Exhibit 99.4
EXECUTION COPY
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CWABS, INC.
Depositor
WILMINGTON TRUST COMPANY
Owner Trustee
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SERIES 2004-A TRUST SUPPLEMENT
Dated as of February 20, 2004
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TRANSFEROR CERTIFICATE
SERIES 2004-A
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Table of Contents
Page
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ARTICLE I
CREATION OF SERIES 2004-A TRANSFEROR CERTIFICATES
Section 1.01 Designation.......................................................1
ARTICLE II
DEFINITIONS AND CONSTRUCTION
Section 2.01 Definitions.......................................................2
Section 2.02 Other Defined Terms; Rules of Construction........................2
ARTICLE III.
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 3.01 Distributions to Certificateholders...............................3
ARTICLE IV.
THE CERTIFICATES
Section 4.01 Delivery of Certificates; Execution of Series Documents...........3
Section 4.02 Form of Certificates; Denominations...............................3
Section 4.03 Registration of Transfer of Certificates..........................3
Section 4.04 Furnishing Documents to Certificateholders........................4
Section 4.05 Restrictions on Transfer; Legends.................................4
Section 4.06 Indemnification of the Trust by the Transferor....................7
ARTICLE V
TERMINATION OF SUBTRUST
Section 5.01 Termination.......................................................7
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01 Amendment.........................................................8
Section 6.02 Governing Law.....................................................8
Section 6.03 Counterparts......................................................8
Section 6.04 Ratification of Trust Agreement...................................8
Section 6.05 Tax Treatment.....................................................8
Section 6.06 Consents..........................................................8
EXHIBITS
EXHIBIT A Form of Series 2004-A Transferor Certificates.............A-1
EXHIBIT B Form of Representation Letter.............................B-1
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This SERIES 2004-A TRUST SUPPLEMENT, dated as of February 20, 2004
between CWABS INC., a Delaware corporation, as depositor, and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as Owner Trustee,
WITNESSETH:
WHEREAS, pursuant to Section 3.10 of the Master Trust Agreement, the
Depositor and the Owner Trustee may enter into a Series Trust Supplement to
authorize the issuance by the Trust of Transferor Certificates for a Series;
and
WHEREAS, by executing and delivering this Series Trust Supplement, the
parties are providing for the creation of a subtrust of the Trust and the
Series 2004-A Transferor Certificates and specifying its principal terms;
NOW, THEREFORE, the parties agree as follows.
ARTICLE I
CREATION OF SERIES 2004-A TRANSFEROR CERTIFICATES
Section 1.01 Designation.
(a) The Trust hereby establishes the Series 2004-A Subtrust to hold the
Series Assets to be transferred to it pursuant to the Series 2004-A Sale and
Servicing Agreement and be the issuer of the Series 2004-A Notes under the
Series 2004-A Indenture. The Series 2004-A Subtrust shall be a separate series
of the Trust pursuant to Section 3804 and 3806(b)(2) of the Statutory Trust
Statute.
(b) On the Closing Date, the Trust will issue a Series of Certificates
consisting of one class designated as the "Revolving Home Equity Loan Asset
Backed Transferor Certificates, Series 2004-A" (the "Series 2004-A Transferor
Certificates") pursuant to this Series 2004-A Trust Supplement.
(c) The Series 2004-A Transferor Certificates are "Transferor
Certificates" and this Series 2004-A Trust Supplement is a "Series Trust
Supplement" for all purposes under the Master Trust Agreement. If any
provision of the Series 2004-A Transferor Certificates or this Series 2004-A
Trust Supplement conflicts with any provision of the Master Trust Agreement,
the provisions of the Series 2004-A Transferor Certificates or this Series
2004-A Trust Supplement, as the case may be, shall be controlling.
(d) Each term defined in Section 2.01 shall relate only to the Series
2004-A Transferor Certificates and this Series 2004-A Trust Supplement and to
no other Transferor Certificates or Series Trust Supplements.
ARTICLE II
DEFINITIONS AND CONSTRUCTION
Section 2.01 Definitions.
Unless the context requires a different meaning, capitalized terms are
used in this Series 2004-A Trust Supplement as defined below.
"Agreement" means the Master Trust Agreement together with this Series
2004-A Trust Supplement.
"Credit Enhancer" means Financial Guaranty Insurance Company, as credit
enhancer as described in the Series 2004-A Indenture.
"Master Trust Agreement" means the Master Trust Agreement, dated as of
August 28, 2000, between CWABS, Inc., as depositor and Wilmington Trust
Company, as owner trustee.
"Series 2004-A" means the Series created by this Series 2004-A Trust
Supplement.
"Series 2004-A Indenture" means the Indenture of even date with this
Series 2004-A Trust Supplement between the Trust and the Indenture Trustee.
"Series 2004-A Notes" means the Notes issued by the Series 2004-A
Subtrust under the Series 2004-A Indenture.
"Series 2004-A Sale and Servicing Agreement" means the Sale and Servicing
Agreement of even date with this Series 2004-A Trust Supplement among the
Depositor, the Sponsor and Master Servicer, the Trust, and the Indenture
Trustee.
"Series 2004-A Subtrust" means the separate series of the Trust created
by this Series 2004-A Trust Supplement.
"Series 2004-A Transaction Documents" means the Transaction Documents
under the Series 2004-A Indenture.
"Series 2004-A Transferor Certificateholders" means the Holders of the
Series 2004-A Transferor Certificates.
"Series 2004-A Transferor Certificates" means the Transferor Certificates
issued by the Series 2004-A Subtrust under this Series 2004-A Trust
Supplement.
"Series 2004-A Trust Supplement" means this agreement supplementing the
Master Trust Agreement.
2
Section 2.02 Other Defined Terms; Rules of Construction.
Capitalized terms used in this Series 2004-A Trust Supplement that are
not otherwise defined have the meanings given to them in the Master Trust
Agreement, and if not defined there, in the Series 2004-A Sale and Servicing
Agreement, including those incorporated from the Series 2004-A Indenture.
Defined terms include, as appropriate, all genders and the plural as well as
the singular. In addition, Section 1.03 (Rules of Construction) of the Master
Trust Agreement is incorporated by reference with appropriate substitution of
this Series 2004-A Trust Supplement for references in that Section to the
Master Trust Agreement so that the language of that Section will read
appropriately as applying to this Series 2004-A Trust Supplement.
ARTICLE III.
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 3.01 Distributions to Certificateholders.
On each Distribution Date, the Certificate Paying Agent shall distribute
to the Series 2004-A Transferor Certificateholders pro rata (based on each
holder's percentage ownership of the entire Series 2004-A Transferor
Certificate interest) any funds made available to it under Section 8.03 of the
Series 2004-A Indenture. Distributions to each Series 2004-A Transferor
Certificateholder shall be made by wire transfer of immediately available
funds to the Series 2004-A Transferor Certificateholder's account at a bank or
other entity having appropriate facilities. If appropriate notice of wiring
instructions is not given by any Series 2004-A Transferor Certificateholder,
then distribution to that Series 2004-A Transferor Certificateholder shall be
by check mailed to the Series 2004-A Transferor Certificateholder at its
address as it appears on the Certificate Register.
ARTICLE IV.
THE CERTIFICATES
Section 4.01 Delivery of Certificates; Execution of Series Documents.
On the Closing Date, the Owner Trustee shall execute and authenticate the
Series 2004-A Transferor Certificates in accordance with Section 3.03 of the
Master Trust Agreement and deliver them to the order of the Depositor when
authenticated. The Owner Trustee is further authorized to execute and deliver
the Series 2004-A Transaction Documents.
Section 4.02 Form of Certificates; Denominations.
The Series 2004-A Transferor Certificates shall be issued in definitive,
fully registered form and shall be substantially in the form of Exhibit A.
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Section 4.03 Registration of Transfer of Certificates.
No registration of transfer of any Series 2004-A Transferor Certificate
shall be made unless the transferor or the transferee has delivered, at its
expense, to the Trust, the Depositor, and the Certificate Registrar a fully
completed representation letter, substantially in the form of Exhibit B. Each
Holder of a Series 2004-A Transferor Certificate must satisfy the transfer
restrictions in the representation letter.
Section 4.04 Furnishing Documents to Certificateholders.
The Owner Trustee shall furnish to the Series 2004-A Transferor
Certificateholders, promptly upon written request, copies of all reports,
notices, requests, demands, certificates, financial statements, and any other
instruments furnished to the Owner Trustee under the Transaction Documents.
The Series 2004-A Transferor Certificateholders shall be entitled to receive
any report in accordance with the Series 2004-A Indenture Supplement, the
Servicing Agreement, and the Master Trust Agreement, as applicable.
Section 4.05 Restrictions on Transfer; Legends.
(a) The Series 2004-A Transferor Certificates shall be assigned,
transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed
(collectively, for purposes of this Section and any other Section referring to
the Transferor Certificates, "transferred" or a "transfer") only in accordance
with this Section.
(b) No transfer of a Series 2004-A Transferor Certificate will be made
unless the transfer is exempt from the registration requirements of the
Securities Act of 1933 (the "Act") and any applicable state securities laws or
is made in accordance with the Act and those laws. Except for the initial
issuance of a Series 2004-A Transferor Certificate to the Transferor (and any
subsequent transfer by that Transferor to one of its Affiliates), the Owner
Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and
in form and substance satisfactory to the Owner Trustee certifying to the
Owner Trustee the facts surrounding the transfer, which investment letter
shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance
satisfactory to the Owner Trustee and the Depositor that the transfer may
be made pursuant to an exemption from the Act, describing the applicable
exemption and its basis, or is being made pursuant to the Act, which
Opinion of Counsel shall not be an expense of the Owner Trustee or the
Depositor.
The holder of a Series 2004-A Transferor Certificate desiring to effect a
transfer shall indemnify the Series 2004-A Subtrust and the Trust against any
liability that may result if the transfer is not so exempt or is not made in
accordance with any federal and state laws.
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(c) No transfer of an interest in a Series 2004-A Transferor Certificate
will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable
to and in form and substance satisfactory to the Owner Trustee, to the
effect that the proposed Transferor is not an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the
Code, nor a person acting on behalf of, or investing plan assets of, any
such plan, which representation letter shall not be an expense of the
Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the
effect that the purchase or holding of the Series 2004-A Transferor
Certificate will not result in a non-exempt prohibited transaction under
ERISA or Section 4975 of the Code and will not subject the Owner Trustee
to any obligation in addition to those undertaken in the Agreement, which
Opinion of Counsel shall not be an expense of the Owner Trustee or the
Depositor;
except that, in the case of the initial issuance of a Series 2004-A Transferor
Certificate to the Transferor (and any subsequent transfer by the Transferor
to one of its Affiliates), the representation in clause (i) shall be deemed to
have been made.
(d) No transfer of an interest in a Series 2004-A Transferor Certificate
after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws
of the United States or any State and expressly assumes the performance
of every obligation of the existing Transferor under the Agreement and
Series 2004-A Transaction Documents pursuant to an agreement acceptable
to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an
Officer's Certificate stating that the transfer complies with this
Section 4.05(d) and that all the conditions in this Section 4.05(d) have
been complied with, and an Opinion of Counsel stating that all the
conditions in this Section 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the
transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an
Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the treatment of the
Series 2004-A Notes after the transfer as debt for federal and
applicable state income tax purposes,
(B) the transfer will not result in the Series 2004-A Subtrust
or the Trust being subject to tax at the entity level for federal or
applicable state tax purposes,
(C) the transfer will not have any material adverse effect on
the federal or applicable state income taxation of any Holder of the
Series 2004-A
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Notes or any person who is the beneficial owner of a Series 2004-A
book-entry Note, and
(D) the transfer will not result in the arrangement created by
the Agreement or any "portion" of the Trust, being treated as a
taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the
perfection of the interest of the Series 2004-A Subtrust in the related
Mortgage Loans and the other related property conveyed to the Series
2004-A Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed
pursuant to Section 4.06.
The requirement that the proposed Transferor be organized and existing
under the laws of the United States or any State shall not apply if the Rating
Agency Condition has been satisfied taking that into account.
(e) Each Series 2004-A Transferor Certificate shall bear a legend
substantially in the following form:
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 the Securities Act
of 1933 and the securities laws of any state or is sold or transferred in
transactions that are exempt from registration under the Securities Act of
1933 and under applicable state law and is transferred in accordance with
Section 4.05 of the Series 2004-A Trust Supplement to the CWABS Master Trust
Agreement. Neither this certificate nor any interest in it may be transferred
unless the transferee delivers to the trustee either a representation letter
to the effect that the transferee is not an employee benefit plan subject to
the Employee Retirement Income Security Act of 1974, as amended, a plan
subject to Section 4975 of the Code, as amended, or a person acting on behalf
of or using the assets of any such plan; or an opinion of counsel in
accordance with Section 4.05(c) of the Series 2004-A Trust Supplement to the
CWABS Master Trust Agreement. Notwithstanding anything else to the contrary
herein, any purported transfer of this certificate to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the opinion of
counsel satisfactory to the trustee as described above shall be void.
(f) No Series 2004-A Transferor Certificate shall be transferred except
to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an
affiliate of any of them) or (ii) a qualified institutional buyer (as defined
in Rule 144A under the Securities Act). Each person (other than the Master
Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a
Series 2004-A Transferor Certificate is proposed to be transferred will be
required to certify to the Transferor, the Trust, and the Certificate
Registrar that it is a qualified institutional buyer.
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(g) Notwithstanding anything in this Series 2004-A Trust Supplement or
the Master Trust Agreement to the contrary, the Depositor, without the consent
of any Noteholder or Certificateholder, may amend this Section 4.05 with the
consent of the Credit Enhancer if it receives an Opinion of Counsel to the
effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and
Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a
publicly traded partnership taxable as a corporation for United States
federal income tax purposes and will not result in a United States
federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of
the federal securities laws.
Section 4.06 Indemnification of the Trust by the Transferor.
The holders from time to time of any Series 2004-A Transferor Certificate
by their acceptance of a Series 2004-A Transferor Certificate agree to be
liable directly to the injured party for the entire amount of any losses,
claims, damages, liabilities, and expenses of the Series 2004-A Subtrust to
the extent that a person would be liable for them if the Series 2004-A
Subtrust were a partnership under the Delaware Revised Uniform Limited
Partnership Act and the person was a general partner of the partnership.
The holders from time to time of any Series 2004-A Transferor Certificate
by their acceptance of a Series 2004-A Transferor Certificate agree to
indemnify the Series 2004-A Subtrust, the Indenture Trustee, and the Owner
Trustee against any losses, claims, damages, liabilities, and expenses in
connection with the Agreement because of any acts, omissions, or alleged acts
or omissions arising out of
o activities of the Series 2004-A Subtrust or the Owner Trustee,
o actions of the Master Servicer, or
o any judgment, award, settlement, reasonable attorneys' fees, and
other costs or expenses incurred in connection with the defense of
any actual or threatened action, proceeding, or claim;
except that the holders from time to time of any Series 2004-A Transferor
Certificate shall not indemnify the Indenture Trustee or the Owner Trustee, as
the case may be (but shall indemnify any other injured party) for any losses,
claims, damages, liabilities, and expenses due to the Indenture Trustee's or
the Owner Trustee's willful malfeasance, bad faith, or negligence or because
of the Indenture Trustee's or the Owner Trustee's reckless disregard of its
obligations the Agreement. The provisions of this indemnity shall run directly
to and be enforceable by an injured party.
Losses, claims, damages, liabilities, and expenses in any way
attributable to defaults on the Mortgage Loans are excluded from the coverage
of the provisions of this Section.
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ARTICLE V
TERMINATION OF SUBTRUST
Section 5.01 Termination.
(a) The Series 2004-A Transferor Certificates will be retired and the
Series 2004-A Subtrust will be dissolved when the final distribution from the
Series Assets of Series 2004-A is made to the Series 2004-A Transferor
Certificateholders resulting in the Series 2004-A Subtrust having no further
Series Assets.
(b) The bankruptcy, liquidation, or dissolution of any Series 2004-A
Transferor Certificateholder shall not (x) terminate this Series 2004-A Trust
Supplement, the Series 2004-A Subtrust, or the Trust, (y) entitle that
Certificateholder's legal representatives to obtain an accounting or to take
any action in any court for a partition or winding up of any part of the Trust
or the Series Assets of the Series 2004-A Subtrust, or (z) otherwise affect
the rights, obligations, and liabilities of the parties to this Series 2004-A
Trust Supplement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01 Amendment.
No amendment may be made to this Series 2004-A Trust Supplement other
than as provided in the Master Trust Agreement.
Section 6.02 Governing Law.
THIS TRUST SUPPLEMENT AND EACH SERIES 2004-A TRANSFEROR CERTIFICATE SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS PROVISIONS THAT WOULD RESULT IN THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
Section 6.03 Counterparts.
This Series 2004-A Trust Supplement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one
instrument.
Section 6.04 Ratification of Trust Agreement.
As supplemented by this Series 2004-A Trust Supplement, the Master Trust
Agreement is in all respects ratified and confirmed, and the Master Trust
Agreement as so supplemented by this Series 2004-A Trust Supplement shall be
read, taken and construed as one and the same instrument.
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Section 6.05 Tax Treatment.
The Trust and each Holder of a Series 2004-A Transferor Certificate (by
acceptance of its Transferor Certificate) agrees to treat the Series 2004-A
Transferor Certificates as equity for federal and state income tax purposes.
Section 6.06 Consents.
All consents of the Credit Enhancer under this Series 2004-A Trust
Supplement or the Master Trust Agreement are only effective if delivered in a
writing signed by the Credit Enhancer.
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IN WITNESS WHEREOF, the parties have cause this Series 2004-A Trust
Supplement to be duly executed by their respective officers as of the day and
year first above written.
CWABS, INC.
Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
WILMINGTON TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
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EXHIBIT A
FORM OF TRANSFEROR CERTIFICATE
This certificate has not been and will not be registered under the Securities
Act of 1933, as amended, or the securities laws of any state and may not be
resold or transferred unless it is registered pursuant to the Securities Act
of 1933 and the securities laws of any state or is sold or transferred in
transactions that are exempt from registration under the Securities Act of
1933 and under applicable state law and is transferred in accordance with
Section 4.05 of the Series 2004-A Trust Supplement to the CWABS Master Trust
Agreement. Neither this certificate nor any interest in it may be transferred
unless the transferee delivers to the trustee either a representation letter
to the effect that the transferee is not an employee benefit plan subject to
the Employee Retirement Income Security Act of 1974, as amended, a plan
subject to Section 4975 of the Code, as amended, or a person acting on behalf
of or using the assets of any such plan; or an opinion of counsel in
accordance with Section 4.05(c) of the Series 2004-A Trust Supplement to the
CWABS Master Trust Agreement. Notwithstanding anything else to the contrary
herein, any purported transfer of this certificate to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the opinion of
counsel satisfactory to the trustee as described above shall be void.
A-1
Date of Series Trust Supplement to
Master Trust Agreement : February 20, 2004
Cut-off Date : January 20, 2004
Percentage Interest : 100%
Certificate No. : [_______]
First Distribution Date :
REVOLVING HOME EQUITY LOAN ASSET BACKED TRANSFEROR CERTIFICATE
SERIES 2004-A
Transferor Certificate
evidencing a percentage interest in the distributions allocable
to the Transferor Certificates evidencing an undivided interest
in a trust consisting primarily of a pool of adjustable rate
home equity revolving credit line mortgage loans sold by
CWABS, INC.
This Certificate does not represent an obligation of or interest in
CWABS, Inc. (the "Depositor"), Countrywide Home Loans, Inc., or the Owner
Trustee or any of their affiliates. Neither this Certificate nor the
underlying Series Assets are guaranteed or insured by any governmental agency
or instrumentality.
This certifies that [____________________________] is the registered
owner of the Percentage Interest evidenced by this Certificate in the entire
interest in the Series 2004-A Subtrust of the CWABS Master Trust, consisting
primarily of a pool of mortgage loans (the "Mortgage Loans") transferred by
the Depositor and serviced by Countrywide Home Loans, Inc. (in that capacity,
the "Master Servicer"). The Series 2004-A Subtrust of the CWABS Master Trust
was created pursuant to a Series 2004-A Trust Supplement, dated as specified
above, to the CWABS Master Trust Agreement, dated as of August 28, 2000
(together, the "Agreement"), between the Depositor and Wilmington Trust
Company, as trustee (the "Owner Trustee"), a summary of some of the pertinent
provisions of which follows. Capitalized terms used in this Certificate
without definition have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the Agreement. The Holder of
this Certificate by virtue of the acceptance of it agrees to be bound by the
Agreement.
This Certificate is one of the Transferor Certificates from a duly
authorized issue of Certificates designated as Revolving Home Equity Loan
Asset Backed Transferor Certificates, Series 2004-A, representing, to the
extent specified in the Agreement, an undivided interest in:
(i) each Mortgage Loan, including its Asset Balance (including all
Additional Balances) and all collections received on it after the Cut-off
Date (excluding payments due by the Cut-off Date);
A-2
(ii) property that secured a Mortgage Loan that is acquired by
foreclosure or deed in lieu of foreclosure;
(iii) the Depositor's rights under the Purchase Agreement;
(iv) the Depositor's rights under the hazard insurance policies
covering Mortgaged Properties; and
(v) certain other property described in the Agreement (collectively,
the "Series Assets").
A first priority security interest in all the Series Assets has been granted
to the Indenture Trustee under the Indenture.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds available under the Agreement for payment of
this Certificate and that the Owner Trustee in its individual capacity is not
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.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights, and limitations
of rights and obligations evidenced by this Certificate, and the rights and
obligations of the Owner Trustee.
The Agreement may be amended in any way by the Depositor and the Owner
Trustee, with the consent of any affected Certificateholder if the Rating
Agency Condition is satisfied and the amendment would not cause any adverse
tax event for any Noteholder.
No transfer of this Certificate shall be made unless the transfer is
exempt from the registration requirements of the Securities Act of 1933 (the
"Act") and any applicable state securities laws or is made in accordance with
the Act and those laws. In connection with any transfer of this Certificate,
the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and
in form and substance satisfactory to the Owner Trustee certifying to the
Owner Trustee the facts surrounding the transfer, which investment letter
shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance
satisfactory to the Owner Trustee and the Depositor that the transfer may
be made pursuant to an exemption from the Act, describing the applicable
exemption and its basis, or is being made pursuant to the Act, which
Opinion of Counsel shall not be an expense of the Owner Trustee or the
Depositor.
In connection with any transfer of this Certificate, the holder transferring
this Certificate shall indemnify the Series 2004-A Subtrust and the Trust
against any liability that may result if the transfer is not so exempt or is
not made in accordance with any federal and state laws.
Neither this Certificate nor any legal or beneficial interest in it may
be, directly or indirectly, purchased, transferred, sold, pledged, assigned,
or otherwise disposed of, and any
A-3
proposed transferee of this Certificate shall not become its registered
Holder, unless the conditions in Section 4.05 of the Agreement are satisfied.
No service charge shall be made for the registration of transfer or
exchange of this Certificate, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of this Certificate.
The Owner Trustee, the Certificate Registrar, and any Certificate Paying
Agent will treat the person in whose name this Certificate is registered in
the Certificate Register as its owner for the purpose of receiving
distributions pursuant to Section 5.02 of the Master Trust Agreement and for
all other purposes whatsoever, and none of the Owner Trustee, the Certificate
Registrar, and any Certificate Paying Agent shall be bound by any notice to
the contrary.
The obligations created by the Agreement will terminate and this
Certificate will be retired and the Series 2004-A Subtrust will be dissolved
when the final distribution from the Series Assets is made resulting in the
Series 2004-A Subtrust having no further Series Assets. The Transferor may
effect the transfer of all the Mortgage Loans at their termination purchase
price on any Distribution Date from the Distribution Date immediately before
which the aggregate Note Principal Balance is less than or equal to 10% of the
Original Note Principal Balance. This transfer will result in the termination
of the Agreement and the dissolution of the Series 2004-A Subtrust.
A-4
Unless the certificate of authentication on this Certificate has been
executed by the Indenture Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any
purpose.
Dated: February 20, 2004
WILMINGTON TRUST COMPANY
not in its individual capacity but
solely as Owner Trustee on behalf of
the Trust
By:
-----------------------------
Certificate of Authentication:
This is one of the Transferor Certificates
referenced in the within-mentioned Agreement.
JPMORGAN CHASE BANK
By:
-------------------------
Authorized Officer
A-5
EXHIBIT B
FORM OF TRANSFEROR INVESTMENT LETTER
FOR TRANSFEROR CERTIFICATES
Date:
CWABS, Inc.
as Depositor
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ________________
Wilmington Trust Company, as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Re: CWABS Master Trust
Countrywide Home Equity Loan Trust 2004-A,
Revolving Home Equity Loan Asset Backed Securities,
Series 2004-A Transferor Certificates
-----------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale by
_____________ (the "Transferor") to ______________________ (the "Transferee")
of the Certificates representing a ____% Percentage Interest (the "Transferred
Certificates"). All capitalized terms used in this certificate without
definition have the meanings given to them in the Master Trust Agreement,
dated as of August 28, 2000, between CWABS, Inc., as depositor, and Wilmington
Trust Company, as owner trustee, and the related trust supplement for Series
2004-A, dated as of February 20, 2004. The Transferor hereby certifies,
represents, and warrants to you that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer them free from any claims and encumbrances
whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold, or otherwise disposed of any Certificate,
any interest in any Certificate, or any other similar security to any person
in any manner, (b) solicited any offer to buy or accept a transfer, pledge, or
other disposition of any Certificate, any interest in any Certificate, or any
other similar security from any person in any manner, (c) 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) made any
general solicitation by
B-1
general advertising or in any other manner, or (e) taken any other action that
(in the case of any of the acts described in clauses (a) through (e) of this
paragraph) would constitute a distribution of any Certificate under the
Securities Act of 1933, as amended (the "Securities Act"), or would render the
disposition of any Certificate a violation of Section 5 of the Securities Act
or any state securities laws, or would require registration or qualification
of any Certificate pursuant to the Securities Act or any state securities
laws.
3. The Transferor and any person acting on behalf of the Transferor in
this matter reasonably believe that the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act (a "Qualified Institutional Buyer") purchasing for its own
account or for the account of a Qualified Institutional Buyer. In determining
whether the Transferee is a Qualified Institutional Buyer, the Transferor and
any person acting on behalf of the Transferor in this matter have relied on
the following to establish the Transferee's ownership and discretionary
investments of securities (check one or more):
/ / The Transferee's most recent publicly available financial
statements, which statements present the information as of a date
within 16 months preceding the date of sale of the Transferred
Certificate in the case of a U.S. purchaser and within 18 months
preceding such date of sale for a foreign purchaser; or
/ / The most recent publicly available information appearing in
documents filed by the Transferee with the Securities and Exchange
Commission or another United States federal, state, or local
governmental agency or self-regulatory organization, or with a
foreign governmental agency or self-regulatory organization, which
information is as of a date within 16 months preceding the date of
sale of the Transferred Certificate in the case of a U.S. purchaser
and within 18 months preceding such date of sale for a foreign
purchaser; or
/ / The most recent publicly available information appearing in a
recognized securities manual, which information is as of a date
within 16 months preceding the date of sale of the Transferred
Certificate in the case of a U.S. purchaser and within 18 months
preceding such date of sale for a foreign purchaser; or
/ / A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the
Transferee, specifying the amount of securities owned and invested
on a discretionary basis by the Transferee as of a specific date on
or since the close of the Transferee's most recent fiscal year, or,
in the case of a Transferee that is a member of a "family of
investment companies," as that term is defined in Rule 144A, a
certification by an executive officer of the investment adviser
specifying the amount of securities owned by the "family of
investment companies" as of a specific date on or since the close of
the Transferee's most recent fiscal year.
B-2
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned and
invested on a discretionary basis by an entity for purposes of establishing
whether such entity is a Qualified Institutional Buyer:
o the following instruments and interests shall be excluded:
securities of issuers that are affiliated with the Transferee;
securities that are part of an unsold allotment to or subscription
by the Transferee, if the Transferee is a dealer; securities of
issuers that are part of the Transferee's "family of investment
companies," if the Transferee is a registered investment company;
bank deposit notes and certificates of deposit; loan participations;
repurchase agreements; securities owned but subject to a repurchase
agreement; and currency, interest rate, and commodity swaps;
o the aggregate value of the securities shall be the cost of such
securities, except where the entity reports its securities holdings
in its financial statements on the basis of their market value, and
no current information with respect to the cost of those securities
has been published, in which case the securities may be valued at
market;
o securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements prepared in
accordance with generally accepted accounting principles may be
included if the investments of such subsidiaries are managed under
the direction of the entity, except that, unless the entity is a
reporting company under Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, securities owned by such
subsidiaries may not be included if the entity itself is a
majority-owned subsidiary that would be included in the consolidated
financial statements of another enterprise.
5. The Transferor or a person acting on its behalf has taken reasonable
steps to ensure that the Transferee is aware that the Transferor is relying on
the exemption from the provisions of Section 5 of the Securities Act provided
by Rule 144A.
B-3
6. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding (a) the
Transferred Certificates and payments on them, (b) the nature and performance
of the Mortgage Loans, and (c) the Indenture, the Agreement, and the Trust
Estate, that the Transferee has requested.
Very truly yours,
---------------------------------
(Transferor)
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
B-4
FORM OF TRANSFEREE INVESTMENT LETTER
FOR TRANSFEROR CERTIFICATES
Date:
CWABS, Inc.
as Depositor
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ________________
Wilmington Trust Company, as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Re: CWABS Master Trust
Countrywide Home Equity Loan Trust 2004-A,
Revolving Home Equity Loan Asset Backed Securities,
Series 2004-A Transferor Certificates
------------------------------------------------------
Ladies and Gentlemen:
_______________________ (the "Transferee") intends to purchase from
______________________ (the "Transferor") Certificates representing a ___%
percentage interest in the entire interest in the Certificates (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Agreement. All capitalized terms
used in this certificate without definition have the meanings given to them in
the Master Trust Agreement, dated as of August 28, 2000, between CWABS, Inc.,
as depositor, and Wilmington Trust Company, as owner trustee, and the related
trust supplement for Series 2004-A, dated as of February 20, 2004. The
Transferee hereby certifies, represents, and warrants that:
1. The Transferee is a "qualified institutional
buyer" (a "Qualified Institutional Buyer") as that term is
defined in Rule 144A ("Rule 144A") under the Securities
Act of 1933, as amended (the "Securities Act"), and has
completed one of the forms of certification to that effect
attached as Annex 1 and Annex 2. The Transferee is aware
that the sale to it of the Transferred Certificates is
being made in reliance on Rule 144A. The Transferee is
acquiring the Transferred Certificates for its own account
or for the account of a Qualified Institutional Buyer, and
understands that the
B-2-1
Transferred Certificates may be resold, pledged, or
transferred only 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.
2. The Transferee has been furnished with all
information regarding (a) the Transferred Certificates and
payments on them, (b) the nature and performance of the
Mortgage Loans, (c) the Indenture, (d) the Agreement, and
(e) any credit enhancement mechanism associated with the
Transferred Certificates, that it has requested.
3. The Transferee represents that it is not an
employee benefit plan that is subject to the Employee
Retirement Income Security Act of 1974, as amended, nor a
plan subject to Section 4975 of the Internal Revenue Code
of 1986, as amended, nor is it acting on behalf of or
investing plan assets of any such employee benefit plan.
4. The Transferee agrees to be bound by the
Agreement.
Very truly yours,
------------------------------
(Transferee)
------------------------------
By:
---------------------------
Name:
-------------------------
Title:
------------------------
▇-▇-▇
▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ ▇
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the Certificates being transferred (the "Transferred
Certificates") as described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned or invested on a discretionary basis
$________________________ in securities (other than the excluded securities
referred to below and otherwise calculated in accordance with Rule 144A) as of
the end of the Transferee's most recent fiscal year and (ii) the Transferee
satisfies the criteria in the category marked below.
/ / Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association, or similar institution),
Massachusetts or similar statutory trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
/ / Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S. 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, as of a date not more than
16 months preceding the date of sale of the Certificates in the case
of a U.S. bank, and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
/ / Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association, or similar institution that is supervised and
examined by a state or federal authority having supervision over
those 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, a copy of which is attached, as of a
date not more than 16 months preceding the date of sale of the
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale for a foreign
savings and loan association or equivalent institution.
/ / Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
/ / Insurance Company. The Transferee 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 that is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory, or the District of Columbia.
/ / Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
/ / Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
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3. The term "securities" does not include (i) securities of issuers that
are affiliated with the Transferee, (ii) securities that are part of an unsold
allotment to or subscription by the Transferee, if the Transferee 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. For purposes of determining the aggregate amount of securities owned or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
or invested on a discretionary basis by the Transferee, the Transferee used
the cost of the securities to the Transferee, unless the Transferee reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining the aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if the
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if
the investments of the subsidiaries are managed under the Transferee's
direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the
Transferee is not itself a reporting company under the Securities Exchange Act
of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Transferee may be in reliance on Rule
144A.
/ / / / Will the Transferee be purchasing the Transferred Owner Trust
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, the
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of the third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until that notice is given, the Transferee's purchase of the
Transferred Certificates will constitute a reaffirmation of this certification
as of the date of the purchase. In addition, if the Transferee is a bank or
savings and loan as provided above, the Transferee agrees that it will furnish
to such parties any updated annual financial statements that become available
on or before the date of the purchase, promptly after they become available.
-------------------------------
Print Name of Transferee
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
Date:
--------------------------
ANNEX 2 TO EXHIBIT B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the Certificates being transferred (the "Transferred
Certificates") as described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"), because
the Transferee is part of a Family of Investment Companies, is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned or invested on a discretionary basis, or the
Transferee'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 Transferee's most recent fiscal year. For purposes of determining
the amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of the securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies,
as the case may be, reports its securities holdings in its financial
statements on the basis of their market value, and no current information with
respect to the cost of those securities has been published, in which case the
securities of the entity were valued at market.
/ / The Transferee owned or invested on a discretionary basis
$_____________________ in securities (other than the excluded
securities referred to below and otherwise calculated in accordance
with Rule 144A) as of the end of the Transferee's most recent fiscal
year.
/ / The Transferee is part of a "Family of Investment Companies" that
owned in the aggregate $________________ in securities (other than
the excluded securities referred to below and otherwise calculated
in accordance with Rule 144A) as of the end of the Transferee's most
recent fiscal year.
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 Transferee or are part of the
Transferee'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. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee,
or owned by the Transferee's Family of Investment Companies, the securities
referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to
the Transferee will be in reliance on Rule 144A.
/ / / / Will the Transferee be purchasing the Transferred Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, the
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of the third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until that
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of the purchase.
-------------------------------
Print Name of Transferee or Adviser
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
IF AN ADVISER:
-------------------------------
Print Name of Transferee
Date:
--------------------------
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-------------------------------------------
-------------------------------------------
-------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of the Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Issuer to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver the
Certificate to the following address:
-------------------------------------------.
Dated:
--------------------------
-------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to:
------------------------------------
------------------------------------ ,
------------------------------------ ,
for the account of____________________________ , account number _____________,
or, if mailed by check, to_________________________ . Applicable statements
should be mailed to_____________________________ ,___________________________
information is provided by____________________________________ , the assignee
named above, or____________________________________ , as its agent.
8