful misconduct or bad faith) and of the Noteholders allowed in
such Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes in any election of a trustee, a standby
trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of the Indenture
Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Indenture
Trustee or the Holders of Notes allowed in any judicial proceedings relative
to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, in the event that the Indenture
Trustee shall consent to the making of payments directly to such Noteholders,
to pay to the Indenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Indenture Trustee, each predecessor Indenture
Trustee and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee except as a result of
negligence, willful misconduct or bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment
or composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such action or
proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the benefit of the Holders of the Notes.
(g) In any Proceedings brought by the Indenture Trustee (and also
any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Holders of the Notes and the Credit
Enhancer, and it shall not be necessary to make any Noteholder or the Credit
Enhancer a party to any such Proceedings.
Section 5.04. Remedies; Priorities.
(a) If an Event of Default shall have occurred and be continuing,
the Indenture Trustee subject to the provisions of Section 10.17 hereof may
with the prior written consent of the Credit Enhancer, or shall at the written
direction of the Credit Enhancer do one or more of the following (subject to
Section 5.05):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes or
under this Indenture with respect thereto, whether by declaration or
otherwise, and all amounts payable under the Insurance Agreement, enforce any
judgment obtained, and collect from the Issuer and any other obligor upon such
Notes monies adjudged due;
(ii) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee and the Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and conducted
in any manner permitted by law;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Trust Estate following an Event of Default, unless (A) the
Indenture Trustee is directed to do so by the Credit Enhancer, (B) the
Indenture Trustee obtains the consent of the Holders of 100% of the aggregate
Security Balances of the Notes and the Credit Enhancer, (C) the proceeds of
such sale or liquidation distributable to Holders are sufficient to discharge
in full all amounts then due and unpaid upon the Notes for principal and
interest and to reimburse the Credit Enhancer for any amounts drawn under the
Credit Enhancement Instrument and any other amounts due the Credit Enhancer
under the Insurance Agreement or (D) the Indenture Trustee determines that the
Revolving Credit Loans will not continue to provide sufficient funds for the
payment of principal of and interest on the Notes as they would have become
due if the Notes had not been declared due and payable, and the Indenture
Trustee obtains the consent of the Credit Enhancer, and of the Holders of 66
2/3% of the aggregate Security Balances of the Notes. In determining such
sufficiency or insufficiency with respect to clause (C) and (D), the Indenture
Trustee may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose. Notwithstanding the foregoing, so long as a Servicing
Default has not occurred, any Sale of the Trust Estate shall be made subject
to the continued servicing of the Revolving Credit Loans by the Servicer as
provided in the Servicing Agreement.
(b) If the Indenture Trustee collects any money or property pursuant
to this Article V, it shall pay out the money or property in the order
described in Section 3.05 hereof, except that payments pursuant to clause
(viii) shall be made without regard to the Accelerated Principal Payment
Amount but rather shall be made until the Security Balance of the Notes is
reduced to zero.
The Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 5.04. At least 15 days before
such record date, the Indenture Trustee shall mail to each Noteholder a notice
that states the record date, the payment date and the amount to be paid.
Section 5.05. Optional Preservation of the Trust Estate. If the Notes
have been declared to be due and payable under Section 5.02 following an Event
of Default and such declaration and its consequences have not been rescinded
and annulled, the Indenture Trustee may (with the prior written consent of the
Credit Enhancer), but need not, (but shall at the written direction of the
Credit Enhancer) elect to take and maintain possession of the Trust Estate. It
is the desire of the parties hereto and the Noteholders that there be at all
times sufficient funds for the payment of principal of and interest on the
Notes and other obligations of the Issuer including payment to the Credit
Enhancer, and the Indenture Trustee shall take such desire into account when
determining whether or not to take and maintain possession of the Trust
Estate. In determining whether to take and maintain possession of the Trust
Estate, the Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm of national
reputation (which opinion shall not be an expense of the Indenture Trustee) as
to the feasibility of such proposed action and as to the sufficiency of the
Trust Estate for such purpose.
Section 5.06. Limitation of Suits. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless and subject to the provisions of Section 10.17
hereof, the Credit Enhancer consents and:
(i) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the Security Balances
of the Notes have made written request to the Indenture Trustee to institute
such Proceeding in respect of such Event of Default in its own name as
Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute such
Proceedings; and
(v) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the Holders
of a majority of the Security Balances of the Notes or by the Credit Enhancer.
It is understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes, each representing less than a majority of the Security Balances of the
Notes, the Indenture Trustee in its sole discretion may determine what action,
if any, shall be taken, notwithstanding any other provisions of this
Indenture.
Section 5.07. Unconditional Rights of Noteholders to Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional,
to receive payment of the principal of and interest, if any, on such Note on
or after the respective due dates thereof expressed in such Note or in this
Indenture and to institute suit for the enforcement of any such payment, and
such right shall not be impaired without the consent of such Holder.
Section 5.08. Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right
or remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had
been instituted.
Section 5.09. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee, the Credit Enhancer or to
the Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 5.10. Delay or Omission Not a Waiver. No delay or omission of the
Indenture Trustee, the Credit Enhancer or any Holder of any Note to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
Section 5.11. Control by Credit Enhancer or Noteholders. The Holders of a
majority of the Security Balances of Notes with the prior written consent of
the Credit Enhancer, or the Credit Enhancer (so long as no Credit Enhancer
Default exists) shall have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Indenture Trustee
with respect to the Notes or exercising any trust or power conferred on the
Indenture Trustee; provided that:
(i) such direction shall not be in conflict with any rule of
law or with this Indenture;
(ii) subject to the express terms of Section 5.04, any
direction to the Indenture Trustee to sell or liquidate the Trust Estate shall
be by Holders of Notes representing not less than 100% of the Security
Balances of Notes with the consent of the Credit Enhancer, or the Credit
Enhancer (so long as no Credit Enhancer Default exists);
(iii) if the conditions set forth in Section 5.05 have been
satisfied and the Indenture Trustee elects to retain the Trust Estate pursuant
to such Section, then any direction to the Indenture Trustee by Holders of
Notes representing less than 100% of the Security Balances of Notes to sell or
liquidate the Trust Estate shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section, subject
to Section 6.01, the Indenture Trustee need not take any action that it
determines in its discretion might involve it in liability or might materially
adversely affect the rights of any Noteholders not consenting to such action.
Section 5.12. Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.02, the
Holders of Notes of not less than a majority of the Security Balances of the
Notes with the prior written consent of the Credit Enhancer, or the Credit
Enhancer (so long as no Credit Enhancer Default exists) may waive any past
Event of Default and its consequences except an Event of Default (a) with
respect to payment of principal of or interest on any of the Notes or (b) in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Note. In the case of any such
waiver, the Issuer, the Indenture Trustee and the Holders of the Notes shall
be restored to their respective former positions and rights hereunder; but no
such waiver shall extend to any subsequent or other Event of Default or impair
any right consequent thereto.
Upon any such waiver, any Event of Default arising therefrom shall
be deemed to have been cured and not to have occurred, for every purpose of
this Indenture; but no such waiver shall extend to any subsequent or other
Event of Default or impair any right consequent thereto.
Section 5.13. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Indenture Trustee for any action taken, suffered or
omitted by it as Indenture Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a) any suit instituted by
the Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Security Balances of the Notes or (c) any suit instituted by any Noteholder
for the enforcement of the payment of principal of or interest on any Note on
or after the respective due dates expressed in such Note and in this
Indenture.
Section 5.14. Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it shall not hinder, delay or impede the execution of any power herein granted
to the Indenture Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 5.15. Sale of Trust Estate.
(a) The power to effect any sale or other disposition (a "Sale") of
any portion of the Trust Estate pursuant to Section 5.04 is expressly subject
to the provisions of Section 5.05 and this Section 5.15. The power to effect
any such Sale shall not be exhausted by any one or more Sales as to any
portion of the Trust Estate remaining unsold, but shall continue unimpaired
until the entire Trust Estate shall have been sold or all amounts payable on
the Notes and under this Indenture and under the Insurance Agreement shall
have been paid. The Indenture Trustee may from time to time postpone any
public Sale by public announcement made at the time and place of such Sale.
The Indenture Trustee hereby expressly waives its right to any amount fixed by
law as compensation for any Sale.
(b) The Indenture Trustee shall not in any private Sale sell the
Trust Estate, or any portion thereof, unless:
(1) the Holders of all Notes (with the prior written consent of
the Credit Enhancer) or the Credit Enhancer consents to, or direct the
Indenture Trustee to make or the Indenture Trustee may make (with the consent
of the Credit Enhancer and all Holders of the Notes), such Sale, or
(2) the proceeds of such Sale would be not less than the entire
amount which would be payable to the Noteholders under the Notes, the
Certificateholders under the Certificates and the Credit Enhancer in respect
of amounts drawn under the Credit Enhancement Instrument and any other amounts
due the Credit Enhancer under the Insurance Agreement, in full payment thereof
in accordance with Section 5.02, on the Payment Date next succeeding the date
of such Sale, or
(3) the Indenture Trustee determines, in its sole discretion,
that the conditions for retention of the Trust Estate set forth in Section
5.05 cannot be satisfied (in making any such determination, the Indenture
Trustee may rely upon an opinion of an Independent investment banking firm
obtained and delivered as provided in Section 5.05), and the Credit Enhancer
consents in writing to such Sale, and the Holders representing at least
66-2/3% of the Security Balances of the Notes consent to such Sale.
The purchase by the Indenture Trustee of all or any portion of the Trust
Estate at a private Sale shall not be deemed a Sale or other disposition
thereof for purposes of this Section 5.15(b).
(c) Unless the Holders and the Credit Enhancer have otherwise
consented or directed the Indenture Trustee, at any public Sale of all or any
portion of the Trust Estate at which a minimum bid equal to or greater than
the amount described in paragraph (2) of subsection (b) of this Section 5.15
has not been established by the Indenture Trustee and no Person bids an amount
equal to or greater than such amount, the Indenture Trustee shall bid an
amount at least $1.00 more than the highest other bid.
(d) In connection with a Sale of all or any portion of the Trust
Estate:
(1) any Holder or Holders of Notes may bid for and with the consent
of the Credit Enhancer purchase the property offered for sale, and upon
compliance with the terms of sale may hold, retain and possess and dispose of
such property, without further accountability, and may, in paying the purchase
money therefor, deliver any Notes or claims for interest thereon in lieu of
cash up to the amount which shall, upon distribution of the net proceeds of
such sale, be payable thereon, and such Notes, in case the amounts so payable
thereon shall be less than the amount due thereon, shall be returned to the
Holders thereof after being appropriately stamped to show such partial
payment;
(2) the Indenture Trustee may bid for and acquire the property
offered for Sale in connection with any Sale thereof, and, subject to any
requirements of, and to the extent permitted by, applicable law in connection
therewith, may purchase all or any portion of the Trust Estate in a private
sale, and, in lieu of paying cash therefor, may make settlement for the
purchase price by crediting the gross Sale price against the sum of (A) the
amount which would be distributable to the Holders of the Notes and Holders of
Certificates and amounts owing to the Credit Enhancer as a result of such Sale
in accordance with Section 5.04(b) on the Payment Date next succeeding the
date of such Sale and (B) the expenses of the Sale and of any Proceedings in
connection therewith which are reimbursable to it, without being required to
produce the Notes in order to complete any such Sale or in order for the net
Sale price to be credited against such Notes, and any property so acquired by
the Indenture Trustee shall be held and dealt with by it in accordance with
the provisions of this Indenture;
(3) the Indenture Trustee shall execute and deliver an appropriate
instrument of conveyance transferring its interest in any portion of the Trust
Estate in connection with a Sale thereof;
(4) the Indenture Trustee is hereby irrevocably appointed the agent
and attorney-in-fact of the Issuer to transfer and convey its interest in any
portion of the Trust Estate in connection with a Sale thereof, and to take all
action necessary to effect such Sale; and
(5) no purchaser or transferee at such a Sale shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any monies.
Section 5.16. Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the lien of this Indenture nor any rights
or remedies of the Indenture Trustee or the Noteholders shall be impaired by
the recovery of any judgment by the Indenture Trustee against the Issuer or by
the levy of any execution under such judgment upon any portion of the Trust
Estate or upon any of the assets of the Issuer. Any money or property
collected by the Indenture Trustee shall be applied in accordance with Section
5.04(b).
Section 5.17. Performance and Enforcement of Certain Obligations.
(a) Promptly following a written direction from (a) the Credit
Enhancer or (b) the Indenture Trustee with the written consent of the Credit
Enhancer, the Issuer, in its capacity as holder of the Revolving Credit Loans,
shall, with the written consent of the Credit Enhancer, take all such lawful
action as the Credit Enhancer or the Indenture Trustee may request to cause
the Issuer to compel or secure the performance and observance by the Seller
and the Servicer, as applicable, of each of their obligations to the Issuer
under or in connection with the Revolving Credit Loan Purchase Agreement and
the Servicing Agreement, and to exercise any and all rights, remedies, powers
and privileges lawfully available to the Issuer under or in connection with
the Revolving Credit Loan Purchase Agreement and the Servicing Agreement to
the extent and in the manner directed by the Indenture Trustee, as pledgee of
the Revolving Credit Loans, including the transmission of notices of default
on the part of the Seller or the Servicer thereunder and the institution of
legal or administrative actions or proceedings to compel or secure performance
by the Seller or the Servicer of each of their obligations under the Revolving
Credit Loan Purchase Agreement and the Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee, as pledgee of the Revolving Credit Loans, subject to the
rights of the Credit Enhancer under the Servicing Agreement may, and at the
direction (which direction shall be in writing or by telephone (confirmed in
writing promptly thereafter)) of the Holders of 66-2/3% of the Security
Balances of the Notes, with the consent of the Credit Enhancer shall, exercise
all rights, remedies, powers, privileges and claims of the Issuer against the
Seller or the Servicer under or in connection with the Revolving Credit Loan
Purchase Agreement and the Servicing Agreement, including the right or power
to take any action to compel or secure performance or observance by the Seller
or the Servicer, as the case may be, of each of their obligations to the
Issuer thereunder and to give any consent, request, notice, direction,
approval, extension or waiver under the Revolving Credit Loan Purchase
Agreement and the Servicing Agreement, as the case may be, and any right of
the Issuer to take such action shall not be suspended. In connection
therewith, as determined by the Indenture Trustee, the Issuer shall take all
actions necessary to effect the transfer of the Revolving Credit Loans to the
Indenture Trustee.
ARTICLE VI.
The Indenture Trustee
Section 6.01. Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture against the
Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates, reports or
opinions furnished to the Indenture Trustee and conforming to the requirements
of this Indenture; however, the Indenture Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section 6.01;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved that
the Indenture Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it (A) pursuant to Section 5.11 or (B) from the Credit
Enhancer, which it is entitled to give under any of the Basic Documents.
(d) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing with
the Issuer.
(e) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms
of this Indenture or the Trust Agreement.
(f) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section and to the provisions of
the TIA.
Section 6.02. Rights of Indenture Trustee.
(a) The Indenture Trustee may rely on any document believed by it to
be genuine and to have been signed or presented by the proper person. The
Indenture Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Indenture Trustee acts or refrains from acting, it
may require an Officer's Certificate or an Opinion of Counsel. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on an Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the Indenture Trustee's
conduct does not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
Section 6.03. Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Issuer or its Affiliates with
the same rights it would have if it were not Indenture Trustee. Any Note
Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Indenture Trustee must comply with Sections 6.11 and 6.12.
Section 6.04. Indenture Trustee's Disclaimer. The Indenture Trustee shall
not be (i) responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, (ii) accountable for the Issuer's use
of the proceeds from the Notes or (iii) responsible for any statement of the
Issuer in the Indenture or in any document issued in connection with the sale
of the Notes or in the Notes other than the Indenture Trustee's certificate of
authentication.
Section 6.05. Notice of Event of Default. If an Event of Default occurs
and is continuing and if it is known to a Responsible Officer of the Indenture
Trustee, the Indenture Trustee shall give notice thereof to the Credit
Enhancer. The Indenture Trustee shall mail to each Noteholder notice of the
Event of Default within 90 days after it occurs.
Section 6.06. Reports by Indenture Trustee to Holders. The Indenture
Trustee shall deliver to each Noteholder such information as may be required
to enable such holder to prepare its federal and state income tax returns. In
addition, upon the Issuer's written request, the Indenture Trustee shall
promptly furnish information reasonably requested by the Issuer that is
reasonably available to the Indenture Trustee to enable the Issuer to perform
its federal and state income tax reporting obligations.
Section 6.07. Tax. The Indenture Trustee shall prepare and deliver the
income tax returns, tax elections, financial statements, and such annual or
other reports of the Trust pursuant to Section 2.06 of the Trust Agreement;
provided, however, that the Indenture Trustee shall not be required to compute
the Trust's gross income except to the extent it can do so without
unreasonable effort or expense based upon income statements furnished to it;
and provided, further, that the Indenture Trustee shall not be required to
prepare and file partnership tax returns on behalf of the Trust unless it
receives an Opinion of Counsel (which shall not be at the Indenture Trustee's
expense, but shall be at the expense of the Seller or other party furnishing
such opinion) as to the necessity of such filings. The Indenture Trustee shall
be paid additional reasonable compensation by the Seller for the preparation
of partnership tax returns on behalf of the Trust.
Section 6.08. Compensation and Indemnity. The Issuer shall pay the
Indenture Trustee Fee to the Indenture Trustee on each Payment Date as
compensation for its services. The Indenture Trustee shall be compensated and
indemnified by the Servicer in accordance with Section 6.06 of the Servicing
Agreement, and all amounts owing to the Indenture Trustee hereunder in excess
of such amount shall be paid solely as provided in Section 3.05 hereof
(subject to the priorities set forth therein). The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Issuer shall reimburse the Indenture Trustee for all
reasonable out-of-pocket expenses incurred or made by it, including Transition
Costs, costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts. The Issuer shall indemnify the Indenture Trustee
against any and all loss, liability or expense (including attorneys' fees)
incurred by it in connection with the administration of this trust and the
performance of its duties hereunder. The Indenture Trustee shall notify the
Issuer promptly of any claim for which it may seek indemnity. Failure by the
Indenture Trustee to so notify the Issuer shall not relieve the Issuer of its
obligations hereunder. The Issuer shall defend any such claim, and the
Indenture Trustee may have separate counsel and the Issuer shall pay the fees
and expenses of such counsel. The Issuer is not obligated to reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Indenture Trustee through the Indenture Trustee's own willful misconduct,
negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant
to this Section 6.08 shall survive the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of an Event of Default
specified in clause (iv) or (v) of the definition thereof with respect to the
Issuer, the expenses are intended to constitute expenses of administration
under Title 11 of the United States Code or any other applicable federal or
state bankruptcy, insolvency or similar law.
Section 6.09. Replacement of Indenture Trustee. No resignation or removal
of the Indenture Trustee and no appointment of a successor Indenture Trustee
shall become effective until the acceptance of appointment by the Credit
Enhancer and the successor Indenture Trustee pursuant to this Section 6.08.
The Indenture Trustee may resign at any time by so notifying the Issuer and
the Credit Enhancer. The Holders of a majority of Security Balances of the
Notes or the Credit Enhancer may remove the Indenture Trustee by so notifying
the Indenture Trustee and the Credit Enhancer and may appoint a successor
Indenture Trustee. The Issuer shall (with the consent of the Credit Enhancer)
remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.12;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
fulfilling its duties under the Basic Documents.
If the Indenture Trustee resigns or is removed or if a vacancy
exists in the office of the Indenture Trustee for any reason (the Indenture
Trustee in such event being referred to herein as the retiring Indenture
Trustee), the Credit Enhancer may (and if the Credit Enhancer shall fail to do
so, the Issuer shall promptly) appoint a successor Indenture Trustee with the
prior written consent of the Credit Enhancer which consent will not be
unreasonably withheld. In addition, the Indenture Trustee will resign to avoid
being directly or indirectly controlled by the Issuer.
A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to the Issuer.
Thereupon, the resignation or removal of the retiring Indenture Trustee shall
become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. The
successor Indenture Trustee shall mail a notice of its succession to
Noteholders. The retiring Indenture Trustee shall promptly transfer all
property held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Holders of a majority of Security
Balances of the Notes (with the consent of the Credit Enhancer) may petition
any court of competent jurisdiction for the appointment of a successor
Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.12, any
Noteholder (with the consent of the Credit Enhancer) may petition any court of
competent jurisdiction for the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's obligations under Section 6.08 shall continue for
the benefit of the retiring Indenture Trustee.
Section 6.10. Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture Trustee;
provided, that such corporation or banking association shall be otherwise
qualified and eligible under Section 6.12. The Indenture Trustee shall provide
the Rating Agencies written notice of any such transaction after the Closing
Date.
In case at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been
authenticated but not delivered, any such successor to the Indenture Trustee
may adopt the certificate of authentication of any predecessor trustee, and
deliver such Notes so authenticated; and in case at that time any of the Notes
shall not have been authenticated, any successor to the Indenture Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Indenture Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Indenture Trustee shall
have.
Section 6.11. Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Owner Trust, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Noteholders, such title to the Trust Estate, or any part thereof, and, subject
to the other provisions of this Section, such powers, duties, obligations,
rights and trusts as the Indenture Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 6.12 and no
notice to Noteholders of the appointment of any co-trustee or separate trustee
shall be required under Section 6.09 hereof.
(b) Every 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 Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture 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 Indenture 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
Indenture 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 Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
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 VI. 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 Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Indenture Trustee. Every such
instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the Indenture 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 Indenture Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
Section 6.12. Eligibility; Disqualification. The Indenture Trustee shall
at all times satisfy the requirements of TIA ss. 310(a). The Indenture Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition and it or its parent
shall have a long-term debt rating of A or better by Moody's. The Indenture
Trustee shall comply with TIA ss. 310(b), including the optional provision
permitted by the second sentence of TIA ss. 310(b)(9); provided, however, that
there shall be excluded from the operation of TIA ss. 310(b)(1) any indenture
or indentures under which other securities of the Issuer are outstanding if
the requirements for such exclusion set forth in TIA ss. 310(b)(1) are met.
Section 6.13. Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA ss. 311(a) to the extent indicated.
Section 6.14. Representations and Warranties. The Indenture Trustee
hereby represents that:
(i) The Indenture Trustee is duly organized, validly existing
and in good standing under the laws of the United States of America with power
and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted.
(ii) The Indenture Trustee has the power and authority to
execute and deliver this Indenture and to carry out its terms; and the
execution, delivery and performance of this Indenture have been duly
authorized by the Indenture Trustee by all necessary corporate action.
(iii) The consummation of the transactions contemplated by this
Indenture and the fulfillment of the terms hereof do not conflict with, result
in any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the articles of organization
or bylaws of the Indenture Trustee or any agreement or other instrument to
which the Indenture Trustee is a party or by which it is bound.
(iv) To the Indenture Trustee's best knowledge, there are no
proceedings or investigations pending or threatened before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Indenture Trustee or its properties: (A)
asserting the invalidity of this Indenture (B) seeking to prevent the
consummation of any of the transactions contemplated by this Indenture or (C)
seeking any determination or ruling that might materially and adversely affect
the performance by the Indenture Trustee of its obligations under, or the
validity or enforceability of, this Indenture.
(v) The Indenture Trustee does not have notice of any adverse
claim (as such terms are used in Delaware UCC Section 8-302) with respect to
the Revolving Credit Loans.
Section 6.15. Directions to Indenture Trustee. The Indenture Trustee is
hereby directed:
(a) to accept the pledge of the Revolving Credit Loans and hold the
assets of the Trust in trust for the Noteholders and the Credit Enhancer;
(b) to authenticate and deliver the Notes substantially in the form
prescribed by Exhibit A in accordance with the terms of this Indenture; and
(c) to take all other actions as shall be required to be taken by
the terms of this Indenture.
Section 6.16. Indenture Trustee May Own Securities. The Indenture
Trustee, in its individual or any other capacity may become the owner or
pledgee of Securities with the same rights it would have if it were not
Indenture Trustee.
ARTICLE VII.
Noteholders' Lists and Reports
Section 7.01. Issuer to Furnish Indenture Trustee Names and Addresses of
Noteholders. The Issuer will furnish or cause to be furnished to the Indenture
Trustee (a) not more than five days after each Record Date, a list, in such
form as the Indenture Trustee may reasonably require, of the names and
addresses of the Holders of Notes as of such Record Date and, (b) at such
other times as the Indenture Trustee and the Credit Enhancer may request in
writing, within 30 days after receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 10 days prior to
the time such list is furnished; provided, however, that so long as the
Indenture Trustee is the Note Registrar, no such list shall be required to be
furnished.
Section 7.02. Preservation of Information; Communications to Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as
provided in Section 7.01 and the names and addresses of Holders of Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.01 upon receipt of a new list so furnished.
(i) Noteholders may communicate pursuant to TIA ss. 312(b) with
other Noteholders with respect to their rights under this Indenture or under
the Notes.
(b) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIAss. 312(c).
Section 7.03. Reports by Issuer.
(a) The Issuer shall:
(i) prepare or cause to be prepared the initial current reports
on Form 8-K to be filed prior to the first Payment Date and thereafter within
15 days after each Payment Date, the Indenture Trustee shall, in accordance
with industry standards, file with the Commission via the Electronic Data
Gathering and Retrieval System (EDGAR), a Form 8-K with a copy of the
Statement for such Payment Date as an exhibit thereto. Prior to January 30,
2001, the Indenture Trustee shall, in accordance with industry standards, file
a Form 15 Suspension Notification with respect to the Trust Fund, if
applicable. Prior to March 30, 2001, the Indenture Trustee shall file a Form
10-K, in substance conforming to industry standards, with respect to the
Trust. The Trust and the Owner Trustee hereby grant to the Indenture Trustee a
limited power of attorney to execute and file each such document on behalf of
the Trust and Owner Trustee. Such power of attorney shall continue until
either the earlier of (i) receipt by the Indenture Trustee from the Trust and
the Owner Trustee of written termination of such power of attorney and (ii)
the termination of the Trust. The Trust and the Owner Trustee agree to
promptly furnish to the Indenture Trustee, from time to time upon request,
such further information, reports and financial statements within their
control related to this Agreement and the Revolving Credit Loans as the
Indenture Trustee reasonably deems appropriate to prepare and file all
necessary reports with the Commission. The Indenture Trustee shall have no
responsibility to file any items other than those specified in this Section.
(ii) file with the Indenture Trustee, and the Commission in
accordance with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA ss. 313(c))
such summaries of any information, documents and reports required to be filed
by the Issuer pursuant to clauses (i) and (ii) of this Section 7.03(a) and by
rules and regulations prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
Section 7.04. Reports by Indenture Trustee. If required by TIA ss.
313(a), within 60 days after each August 1 beginning with August 1, 2000, the
Indenture Trustee shall mail to each Noteholder as required by TIA ss. 313(c)
and to the Credit Enhancer a brief report dated as of such date that complies
with TIA ss. 313(a). The Indenture Trustee also shall comply with TIA ss.
313(b).
A copy of each report at the time of its mailing to Noteholders
shall be filed by the Indenture Trustee with the Commission, if required, and
each stock exchange, if any, on which the Notes are listed. The Issuer shall
notify the Indenture Trustee if and when the Notes are listed on any stock
exchange.
ARTICLE VIII.
Accounts, Disbursements and Releases
Section 8.01. Collection of Money. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this
Indenture. Except as otherwise expressly provided in this Indenture, if any
default occurs in the making of any payment or performance under any agreement
or instrument that is part of the Trust Estate, the Indenture Trustee may,
with the consent of the Credit Enhancer, and if directed to do so by the
Credit Enhancer, shall take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of
appropriate Proceedings. Any such action shall be without prejudice to any
right to claim a Default or Event of Default under this Indenture and any
right to proceed thereafter as provided in Article V.
Section 8.02. Trust Accounts.
(a) On or prior to the Closing Date, the Indenture Trustee shall
establish and maintain, in the name of the Indenture Trustee, for the benefit
of the Noteholders and the Certificate Paying Agent, on behalf of the
Certificateholders and the Credit Enhancer, the Payment Account as provided in
Section 3.01 of this Indenture.
(b) All monies deposited from time to time in the Payment Account
pursuant to the Servicing Agreement and all deposits therein pursuant to this
Indenture are for the benefit of the Noteholders and the Certificate Paying
Agent, on behalf of the Certificateholders and all investments made with such
monies including all income or other gain from such investments for the period
beginning on and including the Determination Date to but excluding the
Business Day prior to the Payment Date are for the benefit of the Servicer.
On each Payment Date, the Indenture Trustee shall distribute all
amounts on deposit in the Payment Account to Noteholders in respect of the
Notes and in its capacity as Certificate Paying Agent to Certificateholders in
the order of priority set forth in Section 3.05 (except as otherwise provided
in Section 5.04(b).
The Indenture Trustee shall invest any funds in the Payment Account
at the direction of the Servicer, but only in Permitted Investments, as
provided in Section 5.01 of the Servicing Agreement.
Section 8.03. Officer's Certificate. The Indenture Trustee shall receive
at least seven days notice when requested by the Issuer to take any action
pursuant to Section 8.05(a), accompanied by copies of any instruments to be
executed, and the Indenture Trustee shall also require, as a condition to such
action, an Officer's Certificate, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with.
Section 8.04. Termination Upon Distribution to Noteholders. This
Indenture and the respective obligations and responsibilities of the Issuer
and the Indenture Trustee created hereby shall terminate upon the distribution
to the Noteholders, the Certificate Paying Agent (on behalf of the
Certificateholders), the Credit Enhancer and the Indenture Trustee of all
amounts required to be distributed pursuant to Article III; provided, however,
that in no event shall the trust created hereby continue beyond the expiration
of 21 years from the death of the survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the Court of St. James's,
living on the date hereof.
Section 8.05. Release of Trust Estate.
(a) Subject to the payment of its fees and expenses, the Indenture
Trustee may, and when required by the provisions of this Indenture shall,
execute instruments to release property from the lien of this Indenture, or
convey the Indenture Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the Indenture Trustee as
provided in Article VIII hereunder shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions
precedent, or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as (i) there are no
Notes Outstanding, (ii) all sums due the Indenture Trustee pursuant to this
Indenture have been paid, and (iii) all sums due the Credit Enhancer have been
paid, release any remaining portion of the Trust Estate that secured the Notes
from the lien of this Indenture.
(c) The Indenture Trustee shall release property from the lien of
this Indenture pursuant to this Section 8.05 only upon receipt of a request
from the Issuer accompanied by an Officers' Certificate and a letter from the
Credit Enhancer, stating that the Credit Enhancer has no objection to such
request from the Issuer.
(d) The Indenture Trustee shall, at the request of the Issuer or the
Depositor, surrender the Credit Enhancement Instrument to the Credit Enhancer
for cancellation, upon final payment of principal and interest on the Notes.
Section 8.06. Surrender of Notes Upon Final Payment. By acceptance of any
Note, the Holder thereof agrees to surrender such Note to the Indenture
Trustee promptly, prior to such Noteholder's receipt of the final payment
thereon.
ARTICLE IX.
Supplemental Indentures
Section 9.01. Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes but with prior
notice to the Rating Agencies and with the prior written consent of the Credit
Enhancer, the Issuer and the Indenture Trustee, when authorized by an Issuer
Request, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure, convey
and confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to the lien of this
Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein and in
the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of
the Holders of the Notes or the Credit Enhancer, or to surrender any right or
power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may be inconsistent
with any other provision herein or in any supplemental indenture;
(vi) to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental indenture;
provided, that such action shall not materially and adversely affect the
interests of the Holders of the Notes;
(vii) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes and to
add to or change any of the provisions of this Indenture as shall be necessary
to facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI;
(viii) Reserved: or
(ix) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the TIA or under any similar federal statute hereafter
enacted and to add to this Indenture such other provisions as may be expressly
required by the TIA;
provided, however, that no such indenture supplements shall be entered into
unless the Indenture Trustee shall have received an Opinion of Counsel that
entering into such indenture supplement will not have any material adverse tax
consequences to the Noteholders.
The Indenture Trustee is hereby authorized to join in the execution
of any such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an
Issuer Request, may, also without the consent of any of the Holders of the
Notes but with prior notice to the Rating Agencies and the Credit Enhancer,
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, (i) adversely affect in any
material respect the interests of any Noteholder or the Credit Enhancer or
(ii) cause the Issuer to be subject to an entity level tax.
Section 9.02. Supplemental Indentures With Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Request, also
may, with prior notice to the Rating Agencies and with the consent of the
Holders of not less than a majority of the Security Balances of the Notes
affected thereby and the prior written consent of the Credit Enhancer, by Act
of such Holders delivered to the Issuer and the Indenture Trustee, enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner the rights of the Holders of
the Notes under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Note affected
thereby:
(i) change the date of payment of any installment of principal
of or interest on any Note, or reduce the principal amount thereof or the
interest rate thereon, change the provisions of this Indenture relating to the
application of collections on, or the proceeds of the sale of, the Trust
Estate to payment of principal of or interest on the Notes, or change any
place of payment where, or the coin or currency in which, any Note or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of the provisions of this Indenture requiring the application of
funds available therefor, as provided in Article V, to the payment of any such
amount due on the Notes on or after the respective due dates thereof;
(ii) reduce the percentage of the Security Balances of the
Notes, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is required for
any waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding" or modify or alter the exception in the
definition of the term "Holder";
(iv) reduce the percentage of the Security Balances of the
Notes required to direct the Indenture Trustee to direct the Issuer to sell or
liquidate the Trust Estate pursuant to Section 5.04;
(v) modify any provision of this Section 9.02 except to
increase any percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be modified or
waived without the consent of the Holder of each Note affected thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of interest
or principal due on any Note on any Payment Date (including the calculation of
any of the individual components of such calculation); or
(vii) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the Trust
Estate or, except as otherwise permitted or contemplated herein, terminate the
lien of this Indenture on any property at any time subject hereto or deprive
the Holder of any Note of the security provided by the lien of this Indenture;
and provided, further, that such action shall not, as evidenced by an Opinion
of Counsel, cause the Issuer to be subject to an entity level tax.
The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith.
It shall not be necessary for any Act of Noteholders (as defined in
Section 10.03) under this Section 9.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee
of any supplemental indenture pursuant to this Section 9.02, the Indenture
Trustee shall mail to the Holders of the Notes to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
Section 9.03. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02, shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Indenture Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
that affects the Indenture Trustee's own rights, duties, liabilities or
immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations
of rights, obligations, duties, liabilities and immunities under this
Indenture of the Indenture Trustee, the Issuer and the Holders of the Notes
shall thereafter be determined, exercised and enforced hereunder subject in
all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
Section 9.05. Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as
then in effect so long as this Indenture shall then be qualified under the
Trust Indenture Act.
Section 9.06. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee
shall, bear a notation in form approved by the Indenture Trustee as to any
matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X.
Miscellaneous
Section 10.01. Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Indenture, the Issuer
shall furnish to the Indenture Trustee and to the Credit Enhancer (i) an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and (ii) an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except that, in
the case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation
as is necessary to enable such signatory to express an informed
opinion as to whether or not such covenant or condition has been
complied with;
(4) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with; and
(5) if the Signer of such Certificate or Opinion is
required to be Independent, the Statement required by the definition
of the term "Independent".
Section 10.02. Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Seller or the Issuer, stating that the information with
respect to such factual matters is in the possession of the Seller or the
Issuer, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect
to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application
or at the effective date of such certificate or report (as the case may be),
of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such application
granted or to the sufficiency of such certificate or report. The foregoing
shall not, however, be construed to affect the Indenture Trustee's right to
rely upon the truth and accuracy of any statement or opinion contained in any
such document as provided in Article VI.
Section 10.03. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing; and except as herein otherwise expressly provided
such action shall become effective when such instrument or instruments are
delivered to the Indenture Trustee, and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Noteholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.01) conclusive in favor of the Indenture Trustee and the Issuer, if made in
the manner provided in this Section 10.03.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Registrar.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of
every Note issued upon the registration thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by
the Indenture Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
Section 10.04. Notices, etc., to Indenture Trustee, Issuer, Credit
Enhancer and Rating Agencies. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Noteholders or other documents provided or
permitted by this Indenture shall be in writing and if such request, demand,
authorization, direction, notice, consent, waiver or Act of Noteholders is to
be made upon, given or furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by the Issuer
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Indenture Trustee at 11000 Broken Land
Parkway, Columbia, MD 21044, Attention MSDWCC 2000-1 with a copy to the
Indenture Trustee's Corporate Trust Office. The Indenture Trustee shall
promptly transmit any notice received by it from the Noteholders to the
Issuer, or
(ii) the Issuer by the Indenture Trustee or by any Noteholder
shall be sufficient for every purpose hereunder if in writing and mailed
first-class, postage prepaid to the Issuer addressed to: MSDWCC HELOC Trust
2000-1, in care of Wilmington Trust Company, or at any other address
previously furnished in writing to the Indenture Trustee by the Issuer. The
Issuer shall promptly transmit any notice received by it from the Noteholders
to the Indenture Trustee, or
(iii) the Credit Enhancer by the Issuer, the Indenture Trustee
or by any Noteholders shall be sufficient for every purpose hereunder to in
writing and mailed, first-class postage pre-paid, or personally delivered or
telecopied to: Financial Security Assurance Inc., 350 Park Avenue, New York,
New York 10022, Attention: Surveillance Department Re: MSDWCC HELOC Trust
2000-1, Asset-Backed Notes, Series 2000-1, Confirmation: (212) 826-0100,
Telecopy Nos. (212) 339-3518, (212) 339-3529 (in each case in which notice or
other communication to FSA refers to an Event of Default, a claim on the
Credit Enhancement Instrument or with respect to which failure on the part of
the Credit Enhancer to respond shall be deemed to constitute consent or
acceptance, then a copy of such notice or other communication should also be
sent to the attention of the General Counsel and the Head - Financial Guaranty
Group and shall be marked to indicate `URGENT MATERIAL ENCLOSED." The Credit
Enhancer shall promptly transmit any notice received by it from the Issuer,
the Indenture Trustee or the Noteholders to the Issuer or Indenture Trustee,
as the case may be.
Notices required to be given to the Rating Agencies by the Issuer,
the Indenture Trustee or the Owner Trustee shall be in writing, personally
delivered or mailed by certified mail, return receipt requested, to (i) in the
case of Moody's, at the following address: Moody's Investors Service, Inc.,
ABS Monitoring Department, 99 Church Street, New York, New York 10007 and (ii)
in the case of Standard & Poor's, at the following address: Standard & Poor's
Ratings Services, 55 Water Street, New York, New York 10041, Attention of
Asset Backed Surveillance Department; or as to each of the foregoing, at such
other address as shall be designated by written notice to the other parties.
Section 10.05. Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at such Person's address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Noteholders is given by
mail, neither the failure to mail such notice nor any defect in any notice so
mailed to any particular Noteholder shall affect the sufficiency of such
notice with respect to other Noteholders, and any notice that is mailed in the
manner herein provided shall conclusively be presumed to have been duly given
regardless of whether such notice is in fact actually received.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed
to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute an Event of
Default.
Section 10.06. Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the
Issuer may enter into any agreement with any Holder of a Note providing for a
method of payment, or notice by the Indenture Trustee to such Holder, that is
different from the methods provided for in this Indenture for such payments or
notices. The Issuer shall furnish to the Indenture Trustee a copy of each such
agreement and the Indenture Trustee shall cause payments to be made and
notices to be given in accordance with such agreements.
Section 10.07. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required
to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
The provisions of TIA ss.ss. 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
Section 10.08. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 10.09. Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee
in this Indenture shall bind its successors, co-trustees and agents.
Section 10.10. Separability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 10.11. Benefits of Indenture. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders, the Credit
Enhancer, and any other party secured hereunder, and any other Person with an
ownership interest in any part of the Trust Estate, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 10.12. Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest
shall accrue for the period from and after any such nominal date.
Section 10.13. GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.14. Counterparts. This Indenture may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
Section 10.15. Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
Section 10.16. Issuer Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under this Indenture or any
certificate or other writing delivered in connection herewith or therewith,
against (i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director, employee or agent of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or
the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the Indenture Trustee and the
Owner Trustee have no such obligations in their individual capacity) and
except that any such partner, owner or beneficiary shall be fully liable, to
the extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing to
such entity. For all purposes of this Indenture, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Article VI, VII and VIII of the Trust Agreement.
Section 10.17. No Petition. The Indenture Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree
that they will not at any time institute against the Depositor or the Issuer,
or join in any institution against the Depositor or the Issuer 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
Notes, this Indenture or any of the Basic Documents.
Section 10.18. Inspection. The Issuer agrees that, on reasonable prior
notice, it shall permit any representative of the Indenture Trustee or the
Credit Enhancer, during the Issuer's normal business hours, to examine all the
books of account, records, reports and other papers of the Issuer, to make
copies and extracts therefrom, to cause such books to be audited by
Independent certified public accountants, and to discuss the Issuer's affairs,
finances and accounts with the Issuer's officers, employees, and Independent
certified public accountants, all at such reasonable times and as often as may
be reasonably requested. The Indenture Trustee or the Credit Enhancer shall
and shall cause its representatives to hold in confidence all such information
except to the extent disclosure may be required by law (and all reasonable
applications for confidential treatment are unavailing) and except to the
extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
Section 10.19. Rights of the Credit Enhancer to Exercise Rights of
Noteholder. By accepting its Note, each Noteholder agrees that unless a Credit
Enhancer Default exists, the Credit Enhancer shall have the right to exercise
all rights of the Noteholders under this Agreement without any further consent
of the Noteholders.
Section 10.20. Third-Party Beneficiary. The Credit Enhancer shall be a
third-party beneficiary of this Indenture entitled to enforce the provisions
hereof as if a party hereto.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
MSDWCC HELOC TRUST 2000-1,
as Issuer
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
By:
------------------------------------
Name:
Title:
WELLS FARGO BANK MINNESOTA,
N.A.,
as Indenture Trustee
By:
------------------------------------
Name:
Title:
WELLS FARGO BANK MINNESOTA,
N.A., hereby accepts the appointment
as Paying Agent pursuant to Section
3.03 hereof and as Note Registrar
pursuant to Section 4.02 hereof.
By:
---------------------------------
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __th day of August, 2000, before me personally appeared
[_______________], to me known, who being by me duly sworn, did depose and
say, that he resides at [__________________________________], that he is the
Vice President of the Owner Trustee, one of the corporations described in and
which executed the above instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation;
and that he signed his name thereto by like order.
------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __th day of August, 2000, before me personally appeared
[_______________], to me known, who being by me duly sworn, did depose and
say, that he resides at [__________________________], that he is the Vice
President of Wells Fargo Bank Minnesota, N.A., as Indenture Trustee, one of
the corporations described in and which executed the above instrument; that
she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation; and that he signed his name thereto by
like order.
------------------------
Notary Public
NOTORIAL SEAL
Exhibit A
FORM OF NOTES
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN AND IN THE INDENTURE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF
THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
SELLER, THE DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE OR THE OWNER
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN
THE INDENTURE OR THE BASIC DOCUMENTS.
MSDWCC HELOC TRUST 2000-1
HELOC Asset -Backed Note
Registered Principal Amount: $196,366,000
No. __ Note Rate: Floating
CUSIP NO. 61747 AA5
MSDWCC HELOC Trust 2000-1, a business trust duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of $196,366,000, payable on each Payment
Date in an amount equal to the Percentage Interest specified above of the
aggregate amount, if any, payable from the Payment Account in respect of
principal on the Notes pursuant to Section 3.05 of the Indenture dated as of
August 1, 2000 (the "Indenture") between the Issuer, as Issuer, and Wells
Fargo Bank Minnesota, N.A., as Indenture Trustee (the "Indenture Trustee");
provided, however, that the entire unpaid principal amount of this Note shall
be due and payable on the Payment Date in September 2011, to the extent not
previously paid on a prior Payment Date. Capitalized terms used but not
defined herein are defined in Appendix A of the Indenture.
Interest on the Notes will be paid monthly on each Payment Date at
the Note Rate for the related Interest Period subject to limitations which may
result in Interest Shortfalls (as further described in the Indenture). The
Note Rate for each Interest Period will be a floating rate equal to the lesser
of (i) LIBOR plus 0.29% per annum (or 0.58% on or after the Optional
Redemption Date) and (ii) the Maximum Net Loan Rate. LIBOR for each applicable
Interest Period will be determined on the second LIBOR Business Day
immediately preceding (i) the Closing Date in the case of the first Interest
Period and (ii) the first day of each succeeding Interest Period by the
Indenture Trustee as set forth in the Indenture. All determinations of LIBOR
by the Indenture Trustee shall, in the absence of manifest error, be
conclusive for all purposes, and each holder of this Note, by accepting this
Note, agrees to be bound by such determination. Interest on this Note will
accrue for each Payment Date from the most recent Payment Date on which
interest has been paid (in the case of the first Payment Date, from the
Closing Date) to but excluding such Payment Date. Interest will be computed on
the basis of the actual number of days in each Interest Period and a year
assumed to consist of 360 days. Principal of and interest on this Note shall
be paid in the manner specified on the reverse hereof.
Principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its HELOC Asset-Backed Notes (herein called the "Notes"), all
issued under the Indenture, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Notes are and will be secured by the collateral pledged as
security therefor as provided in the Indenture.
This Note is entitled to the benefits of an irrevocable and
unconditional financial guaranty insurance policy issued by Financial Security
Assurance Inc.
Principal of and interest on this Note will be payable on each
Payment Date, commencing on September 28, 2000, as described in the Indenture.
"Payment Date" means the 25th day of each month, or, if any such date is not a
Business Day, then the next Business Day.
The entire unpaid principal amount of this Note shall be due and
payable in full on the Payment Date in September 2011 pursuant to the
Indenture, to the extent not previously paid on a prior Payment Date.
Notwithstanding the foregoing, if an Event of Default shall have occurred and
be continuing, then the Indenture Trustee or the holders of Notes representing
not less than a majority of the Security Balances of all Notes with the
consent of the Credit Enhancer, or the Credit Enhancer may declare the Notes
to be immediately due and payable in the manner provided in Section 5.02 of
the Indenture. All principal payments on the Notes shall be made pro rata to
the holders of Notes entitled thereto.
Payments of interest on this Note due and payable on each Payment
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by wire transfer or check mailed to
the Person whose name appears as the Registered Holder of this Note (or one or
more Predecessor Notes) on the Note Register as of the close of business on
each Record Date, except that with respect to Notes registered on the Record
Date in the name of the nominee of the Depository Agency (initially, such
nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) effected by any payments made on any Payment Date shall be binding upon
all future holders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof, whether or not
noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount
of this Note on a Payment Date, then the Indenture Trustee, in the name of and
on behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Payment Date by notice mailed or
transmitted by facsimile prior to such Payment Date, and the amount then due
and payable shall be payable only upon presentation and surrender of this Note
at the address specified in such notice of final payment.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note
Register upon surrender of this Note for registration of transfer at the
Corporate Trust Office, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the holder hereof or such holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Securities Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended,
and thereupon one or more new Notes in authorized denominations and in the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the Note Registrar shall require
payment of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any registration of transfer or exchange of this
Note.
Each holder or Beneficial Owner of a Note, by acceptance of a Note,
or, in the case of a Beneficial Owner of a Note, a beneficial interest in a
Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee,
the Seller, the Servicer, the Depositor or the Indenture Trustee on the Notes
or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee
in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture
Trustee or the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law
for any unpaid consideration for stock, unpaid capital contribution or failure
to pay any installment or call owing to such entity.
Each holder or Beneficial Owner of a Note, by acceptance of a Note
or, in the case of a Beneficial Owner of a Note, a beneficial interest in a
Note, covenants and agrees by accepting the benefits of the Indenture that
such holder or Beneficial Owner of a Note will not at any time institute
against the Depositor, the Seller, the Servicer, or the Issuer, or join in any
institution against the Depositor, the Seller, the Servicer or the Issuer of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, the Indenture or the
Basic Documents.
The Issuer has entered into the Indenture and this Note is issued
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer. Each holder of a Note, by acceptance of a Note (and each Beneficial
Owner of a Note by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note is registered
(as of the day of determination or as of such other date as may be specified
in the Indenture) as the owner hereof for all purposes, whether or not this
Note be overdue, and none of the Issuer, the Indenture Trustee or any such
agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the Indenture Trustee and the rights of the holders of the
Notes under the Indenture at any time by the Issuer and the Indenture Trustee
with the consent of the holders of Notes representing a majority of the
Security Balances of all Notes at the time Outstanding and the Credit Enhancer
and with prior notice to the Rating Agencies. The Indenture also contains
provisions permitting the holders of Notes representing specified percentages
of the Security Balances of all Notes, on behalf of the holders of all the
Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note (or any
one of more Predecessor Notes) shall be conclusive and binding upon such
holder and upon all future holders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note. The
Indenture also permits the Issuer and the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
holders of the Notes issued thereunder but with prior notice to the Rating
Agencies and the Credit Enhancer.
The term "Issuer" as used in this Note includes any successor or the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair, the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, Wells Fargo Bank Minnesota, N.A., in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be
had to any of them for, the payment of principal of or interest on this Note
or performance of, or omission to perform, any of the covenants, obligations
or indemnifications contained in the Indenture. The holder of this Note by its
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained in
the Indenture or in this Note.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer and
not in its individual capacity, has caused this Note to be duly executed.
MSDWCC HELOC TRUST 2000-1
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but
solely as Owner Trustee
Dated:
By
-----------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within mentioned Indenture.
WELLS FARGO BANK MINNESOTA, N.A., not
in its individual capacity but solely
as Indenture Trustee
Dated:
By
-----------------------------------
Authorized Signatory
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee: ------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfer unto
----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ---------------------------------------------------
------------------------------------------------------, attorney, to transfer
said Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
------------------------ -------------------------------
Signature Guaranteed*:
-----------------------
* NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note 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 Note Registrar, which
requirements include membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the Note Registrar
in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
<PAGE>
Exhibit 99.1
MORGAN STANLEY ABS CAPITAL I INC.
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
-----------------------------------------
TRUST AGREEMENT
Dated as of August 1, 2000
------------------------------------------
MSDWCC HELOC Asset-Backed Certificates,
Series 2000-1
Table of Contents
Page
ARTICLE I.
Definitions
Section 1.01. Definitions..............................................1
Section 1.02. Other Definitional Provisions............................1
ARTICLE II.
Organization
Section 2.01. Name.....................................................3
Section 2.02. Office...................................................3
Section 2.03. Purposes and Powers......................................3
Section 2.04. Appointment of Owner Trustee.............................4
Section 2.05. Initial Capital Contribution of Owner Trust Estate.......4
Section 2.06. Declaration of Trust.....................................4
Section 2.07. Reserved.................................................4
Section 2.08. Title to Trust Property..................................4
Section 2.09. Situs of Trust...........................................4
Section 2.10. Representations and Warranties of the Depositor..........5
Section 2.11. Payment of Trust Fees....................................5
Section 2.12. Federal Income Tax Allocations...........................5
ARTICLE III.
Conveyance of the Revolving Credit Loans; Certificates
Section 3.01. Conveyance of the Revolving Credit Loans.................6
Section 3.02. Initial Ownership........................................6
Section 3.03. The Initial Certificates.................................6
Section 3.04. Authentication of Certificates...........................6
Section 3.05. Registration of and Limitations on Transfer and Exchange
of Certificates..........................................7
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates........9
Section 3.07. Persons Deemed Certificateholders.......................10
Section 3.08. Access to List of Certificateholders' Names and
Addresses...............................................10
Section 3.09. Maintenance of Office or Agency.........................10
Section 3.10. Cooperation.............................................12
ARTICLE IV.
Authority and Duties of Owner Trustee
Section 4.01. General Authority.......................................13
Section 4.02. General Duties..........................................13
Section 4.03. Action upon Instruction.................................13
Section 4.04. No Duties Except as Specified under Specified Documents
or in Instructions......................................14
Section 4.05. Restrictions............................................14
Section 4.06. Prior Notice to Certificateholders and the Credit
Enhancer with Respect to Certain Matters................14
Section 4.07. Action by Certificateholders with Respect to Certain
Matters.................................................15
Section 4.08. Action by Certificateholders with Respect to
Bankruptcy..............................................15
Section 4.09. Restrictions on Certificateholders' Power...............15
Section 4.10. Majority Control........................................15
Section 4.11. Doing Business in Other Jurisdictions...................16
ARTICLE V.
Application of Trust Funds
Section 5.01. Distributions...........................................17
Section 5.02. Method of Payment.......................................17
Section 5.03. Signature on Returns....................................17
Section 5.04. Statements to Certificateholders........................17
ARTICLE VI.
Concerning the Owner Trustee
Section 6.01. Acceptance of Trusts and Duties.........................18
Section 6.02. Furnishing of Documents.................................19
Section 6.03. Representations and Warranties..........................19
Section 6.04. Reliance; Advice of Counsel.............................20
Section 6.05. Not Acting in Individual Capacity.......................20
Section 6.06. Owner Trustee Not Liable for Certificates or Related
Documents...............................................20
Section 6.07. Owner Trustee May Own Certificates and Notes............21
Section 6.08. Licenses................................................21
ARTICLE VII.
Compensation of Owner Trustee
Section 7.01. Owner Trustee's Fees and Expenses.......................22
Section 7.02. Indemnification.........................................22
Section 7.03. Payments to the Owner Trustee...........................23
ARTICLE VIII.
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement..........................24
ARTICLE IX.
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee..............26
Section 9.02. Replacement of Owner Trustee............................26
Section 9.03. Successor Owner Trustee.................................27
Section 9.04. Merger or Consolidation of Owner Trustee................27
Section 9.05. Appointment of Co-Trustee or Separate Trustee...........27
ARTICLE X.
Miscellaneous
Section 10.01. Amendments..............................................29
Section 10.02. No Legal Title to Owner Trust Estate....................30
Section 10.03. Limitations on Rights of Others.........................30
Section 10.04. Notices.................................................31
Section 10.05. Severability............................................31
Section 10.06. Separate Counterparts...................................31
Section 10.07. Successors and Assigns..................................31
Section 10.08. No Petition.............................................32
Section 10.09. No Recourse.............................................32
Section 10.10. Headings................................................32
Section 10.11. GOVERNING LAW...........................................32
Section 10.12. Integration.............................................32
Section 10.13. Rights of Credit Enhancer to Exercise Rights of
Certificateholders......................................32
Section 10.14. Third Party Beneficiary.................................32
EXHIBITS
Exhibit A - Form of Certificate A-1
Exhibit B - Certificate of Trust of MSDWCC HELOC Trust 2000-1 B-1
Exhibit C - Form of 144A Investment Representation C-1
Exhibit D - Form of Investor Representation Letter D-1
Exhibit E - Form of Transferor Representation Letter E-1
Exhibit F - Form of Certificate of Non-Foreign Status F-1
Exhibit G - Form of ERISA Representation Letter G-1
Exhibit H - Form of Representation Letter H-1
This Trust Agreement, dated as of August 1, 2000 (as amended from time to
time, this "Trust Agreement"), between MORGAN STANLEY ABS CAPITAL I INC., a
Delaware corporation, as depositor (the "Depositor") and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as owner trustee (the "Owner
Trustee"),
In consideration of the mutual agreements herein contained, the Depositor
and the Owner Trustee agree as follows:
ARTICLE I.
Definitions
Section 1.01. Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the
meanings assigned to such terms in Appendix A to the Indenture dated as of
August 1, 2000 (the "Indenture"), between MSDWCC HELOC Trust 2000-1, as
issuer, and Wells Fargo Bank Minnesota, N.A., as indenture trustee. All other
capitalized terms used herein shall have the meanings specified herein.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Trust Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Trust Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Trust Agreement or in any such certificate or other document,
and accounting terms partly defined in this Trust Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Trust Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Trust Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Trust Agreement shall refer to this Trust Agreement
as a whole and not to any particular provision of this Trust Agreement;
Article, Section and Exhibit references contained in this Trust Agreement are
references to Articles, Sections and Exhibits in or to this Trust Agreement
unless otherwise specified; and the term "including" shall mean "including
without limitation".
(d) The definitions contained in this Trust Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II.
Organization
Section 2.01. Name. The trust created hereby (the "Trust") shall be known
as "MSDWCC HELOC Trust 2000-1," in which name the Owner Trustee may conduct
the business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
Section 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
Section 2.03. Purposes and Powers. The purpose of the Trust is to engage
in the following activities:
(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Trust Agreement and to sell such Notes and the
Certificates;
(ii) to acquire the Revolving Credit Loans and to pay the
organizational, start-up and transactional expenses of the Trust;
(iii) to assign, grant, transfer, pledge and convey the
Revolving Credit Loans pursuant to the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to Section 5.01 any portion of
the Revolving Credit Loans released from the Lien of, and remitted to the
Trust pursuant to the Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) 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, including, without
limitation, to accept additional contributions of equity that are not subject
to the Lien of the Indenture; and
(vi) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of distributions to the
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 Trust
Agreement or the Basic Documents while any Note is outstanding without the
consent of the Holders of a majority of the Certificate Percentage Interest of
the Certificates, the Credit Enhancer (as evidenced in writing) and the
Indenture Trustee.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Owner Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the
Trust, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of
the foregoing contribution, which shall constitute the initial corpus of the
Trust and shall be deposited in the Certificate Distribution Account. The
Owner Trustee also acknowledges on behalf of the Issuer, the receipt in trust
of the Revolving Credit Loans and the Credit Enhancement Instrument assigned
to the Trust pursuant to Section 3.01, which shall constitute the Owner Trust
Estate.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it shall hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a business trust
under the Business Trust Statute and that this Trust Agreement constitute the
governing instrument of such business trust. Effective as of the date hereof,
the Owner Trustee shall have all rights, powers and duties set forth herein
and in the Business Trust Statute with respect to accomplishing the purposes
of the Trust. It is the intention of the parties hereto that, for income and
franchise tax purposes, the Trust shall be treated as a security arrangement,
with the assets of the Trust being the Trust Estate and the owners of the
related Trust Estate being the owners of the Certificates. The parties agree
that, unless otherwise required by appropriate tax authorities, the Trust will
file or cause to be filed annual or other necessary returns, reports and other
forms, if any, consistent with the characterization of the Trust as provided
in the preceding sentence for such tax purposes. Effective as of the date
hereof, the Owner Trustee shall have all rights, powers and duties set forth
herein and in the Business Trust Statute with respect to accomplishing the
purposes of the Trust.
Section 2.07. Reserved.
Section 2.08. Title to Trust Property. Subject to the Indenture, legal
title to the Owner Trust Estate shall be vested at all times in the Trust as a
separate legal entity except where applicable law in any jurisdiction requires
title to any part of the Owner Trust Estate to be vested in a trustee or
trustees, in which case title shall be deemed to be vested in the Owner
Trustee, a co-trustee and/or a separate trustee, as the case may be.
The Owners shall not have legal title to any part of the Owner Trust
Estate. No transfer by operation of law or otherwise of any interest of the
Owners shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of any part
of the Owner Trust Estate.
Section 2.09. Situs of Trust. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
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 from having employees within or without the State of
Delaware or taking actions outside the State of Delaware in order to comply
with Section 2.03. Payments will be received by the Trust only in Delaware,
Minnesota or New York, and payments will be made by the Trust only from
Delaware, Minnesota or New York. The only office of the Trust will be at the
Corporate Trust Office of the Owner Trustee in Delaware.
Section 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware, with
power and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted.
(ii) The Depositor has the power and authority to execute and
deliver this Trust Agreement and to carry out its terms; the Depositor has
full power and authority to sell and assign the property to be sold and
assigned to and deposited with the Trust as part of the Trust and the
Depositor has duly authorized such sale and assignment and deposit to the
Trust by all necessary corporate action; and the execution, delivery and
performance of this Trust Agreement have been duly authorized by the Depositor
by all necessary corporate action.
(iii) ____ The consummation of the transactions contemplated by
this Trust Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or bylaws of the Depositor, or any indenture,
agreement or other instrument to which the Depositor is a party or by which it
is bound; nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents); nor violate any law
or, to the best of the Depositor's knowledge, any order, rule or regulation
applicable to the Depositor of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
Section 2.11. Payment of Trust Fees. The Owner Trustee shall pay from the
Owner Trust Estate the Trust's fees and expenses incurred with respect to the
performance of the Trust's duties under the Indenture.
Section 2.12. Federal Income Tax Allocations. Net income of the Trust for
any month, as determined for Federal income tax purposes (and each item of
income, gain, loss and deduction entering into the computation thereof), shall
be allocated to the holders of the Certificates.
ARTICLE III.
Conveyance of the Revolving Credit Loans; Certificates
Section 3.01. Conveyance of the Revolving Credit Loans. The Depositor,
concurrently with the execution and delivery hereof, does hereby transfer and
convey to the Trust, on behalf of the Holders of the Notes and the
Certificates and the Credit Enhancer, without recourse, all its right, title
and interest in and to the Revolving Credit Loans, together with the
Depositor's right, title and interest under the Revolving Credit Loan Purchase
Agreement.
The parties hereto intend that the transaction set forth herein be a sale
for certain non-tax purposes by the Depositor to the Trust of all of its
right, title and interest in and to the Revolving Credit Loans. In the event
that the transaction set forth herein is not deemed to be a sale for certain
non-tax purposes, the Depositor hereby grants to the Trust a security interest
in all of its right, title and interest in, to and under the Owner Trust
Estate, all distributions thereon and all proceeds thereof; and this Trust
Agreement shall constitute a security agreement under applicable law.
Section 3.02. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and until the
conveyance of the Revolving Credit Loans pursuant to Section 3.01 and the
issuance of the Certificates, the Depositor shall be the sole
Certificateholder.
Section 3.03. The Initial Certificates. The Certificates shall be issued
in minimum denominations of a Certificate Percentage Interest of 10.0000% and
integral multiples of 0.0001% in excess thereof; provided, however, that
Certificates may be issued in minimum denominations of less than 10.0000% in
accordance with the provisions of Section 3.12.
The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Owner Trustee and
authenticated in the manner provided in Section 3.04. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefit of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be
so authorized prior to the authentication and delivery of such Certificates or
did not hold such offices at the date of authentication and delivery of such
Certificates. A Person shall become a Certificateholder and shall be entitled
to the rights and subject to the obligations of a Certificateholder hereunder
upon such Person's acceptance of a Certificate duly registered in such
Person's name, pursuant to Section 3.05.
A transferee of a Certificate shall become a Certificateholder and shall
be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a Certificate
duly registered in such transferee's name pursuant to and upon satisfaction of
the conditions set forth in Section 3.05.
Section 3.04. Authentication of Certificates. Concurrently with the
acquisition of the Revolving Credit Loans by the Trust, the Owner Trustee
shall cause the Certificates in an initial Certificate Percentage Interest of
100.00% to be executed on behalf of the Trust, authenticated and delivered to
or upon the written order of the Depositor, signed by its chairman of the
board, its president or any vice president, without further corporate action
by the Depositor, in authorized denominations. No Certificate shall entitle
its holder to any benefit under this Trust Agreement or be valid for any
purpose unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by
the Owner Trustee or the Certificate Paying Agent, by manual signature; such
authentication shall constitute conclusive evidence that such Certificate
shall have been duly authenticated and delivered hereunder. All Certificates
shall be dated the date of their authentication.
Section 3.05. Registration of and Limitations on Transfer and Exchange of
Certificates. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.09, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and
of transfers and exchanges of Certificates as herein provided. The Indenture
Trustee shall be the initial Certificate Registrar. If the Certificate
Registrar resigns or is removed, the Owner Trustee shall appoint a successor
Certificate Registrar.
Subject to satisfaction of the conditions set forth below, upon surrender
for registration of transfer of any Certificate at the office or agency
maintained pursuant to Section 3.09, the Owner Trustee shall execute,
authenticate and deliver (or shall cause the Certificate Registrar as its
authenticating agent to authenticate and deliver), in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating agent. In the event
the Owner Trustee receives any Certificates for re-registration or transfer,
the Owner Trustee shall promptly notify the Certificate Registrar. At the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of authorized denominations of a like aggregate amount upon
surrender of the Certificates to be exchanged at the office or agency
maintained pursuant to Section 3.09.
Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the
Certificateholder or such Certificateholder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer or exchange
shall be cancelled and subsequently disposed of by the Certificate Registrar
in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Except as described below, each Certificateholder shall establish its
non-foreign status by submitting to the Certificate Paying Agent an IRS Form
W-9 and the Certificate of Non-Foreign Status set forth in Exhibit F hereto.
A Certificate may be transferred to a Certificateholder unable to
establish its non-foreign status as described in the preceding paragraph only
if such Certificateholder provides an Opinion of Counsel, which Opinion of
Counsel shall not be an expense of the Trust, the Owner Trustee, the
Certificate Registrar or the Depositor, satisfactory to the Depositor and the
Credit Enhancer, that such transfer (1) will not affect the tax status of the
Owner Trust and (2) will not adversely affect the interests of any
Certificateholder, Noteholder or the Credit Enhancer, including, without
limitation, as a result of the imposition of any United States federal
withholding taxes on the Trust (except to the extent that such withholding
taxes would be payable solely from amounts otherwise distributable to the
Certificate of the prospective transferee). If such transfer occurs and such
foreign Certificateholder becomes subject to such United States federal
withholding taxes, any such taxes will be withheld by the Indenture Trustee.
Each Certificateholder unable to establish its non-foreign status shall submit
to the Certificate Paying Agent a copy of its Form W-8 and shall resubmit such
Form W-8 every three years.
No transfer, sale, pledge or other disposition of a Certificate shall be
made unless such transfer, sale, pledge or other disposition is exempt from
the registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event
of any such transfer, the Certificate Registrar or the Depositor shall prior
to such transfer require the transferee to execute (A) either (i) (a) an
investment letter in substantially the form attached hereto as Exhibit C (or
in such form and substance reasonably satisfactory to the Certificate
Registrar and the Depositor) which investment letters shall not be an expense
of the Trust, the Owner Trustee, the Certificate Registrar, the Servicer or
the Depositor and which investment letter states that, among other things,
such transferee (a) is a "qualified institutional buyer" as defined under Rule
144A, acting for its own account or the accounts of other "qualified
institutional buyers" as defined under Rule 144A, and (b) is aware that the
proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act, provided by Rule 144A or (ii) (a) a
written Opinion of Counsel acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor that such transfer
may be made pursuant to an exemption, describing the applicable exemption and
the basis therefor, from said Act and laws or is being made pursuant to said
Act and laws, which Opinion of Counsel shall not be an expense of the Trust,
the Owner Trustee, the Certificate Registrar, the Servicer or the Depositor
and (b) the transferee executes a representation letter, substantially in the
form of Exhibit D hereto, and the transferor executes a representation letter,
substantially in the form of Exhibit E hereto, each acceptable to and in form
and substance satisfactory to the Certificate Registrar and the Depositor
certifying the facts surrounding such transfer, which representation letters
shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar, the Servicer or the Depositor and (B) the Certificate of
Non-Foreign Status (in substantially the form attached hereto as Exhibit F)
acceptable to and in form and substance reasonably satisfactory to the
Certificate Registrar and the Depositor, which certificate shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar or the
Depositor and (C) an Opinion of Counsel that such transfer, sale, pledge or
other disposition of a Certificate will not cause the Trust to be treated as a
taxable mortgage pool for federal income tax purposes. If the
Certificateholder is unable to provide a Certificate of Non-Foreign Status,
the Certificateholder must provide an Opinion of Counsel as described in the
preceding paragraph. The Certificateholder desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the
Certificate Registrar, the Servicer and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No transfer of Certificates or any interest therein shall be made to any
employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, Keogh plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to ERISA, or Section 4975 of the Code (collectively, "Plan"), any Person
acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring such Certificates with "plan assets" of a Plan within the meaning of
the Department of Labor regulation promulgated at 29 C.F.R. ss.2510.3-101
("Plan Assets") unless the Depositor, the Owner Trustee, the Certificate
Registrar and the Servicer are provided with an Opinion of Counsel which
establishes to the satisfaction of the Depositor, the Owner Trustee, the
Certificate Registrar and the Servicer that the purchase of Certificates is
permissible under applicable law, will not constitute or result in any
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Depositor, the Owner Trustee, the Certificate Registrar or the
Servicer to any obligation or liability (including obligations or liabilities
under ERISA or Section 4975 of the Code) in addition to those undertaken in
this Agreement, which Opinion of Counsel shall not be an expense of the
Depositor, the Owner Trustee, the Certificate Registrar or the Servicer. In
lieu of such Opinion of Counsel, a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring such
Certificates with Plan Assets of a Plan may provide a certification in the
form of Exhibit G to this Agreement, which the Depositor, the Owner Trustee,
the Certificate Registrar and the Servicer may rely upon without further
inquiry or investigation. Neither an Opinion of Counsel nor a certification
will be required in connection with the initial transfer of any such
Certificate by the Depositor to an affiliate of the Depositor (in which case,
the Depositor or any affiliate thereof shall be deemed to have represented
that such affiliate is not a Plan or a Person investing Plan Assets of any
Plan) and the Owner Trustee shall be entitled to conclusively rely upon a
representation (which, upon the request of the Owner Trustee, shall be a
written representation) from the Depositor of the status of such transferee as
an affiliate of the Depositor.
In addition, no transfer of a Certificate shall be permitted, and no such
transfer shall be registered by the Certificate Registrar or be effective
hereunder, unless evidenced by an Opinion of Counsel, which establishes that
such transfer or the registration of such transfer would not cause the Trust
to be classified as a publicly traded partnership, by having more than 100
Certificateholders at any time during the taxable year of the Trust, an
association taxable as a corporation, a corporation or a taxable mortgage pool
for federal and relevant state income tax purposes.
In addition, no transfer, sale, assignment, pledge or other disposition
of a Certificate shall be made unless the proposed transferee executes a
representation letter substantially in the form of Exhibit D, or substantially
in the form of Exhibit H hereto, that (1) the transferee is acquiring the
Certificate for its own behalf and is not acting as agent or custodian for any
other Person or entity in connection with such acquisition and (2) if the
transferee is a partnership, grantor trust or S corporation for federal income
tax purposes, the Certificates are not more than 50% of the assets of the
partnership, grantor trust or S corporation.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar,
or if the Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (b) there shall be
delivered to the Certificate Registrar and the Owner Trustee such security or
indemnity as may be required by them to save each of them and the Issuer from
harm, then in the absence of notice to the Certificate Registrar or the Owner
Trustee that such Certificate has been acquired by a bona fide purchaser, the
Owner Trustee shall execute on behalf of the Trust and the Owner Trustee or
the Certificate Paying Agent, as the Trust's authenticating agent, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of any new Certificate under
this Section 3.06, the Owner Trustee or the Certificate Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section 3.06 shall constitute conclusive evidence of
ownership in the Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
Section 3.07. Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee,
the Certificate Registrar or any Certificate Paying Agent may treat the Person
in whose name any Certificate is registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving distributions pursuant
to Section 5.02 and for all other purposes whatsoever, and none of the Trust,
the Owner Trustee, the Certificate Registrar or any Paying Agent shall be
bound by any notice to the contrary.
Section 3.08. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish or cause to be furnished to the
Depositor or the Owner Trustee, within 15 days after receipt by the
Certificate Registrar of a written request therefor from the Depositor or the
Owner Trustee, a list, in such form as the Depositor or the Owner Trustee, as
the case may be, may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. Each Holder, by
receiving and holding a Certificate, shall be deemed to have agreed not to
hold any of the Trust, the Depositor, the Certificate Registrar or the Owner
Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived. All notices
to be given to the Indenture Trustee shall be delivered to its Corporate Trust
Office.
Section 3.09. Maintenance of Office or Agency. The Owner Trustee, on
behalf of the Trust, shall maintain in the City of New York 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 Basic Documents may
be served. The Owner Trustee shall give prompt written notice to the Depositor
and the Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
(a) Certificate Paying Agent. The Certificate Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution
Account on behalf of the Trust in accordance with the provisions of the
Certificates and Section 5.01 hereof from payments remitted to the Certificate
Paying Agent by the Indenture Trustee pursuant to Section 3.05 of the
Indenture. The Trust hereby appoints the Indenture Trustee as Certificate
Paying Agent and the Indenture Trustee hereby accepts such appointment and
further agrees that it will be bound by the provisions of this Trust Agreement
relating to the Certificate Paying Agent and shall:
(i) hold all sums held by it for the payment of amounts due
with respect to the Certificates in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust
of which it has actual knowledge in the making of any payment required to be
made with respect to the Certificates;
(iii) at any time during the continuance of any such default,
upon the written request of the Owner Trustee, forthwith pay to the Owner
Trustee on behalf of the Trust all sums so held in Trust by such Certificate
Paying Agent;
(iv) immediately resign as Certificate Paying Agent and
forthwith pay to the Owner Trustee on behalf of the Trust all sums held by it
in trust for the payment of Certificates if at any time it ceases to meet the
standards required to be met by the Certificate Paying Agent at the time of
its appointment;
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Certificates of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith; and
(vi) deliver to the Owner Trustee a copy of the Statement to
Certificateholders prepared with respect to each Payment Date by the Indenture
Trustee pursuant to Section 4.01 of the Servicing Agreement.
(b) The Trust may revoke such power and remove the Certificate
Paying Agent if the Owner Trustee determines in its sole discretion that the
Certificate Paying Agent shall have failed to perform its obligations under
this Trust Agreement in any material respect. The Indenture Trustee shall be
permitted to resign as Certificate Paying Agent upon 30 days' written notice
to the Owner Trustee; provided the Indenture Trustee is also resigning as
Paying Agent under the Indenture at such time. In the event that the Indenture
Trustee shall no longer be the Certificate Paying Agent under this Trust
Agreement and Paying Agent under the Indenture, the Owner Trustee shall
appoint a successor to act as Certificate Paying Agent (which shall be a bank
or trust company) and which shall also be the successor Paying Agent under the
Indenture. The Owner Trustee shall cause such successor Certificate Paying
Agent or any additional Certificate Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument to the
effect set forth in this Section 3.10 as it relates to the Certificate Paying
Agent. The Certificate Paying Agent shall return all unclaimed funds to the
Trust and upon removal of a Certificate Paying Agent such Certificate Paying
Agent shall also return all funds in its possession to the Trust. The
provisions of Sections 6.01, 6.03, 6.04 and 7.01 shall apply to the
Certificate Paying Agent to the extent applicable. Any reference in this
Agreement to the Certificate Paying Agent shall include any co-paying agent
unless the context requires otherwise.
(c) The Certificate Paying Agent shall establish and maintain with
itself the Certificate Distribution Account in which the Certificate Paying
Agent shall deposit, on the same day as it is received from the Indenture
Trustee, each remittance received by the Certificate Paying Agent with respect
to payments made pursuant to the Indenture. The Certificate Paying Agent shall
make all distributions of Certificate Distribution Amounts on the
Certificates, from moneys on deposit in the Certificate Distribution Account.
Section 3.10. Cooperation. The Owner Trustee shall cooperate in all
respects with any reasonable request by the Credit Enhancer for action to
preserve or enforce the Credit Enhancer's rights or interest under this Trust
Agreement or the Insurance Agreement, consistent with this Trust Agreement and
without limiting the rights of the Certificateholders as otherwise expressly
set forth in this Trust Agreement.
ARTICLE IV.
Authority and Duties of Owner Trustee
Section 4.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and
any amendment or other agreement or instrument described herein, in each case,
in such form as the Owner Trustee shall approve, as evidenced conclusively by
the Owner Trustee's execution thereof. In addition to the foregoing, the Owner
Trustee is obligated to take all actions required of the Trust pursuant to the
Basic Documents.
Section 4.02. General Duties. The Owner Trustee shall be responsible to
administer the Trust pursuant to the terms of this Trust Agreement and the
Basic Documents to which the Trust is a party and in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Trust Agreement.
Section 4.03. Action upon Instruction.
(a) Subject to this Article IV and in accordance with the terms of
the Basic Documents, the Certificateholders may by written instruction direct
the Owner Trustee in the management of the Trust. Such direction may be
exercised at any time by written instruction of the Certificateholders
pursuant to this Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document if the Owner
Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of the
Owner Trustee or is contrary to the terms hereof or of any Basic Document or
is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this Trust
Agreement or under any Basic Document, or in the event that the Owner Trustee
is unsure as to the application of any provision of this Trust Agreement or
any Basic Document or any such provision is ambiguous as to its application,
or is, or appears to be, in conflict with any other applicable provision, or
in the event that this Trust Agreement permits any determination by the Owner
Trustee or is silent or is incomplete as to the course of action that the
Owner Trustee is required to take with respect to a particular set of facts,
the Owner Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders (with a copy to
the Credit Enhancer) 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 instructions received from Holders of Certificates
representing a majority of the Security Balance thereof, the Owner Trustee
shall not be liable on account of such action to any Person. If the Owner
Trustee shall not have received appropriate instruction within 10 days of such
notice (or within such shorter period of time as reasonably may be specified
in such notice or may be necessary under the circumstances) it may, but shall
be under no duty to, take or refrain from taking such action not inconsistent
with this Trust Agreement or the Basic Documents, as it shall deem to be in
the best interests of the Certificateholders, and the Owner Trustee shall have
no liability to any Person for such action or inaction.
Section 4.04. No Duties Except as Specified under Specified Documents or
in Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Owner Trust Estate, or to otherwise take or refrain
from taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee is a party, except as expressly provided (i)
in accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Trust Agreement, (ii) in accordance with the
Basic Documents and (iii) in accordance with any document or instruction
delivered to the Owner Trustee pursuant to Section 4.03; and no implied duties
or obligations shall be read into this Trust Agreement or any Basic Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at 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 Securities
and Exchange Commission filing for the Trust or to record this Trust Agreement
or any Basic 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 that are not related to the
ownership or the administration of the Owner Trust Estate.
Section 4.05. Restrictions.
(a) The Owner Trustee shall not take any action (x) that is
inconsistent with the purposes of the Trust set forth in Section 2.03 or (y)
that, to the actual knowledge of the Owner Trustee, would result in the Trust
becoming taxable as a corporation for federal income tax purposes. The
Certificateholders shall not direct the Owner Trustee to take action that
would violate the provisions of this Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the
Trust's properties or assets, including those included in the Trust Estate, to
any person unless (a) it shall have received an Opinion of Counsel to the
effect that such transaction will not have any material adverse tax
consequence to the Trust or any Certificateholder and (b) such conveyance or
transfer shall not violate the provisions of Section 3.16(b) of the Indenture.
Section 4.06. Prior Notice to Certificateholders and the Credit Enhancer
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
and the Credit Enhancer in writing of the proposed action and Holders of
Certificates representing a majority of the Security Balance thereof and the
Credit Enhancer shall not have notified the Owner Trustee in writing prior to
the 30th day after such notice is given that such Certificateholders or the
Credit Enhancer have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of cash
distributions due and owing under the Revolving Credit Loans) and the
compromise of any action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits for collection
of cash distributions due and owing under the Revolving Credit Loans);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
Business Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Trust
Agreement of a successor Certificate Registrar or Certificate Paying Agent or
the consent to the assignment by the Note Registrar, Paying Agent, Indenture
Trustee, Certificate Registrar or Certificate Paying Agent of its obligations
under the Indenture or this Trust Agreement, as applicable; and
(f) any other events which may have a materially adverse effect on
the interests of the Credit Enhancer.
Section 4.07. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the direction
of Certificateholders evidencing not less than a majority of the outstanding
Security Balance of the Certificates, and with the consent of the Credit
Enhancer, to (a) remove the Servicer under the Servicing Agreement pursuant to
Section 7.01 thereof or (b) except as expressly provided in the Basic
Documents, sell the Revolving Credit 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 Certificateholders
evidencing not less than a majority of the outstanding Security Balance of the
Certificates and with the written consent of the Credit Enhancer.
Section 4.08. Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary proceeding
in bankruptcy relating to the Trust without the unanimous prior approval of
all Certificateholders and with the prior written consent of the Credit
Enhancer 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 4.09. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or to refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Trust Agreement or any
of the Basic Documents or would be contrary to Section 2.03, nor shall the
Owner Trustee be obligated to follow any such direction, if given.
Section 4.10. Majority Control. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Trust Agreement
may be taken by the Certificateholders evidencing not less than a majority of
the outstanding Security Balance of the Certificates. Except as expressly
provided herein, any written notice of the Certificateholders delivered
pursuant to this Trust Agreement shall be effective if signed by
Certificateholders evidencing not less than a majority of the outstanding
Security Balance of the Certificates at the time of the delivery of such
notice.
Section 4.11. Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither Wilmington Trust Company
nor the Owner Trustee shall be required to take any action in any jurisdiction
other than in the State of Delaware if the taking of such action will, even
after the appointment of a co-trustee or separate trustee in accordance with
Section 9.05 hereof, (i) require the consent or approval or authorization or
order of or the giving of notice to, or the registration with or the taking of
any other action in respect of, any state or other governmental authority or
agency of any jurisdiction other than the State of Delaware; (ii) result in
any fee, tax or other governmental charge under the laws of the State of
Delaware becoming payable by Wilmington Trust Company, or (iii) subject
Wilmington Trust Company to personal jurisdiction in any jurisdiction other
than the State of Delaware for causes of action arising from acts unrelated to
the consummation of the transactions by Wilmington Trust Company or the Owner
Trustee, as the case may be, contemplated hereby.
ARTICLE V.
Application of Trust Funds
Section 5.01. Distributions.
(a) On each Payment Date, the Certificate Paying Agent shall
distribute to the Certificateholders all funds on deposit in the Certificate
Distribution Account and available therefor (as provided in Section 3.05 of
the Indenture), as the Certificate Distribution Amount for such Payment Date.
All distributions made pursuant to this Section shall be distributed to the
Certificateholders on a pro rata basis based on the Certificate Percentage
Interests thereof.
(b) In the event that any withholding tax is imposed on the
distributions (or allocations of income) to a Certificateholder, such tax
shall reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section 5.01. The Certificate Paying Agent is hereby
authorized and directed to retain or cause to be retained from amounts
otherwise distributable to the Certificateholders sufficient funds for the
payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Owner Trustee from contesting any such tax in
appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The amount of any withholding
tax imposed with respect to a Certificateholder shall be treated as cash
distributed to such Certificateholder at the time it is withheld by the
Certificate Paying Agent and remitted to the appropriate taxing authority. If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the
Certificate Paying Agent may in its sole discretion withhold such amounts in
accordance with this paragraph.
(c) Distributions to Certificateholders shall be subordinated to the
creditors of the Trust, including the Noteholders.
Section 5.02. Method of Payment. Subject to Section 8.01(c),
distributions required to be made to Certificateholders on any Payment Date as
provided in Section 5.01 shall be made to each Certificateholder of record on
the preceding Record Date either by wire transfer, in immediately available
funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
to the Certificate Registrar appropriate written instructions at least five
Business Days prior to such Payment Date or, if not, by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
Section 5.03. Signature on Returns. The Owner Trustee shall sign on
behalf of the Trust the tax returns, if any, of the Trust.
Section 5.04. Statements to Certificateholders. On each Payment Date, the
Indenture Trustee shall provide to each Certificateholder the Statement
provided to the Owner Trustee and the Certificate Paying Agent by the
Indenture Trustee pursuant to Section 4.01 of the Servicing Agreement with
respect to such Payment Date.
ARTICLE VI.
Concerning the Owner Trustee
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Trust Agreement. The
Owner Trustee and the Certificate Paying Agent also agree to disburse all
moneys actually received by it constituting part of the Owner Trust Estate
upon the terms of the Basic Documents and this Trust Agreement. The Owner
Trustee shall not be answerable or accountable hereunder or under any Basic
Document under any circumstances, except (i) for its own willful misconduct,
gross negligence or bad faith or grossly negligent failure to act or (ii) in
the case of the inaccuracy of any representation or warranty contained in
Section 6.03 expressly made by the Owner Trustee. In particular, but not by
way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) No provision of this Trust Agreement or any Basic 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, duties or powers
hereunder or under any Basic 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;
(b) Under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(c) The Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Trust Agreement or for the due execution
hereof by the Depositor or for the form, character, genuineness, sufficiency,
value or validity of any of the Owner Trust Estate, or for or in respect of
the validity or sufficiency of the Basic Documents, the Notes, the
Certificates, other than the certificate of authentication on the
Certificates, if executed by the Owner Trustee and the Owner Trustee shall in
no event assume or incur any liability, duty, or obligation to any Noteholder
or to any Certificateholder, other than as expressly provided for herein or
expressly agreed to in the Basic Documents;
(d) The execution, delivery, authentication and performance by it of
this Trust Agreement will not require the authorization, consent or approval
of, the giving of notice to, the filing or registration with, or the taking of
any other action with respect to, any governmental authority or agency;
(e) The Owner Trustee shall not be liable for the default or
misconduct of the Depositor, the Indenture Trustee or the Servicer under any
of the Basic Documents or otherwise and the Owner Trustee shall have no
obligation or liability to perform the obligations of the Trust under this
Trust Agreement or the Basic Documents that are required to be performed by
the Indenture Trustee under the Indenture or the Seller under the Revolving
Credit Loan Purchase Agreement; and
(f) The Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it or duties imposed by this Trust
Agreement, or to institute, conduct or defend any litigation under this Trust
Agreement or otherwise or in relation to this Trust Agreement or any Basic
Document, at the request, order or direction of any of the Certificateholders,
unless such Certificateholders have offered to the Owner Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Owner Trustee therein or thereby. The right of the
Owner Trustee to perform any discretionary act enumerated in this Trust
Agreement or in any Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its gross negligence, bad
faith or willful misconduct in the performance of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish to
the Securityholders promptly upon receipt of a written reasonable request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Trust under the Basic Documents.
Section 6.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing
in good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Trust Agreement;
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Trust Agreement, and this Trust Agreement
will be executed and delivered by one of its officers who is duly authorized
to execute and deliver this Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will
contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment or
order binding on it, or constitute any default under its charter documents or
bylaws or any indenture, mortgage, contract, agreement or instrument to which
it is a party or by which any of its properties may be bound;
(d) This Trust Agreement, assuming due authorization, execution and
delivery by the Owner Trustee and the Depositor, constitutes a valid, legal
and binding obligation of the Owner Trustee, enforceable against it in
accordance with the terms hereof subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law;
(e) The Owner Trustee is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Owner Trustee or its properties or might have consequences
that would materially adversely affect its performance hereunder; and
(f) No litigation is pending or, to the best of the Owner Trustee's
knowledge, threatened against the Owner Trustee which would prohibit its
entering into this Trust Agreement or performing its obligations under this
Trust Agreement.
Section 6.04. Reliance; Advice of Counsel.
(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
determination of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other authorized
officers of the relevant party, as to such fact or matter and such certificate
shall constitute full protection to the Owner Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in
the performance of its duties and obligations under this Trust Agreement or
the Basic Documents, the Owner Trustee (i) may act directly or through its
agents, attorneys, custodians or nominees (including persons acting under a
power of attorney) pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents, attorneys, custodians or nominees (including persons acting under a
power of attorney) if such persons have been selected by the Owner Trustee
with reasonable care, and (ii) may consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it at the
expense of the Trust. The Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the opinion or
advice of any such counsel, accountants or other such Persons and not contrary
to this Trust Agreement or any Basic Document.
Section 6.05. Not Acting in Individual Capacity. Except as provided in
this Article VI, in accepting the trusts hereby created Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Trust Agreement or any Basic Document
shall look only to the Owner Trust Estate for payment or satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates or Related
Documents. The recitals contained herein and in the Certificates (other than
the signatures of the Owner Trustee on the Certificates) shall be taken as the
statements of the Depositor, and the Owner Trustee assumes no responsibility
for the correctness thereof. The Owner Trustee makes no representations as to
the validity or sufficiency of this Trust Agreement, of any Basic Document or
of the Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents. The Owner Trustee
shall at no time have any responsibility or liability with respect to the
sufficiency of the Owner Trust Estate or its ability to generate the payments
to be distributed to Certificateholders under this Trust Agreement or the
Noteholders under the Indenture, including, the compliance by the Depositor or
the Seller with any warranty or representation made under any Basic Document
or in any related document or the accuracy of any such warranty or
representation, or any action of the Certificate Paying Agent, the Certificate
Registrar or the Indenture Trustee taken in the name of the Owner Trustee.
Section 6.07. Owner Trustee May Own Certificates and Notes. 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 Depositor, the Seller,
the Certificate Paying Agent, the Certificate Registrar and the Indenture
Trustee in transactions with the same rights as it would have if it were not
Owner Trustee.
Section 6.08. Licenses. The Owner Trustee shall cause the Trust to use
its best efforts to obtain and maintain the effectiveness of any licenses
required in connection with this Agreement and the Transaction Documents and
the transactions contemplated hereby and thereby until such time as the Trust
shall terminate in accordance with the terms hereof.
ARTICLE VII.
Compensation of Owner Trustee
Section 7.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof, and the Owner Trustee shall be
reimbursed for its reasonable expenses hereunder and under the Basic
Documents, including the reasonable compensation, expenses and disbursements
of such agents, representatives, experts and counsel as the Owner Trustee may
reasonably employ in connection with the exercise and performance of its
rights and its duties hereunder and under the Basic Documents which shall be
payable by the Servicer pursuant to Section 3.09 of the Servicing Agreement.
Section 7.02. Indemnification. The holder of the majority of the
Certificate Percentage Interest of the Certificates shall indemnify, defend
and hold harmless the Owner Trustee and its successors, assigns, agents and
servants (collectively, the "Indemnified Parties") from and against, any and
all liabilities, obligations, losses, damages, taxes, claims, actions and
suits, and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by,
or asserted against the Owner Trustee or any Indemnified Party in any way
relating to or arising out of this Trust Agreement, the Basic Documents, the
Owner Trust Estate, the administration of the Owner Trust Estate or the action
or inaction of the Owner Trustee hereunder, provided, that:
(i) the holder of the majority of the Certificate Percentage
Interest of the Certificates shall not be liable for or required to indemnify
an Indemnified Party from and against Expenses arising or resulting from the
Owner Trustee's willful misconduct, gross negligence or bad faith or as a
result of any inaccuracy of a representation or warranty contained in Section
6.03 expressly made by the Owner Trustee;
(ii) with respect to any such claim, the Indemnified Party
shall have given the holder of the majority of the Certificate Percentage
Interest of the Certificates written notice thereof promptly after the
Indemnified Party shall have actual knowledge thereof;
(iii) while maintaining control over its own defense, the
holder of the majority of the Certificate Percentage Interest of the
Certificates shall consult with the Indemnified Party in preparing such
defense; and
(iv) notwithstanding anything in this Agreement to the
contrary, the holder of the majority of the Certificate Percentage Interest of
the Certificates shall not be liable for settlement of any claim by an
Indemnified Party entered into without the prior consent of the holder of the
majority of the Certificate Percentage Interest of the Certificates which
consent shall not be unreasonably withheld.
The indemnities contained in this Section shall survive the resignation
or termination of the Owner Trustee or the termination of this Trust
Agreement. In the event of any claim, action or proceeding for which indemnity
will be sought pursuant to this Section 7.02, the Owner Trustee's choice of
legal counsel, if other than the legal counsel retained by the Owner Trustee
in connection with the execution and delivery of this Trust Agreement, shall
be subject to the approval of the holder of the majority of the Certificate
Percentage Interest of the Certificates, which approval shall not be
unreasonably withheld. In addition, upon written notice to the Owner Trustee
and with the consent of the Owner Trustee which consent shall not be
unreasonably withheld, the holder of the majority of the Certificate
Percentage Interest of the Certificates has the right to assume the defense of
any claim, action or proceeding against the Owner Trustee.
Section 7.03. 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.
ARTICLE VIII.
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement.
(a) This Trust Agreement (other than this Article VIII) and the
Trust shall terminate and be of no further force or effect upon the later of
(x) the termination of the Term of the Policy (as defined in the Credit
Enhancement Instrument) and all amounts due to the Credit Enhancer have been
paid in full and (y) the earliest of (i) the final distribution of all moneys
or other property or proceeds of the Owner Trust Estate in accordance with the
terms of the Indenture and this Trust Agreement, (ii) the Payment Date in
September 2011, (iii) the purchase by the Servicer of all Revolving Credit
Loans pursuant to Section 8.08(a) of the Servicing Agreement. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder shall
not (x) operate to terminate this Trust Agreement or the Trust or (y) entitle
such Certificateholder's legal representatives or heirs to claim an accounting
or to take any action or proceeding in any court for a partition or winding up
of all or any part of the Trust or the Owner Trust Estate or (z) otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution and
cancellation, shall be given by the Certificate Paying Agent by letter to
Certificateholders and the Credit Enhancer mailed within five Business Days of
receipt of notice of such termination from the Owner Trustee, stating (i) the
Payment Date upon or with respect to which final payment of the Certificates
shall be made upon presentation and surrender of the Certificates at the
office of the Certificate Paying Agent therein designated, (ii) the amount of
any such final payment and (iii) that the Record Date otherwise applicable to
such Payment Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office of the
Certificate Payment Agent therein specified. The Certificate Paying Agent
shall give such notice to the Owner Trustee and the Certificate Registrar at
the time such notice is given to Certificateholders. Upon presentation and
surrender of the Certificates, the Certificate Paying Agent shall cause to be
distributed to Certificateholders amounts distributable on such Payment Date
pursuant to Section 5.01.
In the event that all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in
the above mentioned written notice, the Certificate Paying Agent shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if
within one year following the Payment Date on which final payment of the
Certificates was to have been made pursuant to Section 3.10, all the
Certificates shall not have been surrendered for cancellation, the Certificate
Paying Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Trust Agreement. Any
funds remaining in the Certificate Distribution Account after exhaustion of
such remedies shall be distributed by the Certificate Paying Agent to the
holder of the majority of the Certificate Percentage Interest of the
Certificates.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3820 of the Business Trust Statute.
ARTICLE IX.
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation satisfying the provisions of
Section 3807(a) of the Business Trust Statute; authorized to exercise
corporate trust powers; having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and having (or having a parent that has) long-term debt
obligations with a rating of at least A by Moody's and/or Standard & Poor's.
If such corporation shall publish reports of condition at least annually
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section 9.01, the Owner Trustee shall
resign immediately in the manner and with the effect specified in Section
9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at any
time resign and be discharged from the trusts hereby created by giving 30
days' prior written notice thereof to the Credit Enhancer and the Depositor.
Upon receiving such notice of resignation, the Indenture Trustee shall
promptly appoint a successor Owner Trustee with the prior written consent of
the Credit Enhancer which will not be unreasonably withheld, by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for
the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 9.01 and shall fail to resign after written
request therefor by the Indenture Trustee, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or
a receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Indenture Trustee may and shall at the direction of the
Credit Enhancer remove the Owner Trustee. If the Indenture Trustee shall
remove the Owner Trustee under the authority of the immediately preceding
sentence, the Indenture Trustee shall promptly appoint a successor Owner
Trustee acceptable to the Credit Enhancer by written instrument, in duplicate,
one copy of which instrument shall be delivered to the outgoing Owner Trustee
so removed and one copy to the successor Owner Trustee, and shall pay all fees
owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 9.03 and payment of all fees and expenses
owed to the outgoing Owner Trustee.
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to
the Indenture Trustee and to its predecessor Owner Trustee an instrument
accepting such appointment under this Trust Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become
effective, and such successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Trust Agreement, with like effect as
if originally named as Owner Trustee. The predecessor Owner Trustee shall upon
payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Trust Agreement; and
the predecessor Owner Trustee shall execute and deliver such instruments and
do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Owner Trustee all such rights, powers,
duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, the Indenture Trustee shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies. If the Indenture Trustee shall fail to mail such notice within 10
days after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Indenture Trustee.
Section 9.04. Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Trust Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate may at the time be located, the Owner Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons to act as co-trustee, jointly with the Owner Trustee, or
as separate trustee or trustees, of all or any part of the Owner Trust Estate,
and to vest in such Person, in such capacity, such title to the Trust or any
part thereof and, subject to the other provisions of this Section, such
powers, duties, obligations, rights and trusts as the Owner Trustee may
consider necessary or desirable. No co-trustee or separate trustee under this
Trust Agreement shall be required to meet the terms of eligibility as a
successor Owner Trustee pursuant to Section 9.01 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant
to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed by
the Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Owner Trust
Estate or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(b) No trustee under this Trust Agreement shall be personally liable
by reason of any act or omission of any other trustee under this Trust
Agreement; and
(c) The Owner Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Trust
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Trust Agreement, specifically including
every provision of this Trust Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Owner Trustee. Each such
instrument shall be filed with the Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Trust Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE X.
Miscellaneous
Section 10.01. Amendments.
(a) This Trust Agreement may be amended from time to time by the
parties hereto, including the Certificate Registrar and Certificate Paying
Agent if affected by such amendment, as specified in this Section 10.01,
provided that any amendment, except as provided in subparagraph (e) below, be
accompanied by an Opinion of Counsel, to the Owner Trustee to the effect that
such amendment (i) complies with the provisions of this Section and (ii) will
not cause the Trust to be subject to an entity level tax.
(b) If the purpose of the amendment (as detailed therein) is to
correct any mistake, eliminate any inconsistency, cure any ambiguity or deal
with any matter not covered (i.e., to give effect to the intent of the
parties), it shall not be necessary to obtain the consent of any Holders, but
the Owner Trustee shall be furnished with (A) a letter from the Rating
Agencies that the amendment will not result in the downgrading or withdrawal
of the rating then assigned to any Security if determined without regard to
the Credit Enhancement Instrument and (B) an Opinion of Counsel to the effect
that such action will not adversely affect in any material respect the
interests of any Holders, and the prior written consent of the Credit Enhancer
shall be obtained.
(c) If the purpose of the amendment is to prevent the imposition of
any federal or state taxes at any time that any Security is outstanding (i.e.,
technical in nature), it shall not be necessary to obtain the consent of any
Holder, but the Owner Trustee shall be furnished with an Opinion of Counsel
that such amendment is necessary or helpful to prevent the imposition of such
taxes and is not materially adverse to any Holder and the prior written
consent of the Credit Enhancer shall be obtained.
(d) If the purpose of the amendment is to add or eliminate or change
any provision of the Trust Agreement other than as contemplated in (b) and (c)
above, the amendment shall require (A) the prior written consent of the Credit
Enhancer and an Opinion of Counsel to the effect that such action will not
adversely affect in any material respect the interests of any Holders and (B)
either (a) a letter from the Rating Agency that the amendment will not result
in the downgrading or withdrawal of the rating then assigned to any security
if determined without regard to the Credit Enhancement Instrument or (b) the
consent of Holders of Certificates evidencing a majority of the Certificate
Percentage Interest of the Certificates and the Indenture Trustee; provided,
however, that no such amendment shall (i) reduce in any manner the amount of,
or delay the timing of, payments received that are required to be distributed
on any Certificate without the consent of the related Certificateholder and
the Credit Enhancer, or (ii) reduce the aforesaid percentage of Certificates
the Holders of which are required to consent to any such amendment, without
the consent of the Holders of all such Certificates then outstanding.
(e) If the purpose of the amendment is to provide for the holding of
any of the Certificates in book-entry form, it shall require the consent of
Holders of all such Certificates then outstanding; provided, that the Opinion
of Counsel specified in subparagraph (a) above shall not be required.
(f) If the purpose of the amendment is to provide for the issuance
of additional certificates representing an interest in the Trust, it shall not
be necessary to obtain the consent of any Holder, but the Owner Trustee shall
be furnished with (A) an Opinion of Counsel to the effect that such action
will not adversely affect in any material respect the interests of any Holders
and (B) a letter from the Rating Agencies that the amendment will not result
in the downgrading or withdrawal of the rating then assigned to any Security,
if determined without regard to the Credit Enhancement Instrument and the
prior written consent of the Credit Enhancer shall be obtained.
(g) 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 each Certificateholder, the Indenture Trustee, the
Credit Enhancer and each of the Rating Agencies. It shall not be necessary for
the consent of Certificateholders or the Indenture Trustee pursuant to this
Section 10.01 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents (and any other
consents of Certificateholders provided for in this Trust Agreement or in any
other Basic Document) and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable requirements
as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any
agreement to which the Trust is a party, other than this Trust Agreement, the
Owner Trustee shall be entitled to receive and conclusively rely upon an
Opinion of Counsel to the effect that such amendment is authorized or
permitted by the documents subject to such amendment and that all conditions
precedent in the Basic Documents for the execution and delivery thereof by the
Trust or the Owner Trustee, as the case may be, have been satisfied.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State of the State of Delaware.
Section 10.02. No Legal Title to Owner Trust Estate. The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided beneficial interest therein only in accordance with
Articles V and VIII. No transfer, by operation of law or otherwise, of any
right, title or interest of the Certificateholders to and in their ownership
interest in the Owner Trust Estate shall operate to terminate this Trust
Agreement or the trusts hereunder or entitle any transferee to an accounting
or to the transfer to it of legal title to any part of the Owner Trust Estate
Section 10.03. Limitations on Rights of Others. Except for Section 2.07,
the provisions of this Trust Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Certificateholders, the Credit Enhancer and, to
the extent expressly provided herein, the Indenture Trustee and the
Noteholders, and nothing in this Trust Agreement (other than Section 2.07),
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Owner Trust Estate or under
or in respect of this Trust Agreement or any covenants, conditions or
provisions contained herein.
Section 10.04. Notices.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given upon
receipt, if to the Owner Trustee, addressed to Wilmington Trust Company,
Corporate Trust Administration, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890; if to the Depositor, addressed to [ ___________ ];
if to the Credit Enhancer, addressed to Financial Security Assurance Inc. 350
Park Avenue, New York, New York 10022, Attention: Surveillance Department Re:
MSDWCC HELOC Trust 2000-1, Asset-Backed Notes, Series 2000-1, Confirmation:
(212) 826-0100, Telecopy Nos. (212) 339-3518, (212) 339-3529 (in each case in
which notice or other communication to FSA refers to an Event of Default, a
claim on the Credit Enhancement Instrument or with respect to which failure on
the part of the Credit Enhancer to respond shall be deemed to constitute
consent or acceptance, then a copy of such notice or other communication
should also be sent to the attention of the General Counsel and the Head -
Financial Guaranty Group and shall be marked to indicate `URGENT MATERIAL
ENCLOSED"; if to the Certificate Paying Agent, to 11000 Broken Land Parkway,
Columbia, Maryland 21044; with a copy to the Indenture Trustee's Corporate
Trust Office; if to the Rating Agencies, addressed to Moody's Investors
Service, Inc., 99 Church Street, 4th Floor, New York, New York 10001 and
Standard & Poor's Ratings Services, 55 Water Street, New York, New York 10041,
Attention: Structured Finance Department - MBS or, as to each party, at such
other address as shall be designated by such party in a written notice to each
other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Trust Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
(c) A copy of any notice delivered to the Owner Trustee or the Trust
shall also be delivered to the Depositor.
Section 10.05. Severability. Any provision of this Trust Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 10.06. Separate Counterparts. This Trust Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 10.07. Successors and Assigns. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, each of the Depositor, the Owner Trustee and its successors
and each Certificateholder and its successors and permitted assigns, all as
herein provided and the Credit Enhancer. Any request, notice, direction,
consent, waiver or other instrument or action by a Certificateholder shall
bind the successors and assigns of such Certificateholder.
Section 10.08. No Petition. The Owner Trustee, by entering into this
Trust Agreement and each Certificateholder, by accepting a Certificate, hereby
covenant and agree that they will not at any time institute against the
Depositor or the Trust, or join in any institution against the Depositor or
the Trust of, any bankruptcy proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations to the
Certificates, the Notes, this Trust Agreement or any of the Basic Documents.
Section 10.09. No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, the Seller, the Owner Trustee, the Indenture
Trustee or any Affiliate thereof and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated
in this Trust Agreement, the Certificates or the Basic Documents.
Section 10.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. Integration. This Trust Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understanding pertaining thereto.
Section 10.13. Rights of Credit Enhancer to Exercise Rights of
Certificateholders. By accepting its Certificate, each Certificateholder
agrees that unless a Credit Enhancer Default exists, the Credit Enhancer shall
have the right to exercise all rights of the Certificateholders under this
Agreement without any further consent of the Certificateholders. Nothing in
this Section, however, shall alter or modify in any way, the fiduciary
obligations of the Owner Trustee to the Certificateholders pursuant to this
Agreement, or create any fiduciary obligation of the Owner Trustee to the
Credit Enhancer.
Section 10.14. Third Party Beneficiary. The Credit Enhancer is an
intended third party beneficiary of this Agreement, entitled to enforce the
provisions hereof as if a party hereto.
IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
MORGAN STANLEY ABS CAPITAL I INC.
By:
---------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee, except with respect
to the representations and warranties
contained in Section 6.03 hereof,
By:
---------------------------------------
Name:
Title:
Acknowledged and Agreed:
Wells Fargo Bank Minnesota, N.A.,
as Certificate Registrar
and Certificate Paying Agent
By:
--------------------------------------------
Name:
Title:
EXHIBIT A
FORM OF CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES AS
DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THIS CERTIFICATE IS ISSUED IN THE CERTIFICATE PERCENTAGE INTEREST
BELOW; HOWEVER, THE CERTIFICATE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY
CHANGE IN ACCORDANCE WITH SECTION 3.12 OF THE AGREEMENT. THE HOLDER OF THIS
CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE
INTEREST IN ACCORDANCE WITH SUCH SECTION.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT
AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.05 OF THE AMENDED AND RESTATED
TRUST AGREEMENT ("THE AGREEMENT").
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER FROM THE
TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO THE PROHIBITED TRANSACTION RESTRICTIONS AND
THE FIDUCIARY RESPONSIBILITY REQUIREMENTS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), ANY PERSON ACTING, DIRECTLY OR INDIRECTLY,
ON BEHALF OF ANY SUCH PLAN OR ANY PERSON USING "PLAN ASSETS," WITHIN THE
MEANING OF THE DEPARTMENT OF LABOR REGULATION AT 29 C.F.R. ss.2510.3-101, TO
ACQUIRE THIS CERTIFICATE (COLLECTIVELY A "PLAN INVESTOR"), OR (ii) IF THIS
CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, AN
OPINION OF COUNSEL, OR A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE
AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL, TO THE EFFECT THAT THE PURCHASE
OR HOLDING OF THIS CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT
ENACTMENTS) AND WILL NOT SUBJECT THE COMPANY, THE OWNER TRUSTEE, THE SERVICER
OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO
THOSE UNDERTAKEN IN THE AGREEMENT.
THE TRANSFEREE OF THIS CERTIFICATE SHALL BE SUBJECT TO UNITED STATES
FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A
CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS TO THE TRANSFEREE'S STATUS AS
A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
THE SELLER, THE COMPANY, THE SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN
THE AGREEMENT OR THE BASIC DOCUMENTS.
Certificate No. ____
Cut-off Date:
August 1, 2000
Date of Trust Agreement:
August 1, 2000
First Payment Date: Certificate Percentage Interest of
September 28, 2000 this Certificate: ____________%]
Assumed Final Payment Date: CUSIP [_____]
MSDWCC HELOC ASSET-BACKED CERTIFICATE
SERIES 2000-1
evidencing a fractional undivided interest in the Owner Trust Estate, the
property of which consists primarily of the Revolving Credit Loans, created by
MORGAN STANLEY ABS CAPITAL I INC. (hereinafter called the "Company," which
term includes any successor entity under the Agreement referred to below).
This Certificate is payable solely from the assets of the Owner
Trust Estate, and does not represent an obligation of or interest in the
Company, the Seller, the Servicer, the Indenture Trustee or the Owner Trustee
or any of their affiliates. This Certificate is not guaranteed or insured by
any governmental agency or instrumentality or by the Company, the Seller, the
Servicer, the Indenture Trustee or the Owner Trustee or any of their
affiliates. None of the Company, the Seller, the Servicer, the Indenture
Trustee or the Owner Trustee or any of their affiliates will have any
obligation with respect to any certificate or other obligation secured by or
payable from payments on the Certificates.
This certifies that [name of Holder] is the registered owner of the
Security Balance evidenced by this Certificate (as set forth on the face
hereof) in certain distributions with respect to the Owner Trust Estate,
consisting primarily of the Revolving Credit Loans, created by Morgan Stanley
ABS Capital I Inc. The Trust (as defined herein) was created pursuant to a
Trust Agreement dated as specified above (as amended and supplemented from
time to time, the "Agreement") between the Company and Wilmington Trust
Company, as owner trustee (the "Owner Trustee," which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Payment Date"), commencing on the
first Payment Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last day (or if such
last day is not a Business Day, the Business Day immediately preceding such
last day) of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the pro rata portion evidenced by
this Certificate (based on the Certificate Percentage Interest stated on the
face hereon) of the Certificate Distribution Amount, if any, required to be
distributed to Holders of Certificates on such Payment Date. Distributions on
this Certificate will be made as provided in the Agreement by the Certificate
Paying Agent by wire transfer or check mailed to the Certificateholder of
record in the Certificate Register without the presentation or surrender of
this Certificate or the making of any notation hereon.
Except as otherwise provided in the Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Certificate Paying Agent of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency maintained by the Certificate Registrar for that purpose in the City
and State of New York. The initial Security Balance of this Certificate is set
forth above. The Security Balance hereof will be reduced to the extent of the
distributions allocable to principal.
No transfer of this Certificate will 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. In the event that such a transfer is to be made, (i)
the Certificate Registrar or the Company may require an opinion of counsel
acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Company that such transfer is exempt (describing the
applicable exemption and the basis therefor) from or is being made pursuant to
the registration requirements of the Securities Act of 1933, as amended, and
of any applicable statute of any state and (ii) the transferee shall execute
an investment letter in the form described in the Agreement and (iii) the
Certificate Registrar shall require the transferee to execute an investment
letter and a Certificate of Non-Foreign Status in the form described by the
Agreement (or if a Certificate of Non-Foreign Status is not provided, an
Opinion of Counsel as described in the Agreement), which investment letter and
certificate or Opinion of Counsel shall not be at the expense of the Trust,
the Owner Trustee, the Certificate Registrar or the Company. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the Trust, the Owner Trustee, the Company, the Servicer and the Certificate
Registrar 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. In
connection with any such transfer, the Certificate Registrar (unless otherwise
directed by the Company) will also require either (i) a representation letter,
in the form as described by the Agreement, stating that the transferee is not
an employee benefit or other plan subject to the prohibited transaction
restrictions or the fiduciary responsibility requirements of ERISA or Section
4975 of the Code ("Plan"), any person acting, directly or indirectly, on
behalf of any such plan or any person using the "plan assets," within the
meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to
effect such acquisition (collectively, a "Plan Investor") or (ii) if such
transferee is a Plan Investor, an opinion of counsel acceptable to and in form
and substance satisfactory to the Company, the Owner Trustee, the Servicer and
the Certificate Registrar, or a certification in the form of Exhibit G to the
Agreement, to the effect that the purchase or holding of the Certificate is
permissible under applicable law, will not constitute or result in a
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
(or comparable provisions of any subsequent enactments) and will not subject
the Company, the Owner Trustee, the Servicer or the Certificate Registrar to
any obligation or liability in addition to those undertaken in the Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Home Equity Loan-Backed Certificates of the Series specified
hereon (herein collectively called the "Certificates"). All terms used in this
Certificate which are defined in the Agreement shall have the meanings
assigned to them in the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate
Distribution Account that have been released from the Lien of the Indenture
for payment hereunder and that neither the Owner Trustee in its individual
capacity nor the Company is personally liable to the Certificateholders for
any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
The Holder of this Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders as described in the Indenture,
dated as of August 1, 2000 between MSDWCC HELOC Trust 2000-1 (the "Trust") and
Wells Fargo Bank Minnesota, N.A.
Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that such Certificateholder will not at any time
institute against the Company, or join in any institution against the Company
or the Trust of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal
or state bankruptcy or similar law in connection with any obligations relating
to the Certificates, the Notes, the Agreement or any of the Basic Documents.
The Agreement permits the amendment thereof as specified below,
provided that any amendment be accompanied by the consent of the Credit
Enhancer and an Opinion of Counsel to the Owner Trustee to the effect that
such amendment complies with the provisions of the Agreement and will not
cause the Trust to be subject to an entity level tax. If the purpose of the
amendment is to correct any mistake, eliminate any inconsistency, cure any
ambiguity or deal with any matter not covered, it shall not be necessary to
obtain the consent of any Holder, but the Owner Trustee shall be furnished
with a letter from the Rating Agencies that the amendment will not result in
the downgrading or withdrawal of the rating then assigned to any Security if
determined without regard to the Credit Enhancement Instrument and the counsel
of the Credit Enhancer shall be obtained. If the purpose of the amendment is
to prevent the imposition of any federal or state taxes at any time that any
Security is outstanding, it shall not be necessary to obtain the consent of
any Holder, but the Owner Trustee shall be furnished with an Opinion of
Counsel that such amendment is necessary or helpful to prevent the imposition
of such taxes and is not materially adverse to any Holder and the consent of
the Credit Enhancer shall be obtained. If the purpose of the amendment is to
add or eliminate or change any provision of the Agreement, other than as
specified in the preceding two sentences, the amendment shall require either
(a) a letter from the Rating Agencies that the amendment will not result in
the downgrading or withdrawal of the rating then assigned to any Security, if
determined without regard to the Credit Enhancement Instrument or (b) the
consent of Holders of a majority of the Certificate Percentage Interests of
the Controlling Certificates and the Indenture Trustee; provided, however,
that no such amendment shall (i) reduce in any manner the amount of, or delay
the time of, payments received that are required to be distributed on any
Certificate without the consent of the related Certificateholder and the
Credit Enhancer, or (ii) reduce the aforesaid percentage of Certificates the
Holders of which are required to consent to any such amendment without the
consent of the Holders of all such Certificates then outstanding.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained in
the City and State of New York, accompanied by a written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Certificate Percentage Interest will be issued to
the designated transferee. The initial Certificate Registrar appointed under
the Agreement is the Owner Trustee.
Except as provided in the Agreement, the Certificates are issuable
only in minimum denominations of a 10.0000% Certificate Percentage Interest
and in integral multiples of a 0.0001% Certificate Percentage Interest in
excess thereof. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of authorized denominations, as requested by the Holder
surrendering the same. This Certificate is issued in the Certificate
Percentage Interest above; however, the Certificate Percentage Interest of
this Certificate may change in accordance with Section 3.12 of the Agreement.
The Holder of this Certificate hereby consents to any change in its
Certificate Percentage Interest in accordance with such Section.
No service charge will be made for any such registration of transfer
or exchange, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge payable in
connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or
the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Owner
Trustee, the Certificate Paying Agent, the Certificate Registrar or any such
agent shall be affected by any notice to the contrary.
This Certificate shall be governed by and construed in accordance
with the laws of the State of Delaware.
The obligations created by the Agreement in respect of the
Certificates and the Trust created thereby shall terminate upon the earliest
of (i) the final distribution of all moneys or other property or proceeds of
the Owner Trust Estate in accordance with the terms of the Indenture and the
Agreement, (ii) the Payment Date in September 2011, or (iii) the purchase by
the Servicer of all Revolving Credit Loans pursuant to Section 8.08(a) of the
Servicing Agreement.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, or an authenticating
agent by manual signature, this Certificate shall not be entitled to any
benefit under the 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.
MSDWCC HELOC
TRUST 2000-1
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Owner Trustee
Dated:
--------------------------------------
By:
-----------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned
Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:______________________________
Authorized Signatory
or ______________________________,
as Authenticating Agent of the Trust
By:________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of
assignee) the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
_________________________________*/
-
Signature Guaranteed:
_________________________________*/
-
-----------------
*/ NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available
funds to ----------------------------------------------
-----------------------------------------------------------------
for the account of ________________________________________, account number
______________, or, if mailed by check, to ______________.
Applicable statements should be mailed to __________________.
------------------------------
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT B
TO THE TRUST AGREEMENT
CERTIFICATE OF TRUST
OF
MSDWCC HELOC TRUST 2000-1
THE UNDERSIGNED, Wilmington Trust Company, as owner trustee (the
"Trustee"), for the purpose of forming a business trust does hereby certify as
follows:
1. The name of the business trust is:
MSDWCC HELOC TRUST 2000-1
2. The name and business address of the Trustee of the business trust in
the State of Delaware is ______________________, _________________,
__________, Delaware _____.
3. _______ The business trust reserves the right to amend, alter, change,
or repeal any provision contained in this Certificate of Trust in the manner
now or hereafter prescribed by law.
4. This Certificate of Trust shall be effective upon filing.
THE UNDERSIGNED, being the Trustee hereinbefore named, for the purpose of
forming a business trust pursuant to the provisions of the Delaware Business
Trust Act, does make this certificate of trust, hereby declaring and further
certifying that this is its act and deed and that to the best of the
undersigned's knowledge and belief the facts herein stated are true.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as owner trustee under a Trust
Agreement dated as of August 1, 2000
By:
-------------------------------------
Name:
Title:
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
The undersigned seller, as registered holder (the "Seller"), intends
to transfer the Rule 144A Securities described above to the undersigned buyer
(the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of
the Rule 144A Securities, any interest in the Rule 144A Securities or any
other similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Rule 144A Securities, any interest in the
Rule 144A Securities or any other similar security from, or otherwise
approached or negotiated with respect to the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, that would
constitute a distribution of the Rule 144A Securities under the Securities Act
of 1933, as amended (the "1933 Act"), or that would render the disposition of
the Rule 144A Securities a violation of Section 5 of the 1933 Act or require
registration pursuant thereto, and that the Seller has not offered the Rule
144A Securities to any person other than the Buyer or another "qualified
institutional buyer" as defined in Rule 144A under the 1933 Act.
2. The Buyer warrants and represents to, and covenants with, the
Owner Trustee and the Depositor (as defined in the Trust Agreement (the
"Agreement"), dated as of August 1, 2000 between Morgan Stanley ABS Capital I
Inc., as Depositor and Wilmington Trust Company as Owner Trustee pursuant to
Section 3.05 of the Agreement and Wells Fargo Bank Minnesota, N.A. as
indenture trustee, as follows:
a. The Buyer understands that the Rule 144A Securities have not
been registered under the 1933 Act or the securities laws of any
state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of investment in the Rule 144A Securities.
c. The Buyer has been furnished with all information regarding
the Rule 144A Securities that it has requested from the Seller, the
Indenture Trustee, the Owner Trustee or the Servicer.
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or
any other similar security to, or solicited any offer to buy or
accept a transfer, pledge or other disposition of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached or negotiated with
respect to the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security with, any person in any
manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Rule 144A Securities under
the 1933 Act or that would render the disposition of the Rule 144A
Securities a violation of Section 5 of the 1933 Act or require
registration pursuant thereto, nor will it act, nor has it
authorized or will it authorize any person to act, in such manner
with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term
is defined in Rule 144A under the 1933 Act and has completed either
of the forms of certification to that effect attached hereto as
Annex 1 or Annex 2. The Buyer is aware that the sale to it is being
made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A
Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities may
be resold, pledged or transferred only (i) to a person reasonably
believed to be a qualified institutional buyer that purchases for
its own account or for the account of a qualified institutional
buyer to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the 1933 Act.
3. The Buyer represents that:
(i) either (a) or (b) is satisfied, as marked below:
____ a. The Buyer is not any employee benefit plan subject to
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986 (the "Code"), a Person
acting, directly or indirectly, on behalf of any such plan or any Person
acquiring such Certificates with "plan assets" of a Plan within the
meaning of the Department of Labor regulation promulgated at 29
C.F.R.ss.2510.3-101; or
____ b. The Buyer will provide the Depositor, the Owner
Trustee, the Certificate Registrar and the Servicer with either: (x) an
opinion of counsel, satisfactory to the Depositor, the Owner Trustee, the
Certificate Registrar and the Servicer, to the effect that the purchase
and holding of a Certificate by or on behalf of the Buyer is permissible
under applicable law, will not constitute or result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments) and will not subject
the Depositor, the Owner Trustee, the Certificate Registrar or the
Servicer to any obligation or liability (including liabilities under
ERISA or Section 4975 of the Code) in addition to those undertaken in the
Trust Agreement, which opinion of counsel shall not be an expense of the
Depositor, the Owner Trustee, the Certificate Registrar or the Servicer;
or (y) in lieu of such opinion of counsel, a certification in the form of
Exhibit G to the Trust Agreement; and
(i) the Buyer is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406 and 407
of ERISA and Section 4975 of the Code and understands that each of the parties
to which this certification is made is relying and will continue to rely on
the statements made in this paragraph 3.
4. This document may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together,
shall constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document
as of the date set forth below.
------------------------- ----------------------------
Print Name of Seller Print Name of Buyer
By: By:
----------------------- --------------------------
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. No.
----------------------- -------------------------
Date: Date:
---------------------- -----------------------
ANNEX 1 TO EXHIBIT C
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $______________________1 in securities
(except for the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in accordance
with Rule 144A) and (ii) the Buyer satisfies the criteria in the category
marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization described
in Section 501(c)(3) of the Internal Revenue Code.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking and
is supervised by the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
--------
1 Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that
case, Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined by a
State or Federal authority having supervision over any such institutions
or is a foreign savings and loan association or equivalent institution
and (b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements.
___ Broker-Dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of insurance or
the reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a State or territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Adviser. The Buyer is an investment adviser
registered under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or (d) of
the Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business
development company as defined in Section 202(a)(22) of the Investment
Advisers Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively (a) plans
established and maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political subdivisions, for
the benefit of its employees, or (b) employee benefit plans within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, but is not a trust fund that includes as participants individual
retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject
to a repurchase agreement and (vii) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph. Further, in determining
such aggregate amount, the Buyer may have included securities owned by
subsidiaries of the Buyer, but only if such subsidiaries are consolidated with
the Buyer in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries are
managed under the Buyer's direction. However, such securities were not
included if the Buyer is a majority-owned, consolidated subsidiary of another
enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Rule 144A
Securities are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer may be in reliance on Rule 144A.
___ ___ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. _______ If the answer to the foregoing question is "no", the
Buyer agrees that, in connection with any purchase of securities sold to the
Buyer for the account of a third party (including any separate account) in
reliance on Rule 144A, the Buyer will only purchase for the account of a third
party that at the time is a "qualified institutional buyer" within the meaning
of Rule 144A. In addition, the Buyer agrees that the Buyer will not purchase
securities for a third party unless the Buyer has obtained a current
representation letter from such third party or taken other appropriate steps
contemplated by Rule 144A to conclude that such third party independently
meets the definition of "qualified institutional buyer" set forth in Rule
144A.
7. _______ The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of Rule 144A
Securities will constitute a reaffirmation of this certification as of the
date of such purchase.
Print Name of Buyer
By:
---------------------------------
Name:
Title:
Date:
-------------------------------
ANNEX 2 TO EXHIBIT C
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and
(ii) as marked below, the Buyer alone, or the Buyer's Family of Investment
Companies, owned at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year. For purposes of determining the amount of securities owned by the Buyer
or the Buyer's Family of Investment Companies, the cost of such securities was
used.
____ The Buyer owned $___________________ in securities (other than
the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue
of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each of
the parties to which this certification is made are relying and will continue
to rely on the statements made herein because one or more sales to the Buyer
will be in reliance on Rule 144A. In addition, the Buyer will only purchase
for the Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
--------------------------------
Print Name of Buyer
By:
----------------------------
Name:
Title:
IF AN ADVISER:
--------------------------------
Print Name of Buyer
Date:
---------------------------
EXHIBIT D
FORM OF INVESTOR REPRESENTATION LETTER
, 19
------------------ --
Morgan Stanley ABS Capital I Inc.
1585 Broadway
New York, New York
Wells Fargo Bank Minnesota, N.A.
[Address]
Attention: Corporate Trust Administration
Re: MSDWCC HELOC Asset-Backed Certificates
Series 2000-1
--------------------------------------
Ladies and Gentlemen:
_____________ the "Purchaser") intends to purchase from ___________
(the "Seller") a ___% Certificate Percentage Interest of Certificates of
Series 2000-1 (the "Certificates"), issued pursuant to the Trust Agreement
(the "Trust Agreement"), dated as of August 1, 2000, between Morgan Stanley
ABS Capital I Inc. as depositor (the "Company") and Wilmington Trust Company,
as owner trustee (the "Owner Trustee"), as acknowledged and agreed by Wells
Fargo Bank Minnesota, N.A. as Certificate Registrar. All terms used herein and
not otherwise defined shall have the meanings set forth in the Trust
Agreement. The Purchaser hereby certifies, represents and warrants to, and
covenants with, the Company and the Certificate Registrar that:
1. The Purchaser understands that (a) the Certificates have not
been and will not be registered or qualified under the Securities
Act of 1933, as amended (the "Act") or any state securities law, (b)
the Company is not required to so register or qualify the
Certificates, (c) the Certificates may be resold only if registered
and qualified pursuant to the provisions of the Act or any state
securities law, or if an exemption from such registration and
qualification is available, (d) the Trust Agreement contains
restrictions regarding the transfer of the Certificates and (e) the
Certificates will bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificates for its own
account for investment only and not with a view to or for sale in
connection with any distribution thereof in any manner that would
violate the Act or any applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters, and, in particular, in such matters
related to securities similar to the Certificates, such that it is
capable of evaluating the merits and risks of investment in the
Certificates, (b) able to bear the economic risks of such an
investment and (c) an "accredited investor" within the meaning of
Rule 501(a) promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had an
opportunity to review (a) a copy of the Trust Agreement and (b) such
other information concerning the Certificates, the Revolving Credit
Loans and the Company as has been requested by the Purchaser from
the Company or the Seller and is relevant to the Purchaser's
decision to purchase the Certificates. The Purchaser has had any
questions arising from such review answered by the Company or the
Seller to the satisfaction of the Purchaser.
5. The Purchaser has not and will not nor has it authorized or
will it authorize any person to (a) offer, pledge, sell, dispose of
or otherwise transfer any Certificate, any interest in any
Certificate or any other similar security to any person in any
manner, (b) solicit any offer to buy or to accept a pledge,
disposition of other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approach or negotiate with respect to any
Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (d) make any general
solicitation by means of general advertising or in any other manner
or (e) take any other action, that (as to any of (a) through (e)
above) would constitute a distribution of any Certificate under the
Act, that would render the disposition of any Certificate a
violation of Section 5 of the Act or any state securities law, or
that would require registration or qualification pursuant thereto.
The Purchaser will not sell or otherwise transfer any of the
Certificates, except in compliance with the provisions of the Trust
Agreement.
6. The Purchaser represents:
(i) that either (a) or (b) is satisfied, as marked below:
____ a. The Purchaser is not any employee benefit plan subject
to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986 (the "Code"), a Person
acting, directly or indirectly, on behalf of any such plan or any Person
acquiring such Certificates with "plan assets" of a Plan within the
meaning of the Department of Labor regulation promulgated at 29
C.F.R.ss.2510.3-101; or
____ b. The Purchaser will provide the Depositor, the Owner
Trustee, the Certificate Registrar and the Servicer with either: (x) an
opinion of counsel, satisfactory to the Depositor, the Owner Trustee, the
Certificate Registrar and the Servicer, to the effect that the purchase
and holding of a Certificate by or on behalf of the Purchaser is
permissible under applicable law, will not constitute or result in a
prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code (or comparable provisions of any subsequent enactments) and will not
subject the Depositor, the Owner Trustee, the Certificate Registrar or
the Servicer to any obligation or liability (including liabilities under
ERISA or Section 4975 of the Code) in addition to those undertaken in the
Trust Agreement, which opinion of counsel shall not be an expense of the
Depositor, the Owner Trustee, the Certificate Registrar or the Servicer;
or (y) in lieu of such opinion of counsel, a certification in the form of
Exhibit G to the Trust Agreement; and
(ii) the Purchaser is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406 and 407
of ERISA and Section 4975 of the Code and understands that each of the parties
to which this certification is made is relying and will continue to rely on
the statements made in this paragraph 6.
7. The Purchaser is acquiring the Certificate for its own
behalf and is not acting as agent or custodian for any other person
or entity in connection with such acquisition;
8. The Purchaser is not a partnership, grantor trust or S
corporation for federal income tax purposes, or, if the Purchaser is
a partnership, grantor trust or S corporation for federal income tax
purposes, the Certificates are not more than 50% of the assets of
the partnership, grantor trust or S corporation.
9. The Purchaser is not a non-United States person.
Very truly yours,
By:
--------------------------
Name:
Title:
EXHIBIT E
FORM OF TRANSFEROR REPRESENTATION LETTER
, 19
---------------------- --
Morgan Stanley ABS Capital I Inc.
1585 Broadway
New York, NY
Wells Fargo Bank Minnesota, N.A.
[Address]
Attention: Corporate Trust Administration
Re: MSDWCC HELOC Asset-Backed Certificates
Series 2000-1
--------------------------------------
Ladies and Gentlemen:
__________ (the "Purchaser") intends to purchase from
______________________ (the "Seller") a ___% Certificate Percentage Interest
of [Certificates] of Series 2000-1 (the "Certificates"), issued pursuant to
the Trust Agreement (the "Trust Agreement"), dated as of August 1, 2000
between Morgan Stanley ABS Capital I Inc. as depositor (the "Company") and
Wilmington Trust Company, as owner trustee (the "Owner Trustee"), as
acknowledged and agreed by Wells Fargo Bank Minnesota, N.A. as Certificate
Registrar. All terms used herein and not otherwise defined shall have the
meanings set forth in the Trust Agreement. The Seller hereby certifies,
represents and warrants to, and covenants with, the Company and the
Certificate Registrar that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition
or other transfer of any Certificate, any interest in any Certificate or any
other similar security from any person in any manner, (c) has otherwise
approached or negotiated with respect to any Certificate, any interest in any
Certificate or any other similar security with any person in any manner, (d)
has made any general solicitation by means of general advertising or in any
other manner, or (e) has taken any other action, that (as to any of (a)
through (e) above) would constitute a distribution of the Certificates under
the Securities Act of 1933 (the "Act"), that would render the disposition of
any Certificate a violation of Section 5 of the Act or any state securities
law, or that would require registration or qualification pursuant thereto. The
Seller will not act, in any manner set forth in the foregoing sentence with
respect to any Certificate. The Seller has not and will not sell or otherwise
transfer any of the Certificates, except in compliance with the provisions of
the Trust Agreement.
Very truly yours,
(Seller)
By:
Name:
Title:
EXHIBIT F
CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status ("certificate") is delivered
pursuant to Section 3.05 of the Trust Agreement, dated as of August 1, 2000
(the "Trust Agreement"), between Morgan Stanley ABS Capital I Inc., as
depositor and Wilmington Trust Company, as Owner Trustee, in connection with
the acquisition of, transfer to or possession by the undersigned, whether as
beneficial owner (the "Beneficial Owner"), or nominee on behalf of the
Beneficial Owner of the MSDWCC HELOC Asset-Backed Certificates, Series 2000-1
(the "Certificate"). Capitalized terms used but not defined in this
certificate have the respective meanings given them in the Trust Agreement.
Each holder must complete Part I, Part II (if the holder is a nominee),
and in all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form
W-9 relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446
of the Internal Revenue Code (relating to withholding tax on foreign partners)
do not apply in respect of the Certificate held by the undersigned, the
undersigned hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is )
not a non-resident alien for purposes of U.S.
income taxation;
2. My (The Beneficial Owner's) name
and home address are:
--------------------
--------------------
; and
3. My (The Beneficial Owner's) U.S.
taxpayer identification number (Social Security
Number) is .
--------------------------
B. Corporate, Partnership or Other Entity as Beneficial Owner
1. _____________ (Name of the Beneficial
Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as
those terms are defined in the Code and Treasury
Regulations;
2. The Beneficial Owner's office address
and place of incorporation (if applicable) is
__________________; and
3. The Beneficial Owner's U.S. employer
identification number is .
--------------------
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this certificate has been made in reliance upon
information contained in:
an IRS Form W-9
------
a form such as this or substantially similar
------
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that
the form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees to
notify the Trust within sixty (60) days of the date that the Beneficial Owner
becomes a foreign person. The undersigned understands that this certificate
may be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or
both.
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct and
complete and will further declare that I will inform the Trust of any change
in the information provided above, and, if applicable, I further declare that
I have the authority* to sign this document.
------------------------
Name
------------------------
Title (if applicable)
------------------------
Signature and Date
*NOTE: If signed pursuant to a power of attorney, the power of attorney
must accompany this certificate.
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
_____________, 200__
Morgan Stanley ABS Capital I Inc.
1585 Broadway
New York, New York
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Morgan Stanley Dean Witter Credit Corporation
[Address]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley ABS Capital I Inc.
HELOC Asset-Backed Certificates, Series 2000-1
----------------------------------------------
Dear Sirs:
__________________________________ (the "Transferee") intends to
acquire from _____________________ (the "Transferor") a ___% Certificate
Percentage Interest of Morgan Stanley ABS Capital I Inc. MSDWCC HELOC
Asset-Backed Certificates, Series 2000-1 (the "Certificates"), issued pursuant
to a Trust Agreement (the "Trust Agreement") dated as of August 1, 2000 among
Morgan Stanley ABS Capital I Inc., as depositor (the "Depositor") and
Wilmington Trust Company, as trustee (the "Owner Trustee"). Capitalized terms
used herein and not otherwise defined shall have the meanings assigned thereto
in the Trust Agreement.
The Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Owner Trustee, the Certificate Registrar
and the Servicer that either:
(1) The Certificates (i) are not being acquired by, and will
not be transferred to, any employee benefit plan within the meaning
of section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or other retirement arrangement,
including individual retirement accounts and annuities, Keogh plans
and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements
are invested, that is subject to Section 406 of ERISA or Section
4975 of the Internal Revenue Code of 1986 (the "Code") (any of the
foregoing, a "Plan"), (ii) are not being acquired with "plan assets"
of a Plan within the meaning of the Department of Labor ("DOL")
regulation, 29 C.F.R. ss. 2510.3-101, and (iii) will not be
transferred to any entity that is deemed to be investing in plan
assets within the meaning of the DOL regulation, 29 C.F.R. ss.
2510.3-101; or
The Transferee is familiar with the prohibited transaction restrictions
and fiduciary responsibility requirements of Sections 406 and 407 of ERISA and
Section 4975 of the Code and understands that each of the parties to which
this certification is made is relying and will continue to rely on the
statements made herein.
Very truly yours,
By:
-------------------------------
Name:
Title:
EXHIBIT H
FORM OF REPRESENTATION LETTER
_____________, 200__
Morgan Stanley ABS Capital I Inc.
1585 Broadway
New York, New York
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Morgan Stanley Dean Witter Credit Corporation
[Address]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley Dean Witter Credit Corporation
HELOC Asset-Backed Certificates, Series 2000-1
----------------------------------------------
Dear Sirs:
__________________________________ (the "Transferee") intends to
acquire from _____________________ (the "Transferor") a ___% Certificate
Percentage Interest of MSDWCC HELOC Asset-Backed Certificates, Series 2000-1
(the "Certificates"), issued pursuant to a Trust Agreement (the "Trust
Agreement") dated as of August 1, 2000 among Morgan Stanley ABS Capital I
Inc., as depositor (the "Depositor") and Wilmington Trust Company, as trustee
(the "Owner Trustee"). Capitalized terms used herein and not otherwise defined
shall have the meanings assigned thereto in the Trust Agreement.
The Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Owner Trustee, the Certificate Registrar
and the Servicer that:
(1) the Transferee is acquiring the Certificate for its own
behalf and is not acting as agent or custodian for any other person
or entity in connection with such acquisition; and
(2) the Transferee is not a partnership, grantor trust or S
corporation for federal income tax purposes, or, if the Transferee
is a partnership, grantor trust or S corporation for federal income
tax purposes, the Certificates are not more than 50% of the assets
of the partnership, grantor trust or S corporation.
Very truly yours,
By:
-------------------------------
Name:
Title:
