EXHIBIT 99.5
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Exhibit 99.5
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CWABS, INC.
Depositor
WILMINGTON TRUST COMPANY
Owner Trustee
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TRUST AGREEMENT
Dated as of September 24, 2004
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CWABS REVOLVING HOME EQUITY LOAN TRUST, SERIES 2004-I
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Table of Contents
Page
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ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.01. Definitions. ........................................................1
Section 1.02. Other Terms. ........................................................3
Section 1.03. Rules of Construction. ..............................................3
ARTICLE II
ORGANIZATION
Section 2.01. Name. ...............................................................5
Section 2.02. Office. .............................................................5
Section 2.03. Purposes and Powers. ................................................5
Section 2.04. Appointment of Owner Trustee. .......................................5
Section 2.05. Initial Capital Contribution of Assets. .............................6
Section 2.06. Declaration of Trust. ...............................................6
Section 2.07. Liability of the Transferor. ........................................6
Section 2.08. Title to Trust Property. ............................................6
Section 2.09. Location of Trust. ..................................................6
Section 2.10. Representations and Warranties of Depositor. ........................6
ARTICLE III
THE TRANSFEROR CERTIFICATES
Section 3.01. Initial Beneficiary of Trust. .......................................8
Section 3.02. Issuance of the Transferor Certificates. ............................8
Section 3.03. Authentication of Transferor Certificates. ..........................8
Section 3.04. Registration of and Transfer and Exchange of Transferor
Certificates. .......................................................9
Section 3.05. Mutilated, Destroyed, Lost, or Stolen Transferor Certificate. ......10
Section 3.06. Maintenance of Office or Agency. ...................................10
Section 3.07. Persons Considered Certificateholders. .............................10
Section 3.08. Access to List of Certificateholders' Names and Addresses. .........10
Section 3.09. Appointment of Certificate Paying Agent. ...........................10
Section 3.10. Restrictions on Transfer; Legends. .................................11
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders Regarding Certain Matters. ......14
Section 4.02. Action by Certificateholders Regarding Certain Matters. ............15
Section 4.03. Action by Certificateholders Regarding Bankruptcy. .................15
Section 4.04. Restrictions on Certificateholder's Power. .........................15
Section 4.05. Majority Interest. .................................................15
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Application of Trust Funds. ........................................15
Section 5.02. Method of Payment. .................................................16
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. .................................................16
Section 6.02. General Duties. ....................................................16
Section 6.03. Action on Instruction. .............................................17
Section 6.04. No Duties Except as Specified in the Trust Agreement or in
Instructions. ......................................................18
Section 6.05. No Action Except Under Specified Documents or Instructions. ........18
Section 6.06. Restrictions. ......................................................18
ARTICLE VII
CONCERNING OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties. ...................................19
Section 7.02. Furnishing Documents. ..............................................20
Section 7.03. Representations and Warranties. ....................................20
Section 7.04. Reliance; Advice of Counsel. .......................................20
Section 7.05. Not Acting in Individual Capacity. .................................21
Section 7.06. Owner Trustee Not Liable for Transferor Certificates or Payment
Obligations. .......................................................21
Section 7.07. Owner Trustee May Own Notes. .......................................22
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees. ..............................................22
Section 8.02. Reimbursement and Indemnification. .................................22
Section 8.03. Payments to Owner Trustee. .........................................23
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement. ....................................23
Section 9.02. Credit Enhancer's Rights Regarding Actions, Proceedings, or
Investigations. ....................................................24
Section 9.03. Rights of the Credit Enhancer. .....................................25
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Resignation or Removal of Owner Trustee. ...........................26
Section 10.02. Successor Owner Trustee. ...........................................27
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Section 10.03. Merger or Consolidation of Owner Trustee. ..........................27
Section 10.04. Appointment of Co-Trustee or Separate Trustee. .....................27
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments. ........................................29
Section 11.02. Limitations on Rights of Others. ...................................29
Section 11.03. Notices. ...........................................................29
Section 11.04. Severability. ......................................................30
Section 11.05. Separate Counterparts. .............................................30
Section 11.06. Successors and Assigns. ............................................30
Section 11.07. Nonpetition Covenant. ..............................................31
Section 11.08. No Recourse. .......................................................31
Section 11.09. Headings. ..........................................................31
Section 11.10. GOVERNING LAW. .....................................................31
Section 11.11. Rule 144A Information. .............................................31
Section 11.12. Third-Party Beneficiary. ...........................................31
EXHIBITS
EXHIBIT A Form of Certificate of Trust of Revolving
Home Equity Loan Trust, Series 2004-I.......................................A-1
EXHIBIT B Form of Series 2004-I Transferor Certificates...............................B-1
EXHIBIT C Form of Representation Letter...............................................C-1
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This TRUST AGREEMENT, dated as of September 24, 2004, between CWABS,
INC., a Delaware corporation, as Depositor, and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as Owner Trustee,
WITNESSETH:
WHEREAS, the parties to this Trust Agreement will create the CWABS
Revolving Home Equity Loan Trust, Series 2004-I and provide for, among other
things, the issuance of the Transferor Certificates;
NOW, THEREFORE, the parties to this Trust Agreement agree as follows.
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.01. Definitions.
Unless the context requires a different meaning, capitalized terms are
used in this Trust Agreement as defined below.
"Administration Agreement" means the Administration Agreement, dated as
of September 29, 2004, entered into between the Administrator, the Indenture
Trustee and the Trust.
"Administrator" means Countrywide Home Loans, Inc. and its permitted
successors and assigns.
"Agreement" or "Trust Agreement" means this Trust Agreement.
"Assets" means all assets and property of the Trust pursuant to the Sale
And Servicing Agreement.
"Certificate of Trust" means the Certificate of Trust in the form of
Exhibit A to be filed for the Trust pursuant to Section 3810(a) of the
Statutory Trust Statute.
"Certificateholder" means the registered holder of a Transferor
Certificate issued in connection with the creation of the Trust.
"Code" means the Internal Revenue Code of 1986.
"Closing Date" means September 29, 2004.
"Credit Enhancer" means MBIA Insurance Corporation and its permitted
successors and assigns.
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"ERISA" means the Employee Retirement Income Security Act of 1974.
"Expenses" has the meaning assigned to it in Section 8.02.
"Indemnified Parties" has the meaning assigned to it in Section 8.02.
"Indenture" means the indenture, dated as of September 29, 2004 entered
into between the Trust, and the Indenture Trustee, specifying the principal
terms pursuant to which the Notes are issued.
"Indenture Trustee" means JPMorgan Chase Bank and its permitted
successors and assigns.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other), preference, participation
interest, priority, or other security agreement or preferential arrangement of
any kind or nature whatsoever resulting in an encumbrance against real or
personal property of a person, including any conditional sale or other title
retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any Financing
Statement under the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or comparable law of any jurisdiction to evidence any of the
foregoing.
"Mortgage Loan" has the meaning given to it in the Sale and Servicing
Agreement.
"Noteholder" means a holder of one or more Notes.
"Notes" means the notes issued by the Trust pursuant to the Indenture.
"Opinion of Counsel" means a written opinion of counsel acceptable to the
Owner Trustee and the counsel may be in-house counsel for the Depositor, its
Affiliates, or the Transferor, which opinion shall be addressed, in addition
to any other party specified in this Trust Agreement, to the Credit Enhancer.
"Rating Agency Condition" has the meaning assigned to it in the
Indenture.
"Responsible Officer" means, any officer within the corporate trust
department of the Owner Trustees, including any vice president, assistant vice
president, managing director, treasurer, assistant treasurer, trust officer,
or any other officer of the Owner Trustees who customarily performs functions
similar to those performed by the persons who at the time are those officers,
respectively, or to whom any corporate trust matter is referred because of the
officer's knowledge of and familiarity with the particular subject and who has
direct responsibility for the administration of this Agreement or the
Indenture.
"Sale and Servicing Agreement" means the sale and servicing agreement,
dated as of September 29, 2004, entered into between the Depositor,
Countrywide Home Loans, Inc., as
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sponsor and master servicer, the Trust and the Indenture Trustee, pursuant to
which, among other things, the Depositor transfers all its interests in the
Mortgage Loans to the Trust.
"Statutory Trust Statute" means the Delaware Statutory Trust Act (12 Del.
Code, ss. 3801 et seq.).
"Transaction Documents" means collectively the Indenture and any other
document designated in the Indenture as a "Transaction Document" for the
purposes of this Agreement.
"Transferor" means the holder of a Transferor Certificate of the Trust.
"Transferor Certificate" means the certificate representing the interest
in the Trust that is the right to receive any amounts available for
distribution that are not allocable to the Notes and that is executed and
authenticated in accordance with this Trust Agreement substantially in the
form attached to this Trust Agreement as Exhibit B.
"Transferor Certificate Register" means the register maintained by the
Indenture Trustee pursuant to Section 3.04.
"Trust" means the trust formed pursuant to this Trust Agreement.
"Trust Agreement" means this Trust Agreement.
Section 1.02. Other Terms.
Defined terms include, as appropriate, all genders and the plural as well
as the singular.
Section 1.03. Rules of Construction.
Except as otherwise expressly provided in this Trust Agreement or unless
the context otherwise clearly requires:
(a) References to designated articles, sections, subsections, exhibits,
and other subdivisions of this Trust Agreement, such as "Section 3.01(B),"
refer to the designated article, section, subsection, exhibit, or other
subdivision of this Trust Agreement as a whole and to all subdivisions of the
designated article, section, subsection, exhibit, or other subdivision. The
words "herein," "hereof," "hereto," "hereunder," and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
article, section, exhibit, or other subdivision of this Trust Agreement.
(b) Any term that relates to a document or a statute, rule, or regulation
includes any amendments, modifications, supplements, or any other changes that
may have occurred since the document, statute, rule, or regulation came into
being, including changes that occur after the date of this Trust Agreement.
(c) Any party may execute any of the requirements under this Trust
Agreement either directly or through others, and the right to cause something
to be done rather than doing it
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directly shall be implicit in every requirement under this Trust Agreement.
Unless a provision is restricted as to time or limited as to frequency, all
provisions under this Trust Agreement are implicitly available from time to
time.
(d) The term "including" and all its variations mean "including but not
limited to." Except when used in conjunction with the word "either," the word
"or" is always used inclusively (for example, the phrase "A or B" means "A or
B or both," not "either A or B but not both").
(e) A reference to "a thing" or "any of a thing" does not imply the
existence or occurrence of the thing referred to even though not followed by
"if any," and "any of a thing" is any and all of it. A reference to the plural
of anything as to which there could be either one or more than one does not
imply the existence of more than one (for instance, the phrase "the obligors
on a note" means "the obligor or obligors on a note"). "Until something
occurs" does not imply that it must occur, and will not be modified by the
word "unless." The word "due" and the word "payable" are each used in the
sense that the stated time for payment has past. The word "accrued" is used in
its accounting sense, i.e., an amount paid is no longer accrued. In the
calculation of amounts of things, differences and sums may generally result in
negative numbers, but when the calculation of the excess of one thing over
another results in zero or a negative number, the calculation is disregarded
and an "excess" does not exist. Portions of things may be expressed as
fractions or percentages interchangeably.
(f) All accounting terms used in an accounting context and not otherwise
defined, and accounting terms partly defined in this Trust Agreement, to the
extent not completely defined, shall be construed in accordance with generally
accepted accounting principles in the United States. To the extent that the
definitions of accounting terms in this Trust Agreement are inconsistent with
their meanings under generally accepted accounting principles, the definitions
contained in this Trust Agreement shall control. Capitalized terms used in
this Trust Agreement without definition that are defined in the Uniform
Commercial Code are used in this Trust Agreement as defined in the Uniform
Commercial Code.
(g) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the word "from" or "beginning"
means "from and including," the word "after" means "from but excluding," the
words "to" or "until" mean "to but excluding," and the word "through" means
"to and including." Likewise, in setting deadlines or other periods, "by"
means "on or before." The words "preceding," "following," and words of similar
import, mean immediately preceding or following. References to a month or a
year refer to calendar months and calendar years.
(h) Any reference to the enforceability of any agreement against a party
means that it is enforceable, subject as to enforcement against the party, to
applicable bankruptcy, insolvency, reorganization, and other similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
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ARTICLE II
ORGANIZATION
Section 2.01. Name.
This Trust shall be known as "CWABS Revolving Home Equity Loan Trust,
Series 2004-I," in which name the Owner Trustee may issue Notes and otherwise
conduct the business of the Trust.
Section 2.02. Office.
The office of the Trust shall be in care of the Owner Trustee at "▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration" or at any other address in the State of
Delaware that the Owner Trustee may designate by written notice to the
Depositor.
Section 2.03. Purposes and Powers.
(a) The Trust is authorized to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture;
(ii) to issue the Transferor Certificates pursuant to this Trust
Agreement;
(iii) to Grant the Assets to the Indenture Trustee pursuant to the
Indenture;
(iv) to distribute to the Transferor pursuant to this Trust
Agreement the Transaction Documents, any portion of the Assets released
from the Lien of the Indenture and any other amounts provided for in the
Sale and Servicing Agreement;
(v) to enter into and perform its obligations under the Transaction
Documents to which it becomes a party;
(vi) to engage in those activities, including entering into
agreements, that are appropriate to accomplish any of the foregoing or
are incidental to them; and
(vii) subject to compliance with the Transaction Documents, to
engage in any other activities appropriate to conserve the Assets and
make distributions to any Transferor and the holders of Notes.
The Trust shall not engage in any activity other than in connection with
the foregoing activities or other than as required or authorized by this Trust
Agreement or the other Transaction Documents.
Section 2.04. Appointment of Owner Trustee.
The Depositor appoints the Owner Trustee as trustee of the Trust
effective as of the date of this Trust Agreement to have all the rights and
obligations in this Trust Agreement.
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Section 2.05. Initial Capital Contribution of Assets.
The Depositor hereby remits to the Owner Trustee the sum of $1. The Owner
Trustee hereby acknowledges receipt in trust from the Depositor of the
foregoing contribution. The Depositor shall pay organizational expenses of the
Trust as they may arise or shall promptly reimburse the Owner Trustee on
request for any such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust.
The Owner Trustee hereby declares that it will hold the Assets on the
terms of this Agreement, for the benefit of the Transferor, subject to the
obligations of the Trust under the Transaction Documents. The Trust is a
statutory trust under the Statutory Trust Statute and this Trust Agreement is
the governing instrument of the statutory trust. The Owner Trustee shall have
all rights and obligations in this Trust Agreement and in the Statutory Trust
Statute for accomplishing the purposes of the Trust. The Owner Trustee shall
file with the Secretary of State of the State of Delaware a Certificate of
Trust of the Trust.
Section 2.07. Liability of the Transferor.
Except to the extent otherwise provided in this Trust Agreement or in the
other Transaction Documents, the Transferor shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the general corporation law of the
State of Delaware.
Section 2.08. Title to Trust Property.
Legal title to all the Assets shall be vested in the Trust as a separate
legal entity except where applicable law in any jurisdiction requires title to
any part of the Assets to be vested in a trustee, in which case title shall be
vested in the Owner Trustee or any co-trustee or separate trustee, as the case
may be.
Section 2.09. Location of Trust.
The Trust will be located in Delaware and administered in Delaware. Any
bank accounts maintained by the Owner Trustee on behalf of the Trust shall be
located in Delaware or Illinois. The Trust shall not have any employees in any
State other than Delaware. Nothing in this Trust Agreement shall restrict the
Owner Trustee from having employees within or without Delaware. Payments will
be received by the Trust only in Delaware, Illinois, or California, and
payments will be made by the Trust only from Delaware or Illinois.
Section 2.10. Representations and Warranties of Depositor.
The Depositor represents and warrants to the Owner Trustee as of the date
of this Agreement, and as to any Transaction Document, as of its date that:
(a) Organization and Good Standing. The Depositor is a corporation duly
organized and validly existing under the laws of Delaware, with full power and
authority to own its properties and to conduct its business as presently owned
or conducted and to execute, deliver, and perform this Agreement and any other
document related to this Agreement to which it is a party and to perform its
obligations as contemplated by them.
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(b) Due Qualification. The Depositor is duly qualified to do business as
a Delaware corporation in good standing and has obtained all necessary
licenses and approvals in each jurisdiction in which failure to so qualify or
to obtain required licenses or approvals would have a material adverse effect
on its ability to perform its obligations under this Agreement and the
Transaction Documents to which the Depositor is a party.
(c) Due Authorization; Enforceability. The Depositor has full power and
authority to execute, deliver, and perform this Agreement and the Transaction
Documents to which it is a party and to carry out their respective terms. The
Depositor has full power and authority to sell and assign the Assets. The
execution, delivery, and performance by the Depositor of this Agreement and
the Transaction Documents to which the Depositor is a party have been duly
authorized by the Depositor by all necessary action. This Agreement and the
Transaction Documents executed by the Depositor have been duly executed and
delivered and constitute the valid and legally binding obligations of the
Depositor enforceable against the Depositor in accordance with their terms.
(d) No Conflict. The Depositor's execution and delivery of this Agreement
and the Transaction Documents to which the Depositor is a party, performance
of the transactions contemplated by them, and fulfillment of their terms
applicable to the Depositor do not conflict with any requirements of law
applicable to the Depositor or conflict with, result in any breach of any of
the provisions of, or with or without notice or lapse of time constitute a
default under, any indenture, contract, or other instrument to which the
Depositor is a party or by which it or its properties are bound.
(e) Consents. No authorization, consent, license, order, or approval of
or registration or declaration with, any governmental authority is required to
be obtained, effected, or given by the Depositor in connection with the
execution and delivery of this Agreement or the Transaction Documents by the
Depositor or its performance of its obligations under any of them or the
transactions contemplated by any of them, or the transfer of the Assets to the
Trust.
(f) Litigation. No actions, proceedings, or investigations are pending
or, to the best of the Depositor's knowledge, threatened against the Depositor
before any governmental authority having jurisdiction over the Depositor
(i) asserting the invalidity of this Agreement or any other
Transaction Documents to which the Depositor is a party,
(ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any other Transaction Documents to
which the Depositor is a party,
(iii) seeking any determination that might materially and adversely
affect the performance by the Depositor of its obligations under, or the
validity or enforceability of, this Agreement or any other Transaction
Documents to which the Depositor is a party, or
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(iv) seeking to affect adversely the income tax attributes of the
Trust under the United States federal or New York State or Delaware
income tax law.
ARTICLE III
THE TRANSFEROR CERTIFICATES
Section 3.01. Initial Beneficiary of Trust.
Upon the formation of the Trust by the contribution by the Depositor
pursuant to Section 2.05 and until the issuance of the Transferor
Certificates, the Depositor shall be the sole beneficiary of the Trust.
Section 3.02. Issuance of the Transferor Certificates.
(a) On the Closing Date, the Trust will issue one class of Certificates
designated as the "Revolving Home Equity Loan Asset Backed Transferor
Certificates, Series 2004-I" (the "Transferor Certificates") pursuant to the
provisions of this Trust Agreement and deliver them to the order of the
Depositor when authenticated.
(b) The Transferor Certificates will be issued in definitive, fully
registered form and will be substantially in the form of Exhibit B. The
Transferor Certificates will, on the Closing Date, be executed, authenticated,
and delivered by the Owner Trustee to the order of the Depositor concurrently
with the transfer of the Mortgage Loans to the Trust.
(c) The Transferor Certificates will be executed by manual or facsimile
signature on behalf of the Owner Trustee by an authorized officer. Transferor
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time their signatures were affixed, authorized to sign on behalf
of the Owner Trustee shall bind the Trust, notwithstanding that any of them
have ceased to be so authorized before the authentication and delivery of the
Transferor Certificates or did not hold such offices at the date of the
Transferor Certificate. The Transferor Certificates will not be book-entry
certificates.
Section 3.03. Authentication of Transferor Certificates.
No Transferor Certificate shall be entitled to any benefit under this
Trust Agreement, or be valid for any purpose, unless the Transferor
Certificate is manually authenticated by the Owner Trustee substantially in
the form provided in this Agreement, and the authentication on any Transferor
Certificate will be conclusive evidence, and the only evidence, that the
Transferor Certificate has been duly authenticated and delivered. All
Transferor Certificates shall be dated the date of their authentication.
The Trust initially appoints the Indenture Trustee to act as the
authentication agent of the Owner Trustee. All references to the
authentication of the Transferor Certificates shall be considered to include
the authentication agent.
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Section 3.04. Registration of and Transfer and Exchange of Transferor
Certificates.
The Trust shall keep a Transferor certificate register (the "Certificate
Register") in which, subject to any reasonable regulations it may prescribe,
the Trust shall provide for the registration of the Transferor Certificates
and, to the extent permitted by this Trust Agreement, of transfers and
exchanges of the Transferor Certificates. The certificate registrar (the
"Certificate Registrar") is initially the Indenture Trustee.
Whenever any Transferor Certificate is surrendered for registration of
transfer at the office or agency of the Certificate Registrar maintained for
that purpose and the conditions of this Section have been satisfied, the Owner
Trustee, on behalf of the Trust, shall execute, authenticate, and deliver in
the name of the designated transferees, one or more new Transferor
Certificates in authorized denominations of a like aggregate amount dated the
date of authentication by the Owner Trustee or any authenticating agent.
At the option of its Holder, each Transferor Certificate may be exchanged
for other Transferor Certificates, in authorized denominations of a like
aggregate amount, by surrendering the Transferor Certificate to be exchanged
at the office or agency of the Certificate Registrar maintained for that
purpose.
Every Transferor Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a fully completed representation
letter, substantially in the form of Exhibit C, delivered at the expense of
the Certificateholder, and duly executed by the Certificateholder or an
attorney-in-fact for the Certificateholder duly authorized in writing. Each
Holder of a Transferor Certificate must satisfy the transfer restrictions in
the representation letter. Each Transferor Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Owner Trustee in accordance with its customary practice.
No service charge shall be made for the registration of transfer or
exchange of any Transferor Certificate, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any transfer or
exchange of the Transferor Certificate.
The preceding provisions of this Section notwithstanding, the Owner
Trustee need not transfer or exchange, and the Certificate Registrar need not
register transfers or exchanges, of Transferor Certificates during the fifteen
days preceding the due date for any payment on the Transferor Certificates.
The Certificate Registrar shall at all times maintain an office or agency
where Transferor Certificates may be surrendered for registration of transfer
or exchange.
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Section 3.05. Mutilated, Destroyed, Lost, or Stolen Transferor
Certificate.
If (a) the Owner Trustee receives evidence to its satisfaction of the
destruction, loss, or theft of a Transferor Certificate and the Owner Trustee
receives the security or indemnity it requires to hold it harmless or (b) any
mutilated Transferor Certificate is surrendered to the Owner Trustee, then in
the absence of notice that the Transferor Certificate has been acquired by a
Protected Purchaser, the Owner Trustee shall execute, authenticate, and
deliver, in exchange for or in lieu of the mutilated, destroyed, lost, or
stolen Transferor Certificate, a new Transferor Certificate of like tenor and
denomination. The Owner Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed on the issuance
of the new Transferor Certificate under this Section. Any duplicate Transferor
Certificate issued pursuant to this Section shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not
the lost, stolen, or destroyed Transferor Certificate is found.
Section 3.06. Maintenance of Office or Agency.
The Trust shall maintain an office or agency where notices and demands on
the Trust regarding the Transferor Certificates and the Transaction Documents
may be served. The Trust initially designates Indenture Trustee as its office
for those purposes. The Owner Trustee shall give prompt written notice to the
Certificateholders of the location, and any change in the location, of this
office or agency. If the Trust ever fails to maintain this office or agency,
then presentations, surrenders, notices, and demands may be made or served at
the Corporate Trust Office of the Owner Trustee.
Section 3.07. Persons Considered Certificateholders.
Before due presentation of a Transferor Certificate for registration of
transfer, the Owner Trustee, the Certificate Registrar, and any paying agent
for the Transferor Certificates shall treat the person in whose name any
Transferor Certificate is registered in the Certificate Register as the owner
of the Transferor Certificate for the purpose of receiving distributions
pursuant to Section 5.02 and for all other purposes whatsoever, and none of
the Owner Trustee, the Certificate Registrar, and any paying agent for the
Transferor Certificates shall be bound by any notice to the contrary.
Section 3.08. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish to the Depositor or the Owner
Trustee a list of the names and addresses of the Transferor Certificateholders
as of the most recent Record Date within fifteen days after receipt by the
Certificate Registrar of a written request for it from the Depositor or the
Owner Trustee.
Section 3.09. Appointment of Certificate Paying Agent.
The paying agent for the Transferor Certificates shall make distributions
to the holder of each Transferor Certificate pursuant to this Trust Agreement
and shall report the amounts of those distributions to the Owner Trustee. The
Administrator, on behalf of the Trust, may remove the Certificate Paying Agent
if the Administrator determines in its sole discretion that the Certificate
Paying Agent has failed to perform its obligations under this Agreement in any
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material respect. The Certificate Paying Agent initially shall be the
Indenture Trustee. The Certificate Paying Agent shall be permitted to resign
as Certificate Paying Agent on thirty days' written notice to the Owner
Trustee. If the Indenture Trustee is no longer the Certificate Paying Agent,
the Administrator shall appoint a bank or trust company as successor to act as
Certificate Paying Agent. The Administrator shall cause the successor
Certificate Paying Agent or any additional Certificate Paying Agent appointed
by the Administrator to execute and deliver to the Trust an instrument in
which the successor Certificate Paying Agent or additional Certificate Paying
Agent agrees with the Trust that, as Certificate Paying Agent, the successor
Certificate Paying Agent or additional Certificate Paying Agent will hold any
sums held by it for payment to the Certificateholders in trust for the benefit
of the Certificateholders entitled to them until those sums are paid to the
appropriate Certificateholders. The Certificate Paying Agent shall return all
unclaimed funds to the Trust, and upon removal of a Certificate Paying Agent,
the Certificate Paying Agent shall also return all funds in its possession to
the Trust. Any reference in this Trust Agreement to the Certificate Paying
Agent shall include any co-Certificate Paying Agent unless the context
requires otherwise.
Section 3.10. Restrictions on Transfer; Legends.
(a) The 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 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
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 Transferor Certificate desiring to effect a transfer
shall indemnify 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.
(c) No transfer of an interest in a Transferor Certificate will be made
unless the Owner Trustee has received either:
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(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 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 this 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 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 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 this Agreement and
the other 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 3.10 and that all the conditions in this Section 3.10 have been
complied with, and an Opinion of Counsel stating that all the conditions
in this Section 3.10 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 characterization
of the Notes after the transfer as debt for federal and applicable
State income tax purposes,
(B) the transfer will not result in 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
Notes or any person who is the beneficial owner of a book-entry
Note, and
(D) the transfer will not result in the Trust being
characterized as a taxable mortgage pool as defined in Section
7701(i) of the Code;
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(v) all filings and other actions necessary to continue the
perfection of the interest of the Trust in the Mortgage Loans and the
other Assets has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed
pursuant to Section 3.11.
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 (without regard to the Policy, as defined in the Indenture)
has been satisfied taking that into account.
(e) Each 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 3.10 of the Trust Agreement related to CWABS Revolving Home Equity
Loan Trust, Series 2004-I. 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 3.10(c) of the Trust Agreement related
to CWABS Revolving Home Equity Loan Trust, Series 2004-I. 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 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 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.
(g) Notwithstanding anything in this Trust Agreement to the contrary, the
Depositor, without the consent of any Noteholder or Certificateholder, may
amend this Section 3.10 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 the outstanding Notes and Transferor
Certificates for federal or applicable state income tax purposes,
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(ii) the characterization of the Trust as an entity that is not a
publicly traded partnership or other business entity 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.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders Regarding Certain
Matters.
(a) The Owner Trustee shall give the Certificateholders thirty days'
written notice before taking any of the following actions on behalf of the
Trust. Within thirty days of the date of the notice the Certificateholders may
instruct the Owner Trustee in writing not to take the proposed action or may
provide alternative direction. Thirty days after giving the notice, if the
Owner Trustee has not been instructed otherwise by the holder of the
Transferor Certificate, then the Owner Trustee may:
(i) initiate any claim or lawsuit by the Trust, or compromise any
action, claim, or lawsuit brought by or against the Trust;
(ii) file an amendment to the Certificate of Trust;
(iii) amend the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(iv) amend the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required, but
the amendment materially adversely affects the interests of the
Certificateholders;
(v) amend the Administration Agreement; and
(vi) appoint a successor Certificate Paying Agent, Certificate
Registrar, Administrator, or Indenture Trustee under the Indenture, or
consent to the assignment by the Transfer Agent and Registrar,
Administrator, or Indenture Trustee of its obligations under the
Indenture.
If the Trust has more than one holder of its Transferor Certificates,
then the Holders may only give instructions that are agreed to by the majority
of the Holders (based on the holders' percentage ownership of the entire
Transferor Certificate Interest).
(b) Notwithstanding Section 4.01(a), without prior notice to the
Certificateholders the Owner Trustee may, on behalf of the Trust:
(i) initiate a claim or lawsuit by the Trust for collection of
Assets;
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(ii) file an amendment to the Certificate of Trust whenever the
amendment is required by the Statutory Trust Statute; or
(iii) amend the Administration Agreement to cure any ambiguity or
mistake or effect any other amendment that would not materially adversely
affect the interests of the Certificateholders.
The foregoing provisions of this Section 4.01 do not create a duty on the
part of the Owner Trustee to take any of the actions described above.
Section 4.02. Action by Certificateholders Regarding Certain Matters.
Except when directed by the Certificateholders and with the prior written
consent of the Credit Enhancer in the case of (a), (b), or (c) below, the
Owner Trustee may not (a) remove the Administrator pursuant to Section 7(c) of
the Administration Agreement, (b) appoint a successor Administrator pursuant
to Section 7(e) of the Administration Agreement, (c) remove the Master
Servicer under the Sale and Servicing Agreement, or (d) except as expressly
provided in the Indenture, sell Assets after the termination of the Indenture.
Section 4.03. Action by Certificateholders Regarding Bankruptcy.
Except upon delivery to the Owner Trustee by each Certificateholder of a
certificate certifying that the Certificateholder reasonably believes that the
Trust is insolvent, the Owner Trustee may not commence a voluntary proceeding
in bankruptcy relating to the Trust.
Section 4.04. Restrictions on Certificateholder's Power.
A Certificateholder shall not direct the Owner Trustee to take or to
refrain from taking any action if that action or inaction would be contrary to
any obligation of the Trust, or the Owner Trustee under this Trust Agreement
or any of the other Transaction Documents or would be contrary to Section
2.03. The Owner Trustee shall not be obligated to follow that direction if
given.
Section 4.05. Majority Interest.
Except as expressly provided in this Trust Agreement, any action that may
be taken by the Certificateholders under this Trust Agreement shall be taken
by Certificateholders by a majority of the holders voting per capita.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Application of Trust Funds.
(a) On each Distribution Date, the Certificate Paying Agent shall
distribute to the Transferor Certificateholders pro rata (based on each
holder's percentage ownership of the entire Transferor Certificate interest)
any funds made available to it under Section 8.03 of the Indenture.
Distributions to each Transferor Certificateholder shall be made by wire
transfer of
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immediately available funds to the Transferor Certificateholder's account at a
bank or other entity having appropriate facilities. If appropriate notice of
wiring instructions is not given by any Transferor Certificateholder, then
distribution to that Transferor Certificateholder shall be by check mailed to
the Transferor Certificateholder at its address as it appears on the
Certificate Register.
(b) If any withholding tax is imposed on the Trust's payment (or
allocations of income) to the Certificateholders, the withholding tax shall
reduce the amount otherwise distributable to the Certificateholders in
accordance with this Section. The Certificate Paying Agent is authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Trust. This authorization shall not prevent the Certificate Paying
Agent from contesting any tax in appropriate proceedings and withholding
payment of the tax pending the outcome of the proceedings if permitted by law.
The amount of any withholding tax imposed on any distributions shall be
treated as cash distributed to the Certificateholder at the time it is
withheld by the Trust and remitted to the appropriate taxing authority. If
withholding tax might be payable on a distribution to a non-U.S.
Certificateholder, the Certificate Paying Agent may in its sole discretion
withhold an appropriate amount to cover that possibility.
Section 5.02. Method of Payment.
Distributions required to be made to a Certificateholder on any Payment
Date shall be made by wire transfer of immediately available funds to the
account of the Certificateholder at a bank or other entity having appropriate
facilities if the Certificateholder so notifies the Certificate Registrar in
writing at least five Business Days before the Payment Date. If appropriate
notice is not given by a Certificateholder, then distributions to that
Certificateholder shall be by check mailed to it at its address in the
Certificate Register.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority.
The Owner Trustee is authorized and directed to execute and deliver the
Transaction Documents to which the Trust is to be a party and each other
document contemplated by the Transaction Documents in such form as the
Depositor shall approve, as evidenced conclusively by the Owner Trustee's
execution of it. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions permitted or
required of the Trust pursuant to the Transaction Documents. The Owner Trustee
is further authorized to take any action the Administrator recommends
regarding the Transaction Documents.
Section 6.02. General Duties.
The Owner Trustee shall discharge all of its responsibilities pursuant to
this Agreement and the other Transaction Documents to which the Trust is a
party and administer the Trust in
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the interest of the Certificateholders, subject to this Agreement and the
other Transaction Documents. The Owner Trustee shall be considered to have
discharged its obligations under this Trust Agreement and the other
Transaction Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee or the Trust under this Agreement or any other Transaction
Document. The Owner Trustee shall not be liable for the failure of the
Administrator to carry out its obligations under the Administration Agreement
or the other Transaction Documents.
The Administrator shall prepare and file any federal, state, or local
income and franchise tax return for the Trust as well as any other applicable
return and apply for a taxpayer identification number on behalf of the Trust.
If the Trust is required pursuant to an audit or administrative proceeding or
change in applicable regulations to file federal, state, or local tax returns,
the Administrator shall prepare and file any tax returns required to be filed
by the Trust. The Owner Trustee shall promptly sign the returns and deliver
the returns after signature to the Administrator and the returns shall be
filed by the Administrator.
Section 6.03. Action on Instruction.
(a) Subject to Article IV and in accordance with the Transaction
Documents, the Certificateholders may by written instruction direct the Owner
Trustee in the management of the Trust. Such direction may be exercised at any
time by written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee is not required to take any action under this
Agreement or any other Transaction Document if the Owner Trustee reasonably
determines, or is advised by counsel, that the action (i) is likely to result
in liability on the part of the Owner Trustee, (ii) is contrary to the terms
of this Agreement or of any other Transaction Document, or (iii) is contrary
to law.
(c) Whenever the Owner Trustee is (i) unable to decide between
alternative courses of action under this Agreement or any other Transaction
Document, (ii) unsure about the application of any provision of this Agreement
or any other Transaction Document or it appears to be in conflict with any
other applicable provision, or (iii) if this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete about the
course of action that the Owner Trustee is required to take regarding a
particular set of facts, the Owner Trustee may give appropriate notice to the
Certificateholders requesting instruction and, if the Owner Trustee in good
faith follows any instructions it receives, the Owner Trustee shall not be
liable to the Certificateholders on account of its action or inaction. If the
Owner Trustee has not received appropriate instruction within ten days of the
notice (or within any shorter period necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking any action not
inconsistent with this Agreement or the other Transaction Documents that it
deems to be in the best interests of the Certificateholders, and shall have no
liability to the Certificateholders for its action or inaction.
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(d) The Owner Trustee may enter into any amendment of any Transaction
Document as to which the Rating Agency Condition is satisfied (without regard
to the Policy, as defined in the Indenture), and when so requested by the
Certificateholders, the Owner Trustee shall enter into any amendment of any
Transaction Documents:
(i) that does not impose further obligations or liabilities on the
Owner Trustee,
(ii) that the Credit Enhancer has consented to, and
(iii) as to which either the Rating Agency Condition is satisfied or
Holders of not less than 662/3% of the aggregate Outstanding Amount of
the Notes have consented.
Section 6.04. No Duties Except as Specified in the Trust Agreement or in
Instructions.
The Owner Trustee shall not have any duty to manage, make any payment on,
register, record, sell, dispose of, or otherwise deal with any Assets, or to
otherwise take or refrain from taking any action under any document
contemplated by this Agreement or any other Transaction Document to which the
Trust is a party, except as expressly provided by this Agreement or in any
written instruction received by the Owner Trustee under Section 6.03. No
implied duties or obligations shall be read into this Agreement or any other
Transaction Document against the Owner Trustee. The Owner Trustee shall have
no responsibility for filing any Financing or Continuation Statement in any
public office at any time or otherwise to perfect or maintain the perfection
of any security interest or lien granted to it under the Sale and Servicing
Agreement or to prepare or file any filing with the Securities and Exchange
Commission for the Trust or to record this Agreement or any other Transaction
Document. Wilmington Trust Company, in its individual capacity, shall, at its
own cost and expense, promptly take all action necessary to discharge any
liens on any part of any Assets resulting from actions by, or claims against,
Wilmington Trust Company, in its individual capacity, that are not related to
the ownership or the administration of the Assets.
Section 6.05. No Action Except Under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of, or
otherwise deal with any part of any Assets, except as provided in this
Agreement, pursuant to the other relevant Transaction Documents, and in
accordance with any instruction delivered to the Owner Trustee pursuant to
Section 6.03.
Section 6.06. Restrictions.
The Owner Trustee shall not take any action that is inconsistent with the
stated purposes of the Trust in Section 2.03. The Certificateholders, by their
acceptance of their Transferor Certificates, agree not to direct the Owner
Trustee to take action that would violate the Agreement or any other
Transaction Document.
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ARTICLE VII
CONCERNING OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties.
The Owner Trustee accepts the trusts created by this Trust Agreement and
agrees to perform its duties under it. The Owner Trustee also agrees to
disburse all moneys actually received by it constituting part of any Assets on
the terms of the Transaction Documents. The Owner Trustee shall not be
accountable under this Agreement or any other Transaction Document under any
circumstances except (i) for its own willful misconduct or gross negligence or
(ii) for the inaccuracy of any representation or warranty contained in Section
7.03. In particular, but not in limitation (and subject to the exceptions in
the preceding sentence):
(a) The Owner Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Owner Trustee.
(b) The Owner Trustee shall not be liable regarding any action taken or
omitted to be taken by it in accordance with instructions from the
Administrator or the Certificateholders.
(c) No provision of this Agreement or any other Transaction Document
shall require the Owner Trustee to expend or risk its funds or otherwise incur
any financial liability in the performance of any of its rights under this
Agreement or any other Transaction Document if the Owner Trustee has
reasonable grounds for believing that repayment of those funds or adequate
indemnity against the risk or liability is not reasonably assured to it.
(d) Under no circumstances shall the Owner Trustee be liable for
indebtedness under any of the Transaction Documents, including the principal
and interest on any of Notes.
(e) The Owner Trustee shall not be responsible for the validity or
sufficiency of this Trust Agreement or for its due execution by the Depositor
or for the form, character, genuineness, sufficiency, value, or validity of
any of the Assets, or for the validity or sufficiency of the Transaction
Documents, other than the certificate of authentication on the Transferor
Certificates.
(f) The Owner Trustee shall not be liable to any Noteholder or
Certificateholder, other than as expressly provided for in this Agreement or
expressly agreed to in the other Transaction Documents.
(g) The Owner Trustee shall not be liable for the default or misconduct
of the Depositor, the Indenture Trustee, the Administrator, or the Master
Servicer under any of the Transaction Documents or otherwise. The Owner
Trustee shall have no duty to perform the obligations of the Trust or the
Owner Trustee or any other person under this Agreement or the other
Transaction Documents that are required to be performed by the Administrator
under the Administration Agreement, the Indenture Trustee under the Indenture,
the Master Servicer
19
under the Sale and Servicing Agreement, or the Depositor under the Sale and
Servicing Agreement, or any other person under any other Transaction Document.
(h) The Owner Trustee need not exercise any of the rights or powers
vested in it by this Agreement, or to institute, conduct, or defend any
litigation under this Agreement or any other Transaction Document or
otherwise, at the request, order, or direction of the Certificateholders,
unless one or more Certificateholders have offered to the Owner Trustee
security or indemnity satisfactory to it against the costs and liabilities
that may be incurred by the Owner Trustee thereby.
(i) The right of the Owner Trustee to perform any discretionary act in
this Agreement or in any other Transaction Document shall not be construed as
a duty, and the Owner Trustee shall not be answerable other than for its gross
negligence or willful misconduct in the performance of any discretionary act.
Section 7.02. Furnishing Documents.
The Owner Trustee shall furnish to the Certificateholders, promptly on
written request, copies of all reports, notices, requests, demands,
certificates, financial statements, and any other instruments furnished to the
Owner Trustee under the Transaction Documents.
Section 7.03. Representations and Warranties.
Wilmington Trust Company hereby represents and warrants to the Depositor
that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver, and perform its obligations
under this 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 and delivery by it of this Trust Agreement, nor
the consummation by it of the transactions contemplated by this Trust
Agreement, nor compliance by it with any of the provisions of this Trust
Agreement will contravene any federal or Delaware law, governmental rule, or
regulation governing the banking or trust powers of the Owner Trustee, or any
judgment or order binding on it, or constitute a default under its charter
documents or bylaws.
Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall not be liable to anyone in acting under this
Trust Agreement on any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond, or other document or paper
believed by it to be genuine or believed by it to be signed by the proper
parties. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any corporate party as
conclusive
20
evidence that the resolution has been duly adopted and that it is in full
force and effect. As to any fact or matter the method of determination of
which is not specifically prescribed in this Agreement, the Owner Trustee may
for all purposes of this Agreement conclusively rely on a certificate, signed
by a Responsible Officer of the relevant party, as to the fact or matter, and
that certificate shall constitute full protection to the Owner Trustee for any
action taken or omitted to be taken by it in good faith in reliance on it.
(b) In the exercise or administration of the trusts under this Agreement
and in the performance of its obligations under this Agreement or the other
Transaction Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys under agreements entered into with any of them, and the
Owner Trustee shall not be liable for the conduct or misconduct of those
agents or attorneys if they were selected by the Owner Trustee with reasonable
care and (ii) may consult with counsel, accountants, and other skilled persons
it selects with reasonable care. The Owner Trustee shall not be liable for
anything done, suffered, or omitted in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants, or other persons.
Section 7.05. Not Acting in Individual Capacity.
Except as provided in this Article, (i) in acting in the capacity of
Owner Trustee pursuant to the trusts created by this Agreement, Wilmington
Trust Company acts solely as Owner Trustee under this Agreement and not in its
individual capacity, and (ii) all persons having any claim against the Owner
Trustee under this Agreement or any other Transaction Document shall look only
to the Assets for payment or satisfaction of that claim.
Section 7.06. Owner Trustee Not Liable for Transferor Certificates or
Payment Obligations.
The recitals contained in this Agreement and in the Transferor
Certificates (other than the signature and authentication of the Owner Trustee
on the Transferor Certificates) shall be taken as the statements of the
Depositor, and the Owner Trustee assumes no responsibility for their
correctness. The Owner Trustee makes no representations as to the validity or
sufficiency of this Agreement, of any other Transaction Document, of the
Transferor Certificates (other than the signature and authentication of the
Owner Trustee on the Transferor Certificates), of any Mortgage Loan or related
documents. The Owner Trustee shall not have any responsibility for
(i) the legality, validity, and enforceability of any Mortgage Loan,
or
(ii) the perfection and priority of any security interest created in
any Mortgage Loan or the maintenance of that perfection and priority, or
(iii) the sufficiency of the Assets or their ability to generate the
payments to be distributed under this Agreement or the Noteholders under
the Indenture, or
(iv) the performance or enforcement of any Mortgage Loan, or
21
(v) the compliance by the Depositor or the Master Servicer with any
warranty or representation made under any Transaction Document or in any
related document, or
(vi) any action of the Administrator, the Indenture Trustee, or the
Master Servicer or any subservicer taken in the name of the Owner
Trustee.
Section 7.07. Owner Trustee May Own Notes.
Wilmington Trust Company in its individual or any other capacity may
become the owner or pledgee of the Notes and may deal with the Depositor, the
Administrator, the Indenture Trustee, and the Servicer in banking transactions
with the same rights as it would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees.
The Owner Trustee shall receive, as compensation from the Sponsor for its
services under this Agreement, fees that have been separately agreed on in a
fee agreement between the Sponsor and the Owner Trustee.
Section 8.02. Reimbursement and Indemnification.
(a) The Owner Trustee shall be entitled to be reimbursed for its
reasonable expenses (including reasonable attorneys' fees) incurred in the
performance of its duties as Owner Trustee hereunder, first, out of amounts on
deposit in the Collection Account prior to payments on the Transferor
Certificates, second, to the extent not paid pursuant to clause first within
60 days of first being incurred, by the Transferor and third, to the extent
not paid pursuant to clause first and second within 60 days of first being
incurred, by Countrywide Home Loans, Inc., except, in both cases, to the
extent that such expenses arise out of or result from (i) the Owner Trustee's
own willful misconduct, bad faith or gross negligence, (ii) the inaccuracy of
any of the Owner Trustee's representations or warranties contained in Section
7.03 of this Agreement, (iii) taxes based on or measured by any fees,
commissions or compensation received by the Owner Trustee for acting as such
in connection with any of the transactions contemplated by this Agreement or
any other Transaction Document, or (iv) the Owner Trustee's failure to use
reasonable care to receive, manage and disburse moneys actually received by it
in accordance with the terms hereof.
(b) The Owner Trustee is hereby indemnified and held harmless from and
against any and all liabilities, obligations, indemnity obligations, losses
(excluding loss of anticipated profits), damages, claims, actions, suits,
judgments, out-of-pocket costs, expenses and disbursements (including legal
and consultants' fees and expenses) and taxes of any kind and nature
whatsoever (collectively, the "Liabilities") which may be imposed on, incurred
by or asserted at any time against it in any way relating to or arising out of
the Trust Estate, any of the
22
properties included therein, the administration of the Trust Estate or any
action or inaction of the Owner Trustee hereunder or under the Transaction
Documents, except to the extent that such Liabilities arise out of or result
from (i) the Owner Trustee's own willful misconduct, bad faith or gross
negligence, (ii) the inaccuracy of any of the Owner Trustee's representations
or warranties contained in Section 7.03 of this Agreement, (iii) taxes based
on or measured by any fees, commissions or compensation received by the Owner
Trustee for acting as such in connection with any of the transactions
contemplated by this Agreement or any other Transaction Document, or (iv) the
Owner Trustee's failure to use reasonable care to receive, manage and disburse
moneys actually received by it in accordance with the terms hereof. Any
amounts payable to the Owner Trustee on account of the indemnities set forth
in this Section 8.02 shall be payable, first, out of amounts on deposit in the
Collection Account prior to payments on the Transferor Certificates, second,
to the extent not paid pursuant to clause first within 60 days of first being
incurred, by the Transferor and third, to the extent not paid pursuant to
clause first and second within 60 days of first being incurred, by Countrywide
Home Loans, Inc. The indemnities contained in this Section 8.02 shall survive
the termination of this Agreement and the removal or resignation of the Owner
Trustee hereunder.
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.
Section 8.03. Payments to Owner Trustee.
Any amounts paid to the Owner Trustee pursuant to this Article shall not
be a part of the Assets immediately after their payment. All amounts then due
to the Owner Trustee from the Trust, the Depositor, or the Master Servicer
under any Transaction Document shall be paid in full before any payments to
the Depositor or any holder of a Transferor Certificate.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
(a) The Trust shall dissolve when the Trust has made the final
distribution of all moneys or other property or proceeds of all Assets in
accordance with the terms of the Transaction Documents, and Article V. The
bankruptcy, liquidation, or dissolution of any Certificateholder shall not (x)
terminate this Agreement or the Trust, (y) entitle that Certificateholder's
legal representatives to obtain an accounting or to take any action in any
court for a partition or winding up of any part of the Trust or the Assets, or
(z) otherwise affect the rights and obligations of the parties to this
Agreement.
(b) Except as provided in Section 9.01(a), neither the Depositor nor the
Certificateholders may dissolve, revoke, or terminate the Trust.
23
(c) On the winding up of the Trust and payment of all liabilities of the
Trust in accordance with Section 3808 of the Statutory Trust Statute, the
Owner Trustee shall cancel the Certificate of Trust by filing a certificate of
cancellation with the Secretary of State of the State of Delaware in
accordance with the provisions of the Statutory Trust Statute. The Owner
Trustee may rely on the directions of the Administrator with respect to
winding up the Trust. Thereupon, this Trust Agreement (other than Article
VIII) and the Trust shall terminate.
Section 9.02. Credit Enhancer's Rights Regarding Actions, Proceedings, or
Investigations.
Until the Notes have been paid in full, all amounts owed to the Credit
Enhancer have been paid in full, the Insurance Agreement has terminated and
the Policy has been returned to the Credit Enhancer for cancellation, the
following provisions shall apply:
(a) Notwithstanding anything in this Trust Agreement or in the other
Transaction Documents to the contrary, the Credit Enhancer shall have the
right to participate in, to direct the enforcement or defense of, and, at the
Credit Enhancer's sole option, to institute or assume the defense of, any
action, proceeding, or investigation (other than foreclosure proceedings
involving the Mortgage Loans and other actions constituting ordinary servicing
activities) that could adversely affect the Trust or the rights or obligations
of the Credit Enhancer under this Trust Agreement or under the Policy,
including any insolvency or bankruptcy proceeding in respect of the Trust.
Following notice to the Owner Trustee and the Indenture Trustee, the Credit
Enhancer shall have exclusive right to determine, in its sole discretion, the
actions necessary to preserve and protect the Collateral, the Issuer, and the
Trust. All costs and expenses of the Credit Enhancer in connection with such
action, proceeding, or investigation, including any judgment or settlement
entered into affecting the Credit Enhancer or the Credit Enhancer's interests,
shall be included in reimbursement amount owed to the Credit Enhance under
Section 8.03(a)(vii) of the Indenture.
(b) In connection with any action, proceeding, or investigation (other
than foreclosure proceedings involving the Mortgage Loans and other actions
constituting ordinary servicing activities) that could reasonably be expected
to adversely affect the Collateral, the Issuer, the Trust, or the rights or
obligations of the Credit Enhancer under this Trust Agreement or under the
Policy or the Transaction Documents, including any insolvency or bankruptcy
proceeding in respect of the Master Servicer, the Sponsor, the Depositor, the
Issuer, the Trust, or any affiliate of any of them, the Owner Trustee agrees
to cooperate with, and to take any action directed by, the Credit Enhancer,
including entering into agreements and settlements as directed the Credit
Enhancer, in its sole discretion, without the consent of any Series 2004-I
Transferor Certificateholder or any Noteholder.
(c) The Owner Trustee agrees to provide to the Credit Enhancer prompt
written notice of any action, proceeding, or investigation (other than
foreclosure proceedings involving the Mortgage Loans and other actions
constituting ordinary servicing activities) that names the Issuer, the Trust,
or the Owner Trustee as a party or that could adversely affect the Collateral,
the Issuer, the Trust, or the rights or obligations of the Credit Enhancer
under this Trust
24
Agreement or under the Policy or the Transaction Documents, including any
insolvency or bankruptcy proceeding in respect of the Master Servicer, the
Sponsor, the Depositor, the Issuer, the Trust, or any affiliate of any of
them.
(d) Notwithstanding anything in this Trust Agreement or in any of the
other Transaction Documents to the contrary, the Owner Trustee shall not,
without the Credit Enhancer's prior consent or unless directed by the Credit
Enhancer, undertake or join any litigation or agree to any settlement of any
action, proceeding, or investigation affecting the Collateral, the Issuer, the
Trust, or the rights or obligations of the Credit Enhancer under this Trust
Agreement or under the Policy or the Transaction Documents (other than
foreclosure proceedings involving the Mortgage Loans and other actions
constituting ordinary servicing activities).
(e) Each Transferor Certificateholder, by acceptance of its Transferor
Certificate, and the Owner Trustee agree that Credit Enhancer shall have the
rights provided in this Section, which are in addition to any rights of the
Credit Enhancer pursuant to the other provisions of the Transaction Documents,
that the rights provided in this Section may be exercised by the Credit
Enhancer, in its sole discretion, without the need for the consent or approval
of any Transferor Certificateholder or the Owner Trustee, notwithstanding any
other provision in this Trust Agreement or in any of the other Transaction
Documents, and that nothing in this Section shall be deemed to be an
obligation of the Credit Enhancer to exercise any of the rights provided for
in this Trust Agreement.
(f) The Owner Trustee undertakes to perform or observe only such of the
covenants and obligations of the Ownder Trustee as are expressly set forth in
this Trust Agreement, and no implied covenants or obligations with respect to
the Credit Enhancer shall be read into this Trust Agreement or the other
Transaction Documents against the Owner Trustee. The Owner Trustee shall not
be deemed to owe any fiduciary duty to the Credit Enhancer, and shall not be
liable in any event to the Credit Enhancer as a result of the performance of
its express obligations under this Trust Agreement. The Owner Trustee shall
not be obligated to take any action at the request or direction of the Credit
Enhancer unless the Owner Trustee is furnished with security or
indemnification satisfactory to it against any loss, liability, or expense in
connection with the action.
Section 9.03. Rights of the Credit Enhancer.
(a) Before taking any of the actions specified in Section 4.01(a), the
Owner Trustee shall give the Credit Enhancer written notice at the same time
that notice is given to the Certificateholders.
(b) Before taking any of the actions specified in Section 4.01(b), the
Owner Trustee shall give the Credit Enhancer written notice of the proposed
action.
25
(c) Upon the occurrence of an event described in Section 6.03(c), the
Owner Trustee shall give the Credit Enhancer written notice at the same time
that notice is given to the Certificateholders.
(d) Any successor Owner Trustee appointed by the Administrator pursuant
to Section 10.01 shall be appointed only with the prior written consent of the
Credit Enhancer.
(e) The Owner Trustee shall mail notice of any merger or consolidation or
other action described in Section 10.03 to the Credit Enhancer.
(f) Any co-trustee or separate trustee appointed pursuant to Section
10.04 shall be appointed only with the prior written consent of the Credit
Enhancer.
(g) Promptly after the execution of any amendment or consent, the Owner
Trustee shall furnish a copy of the amendment or consent to the Credit
Enhancer.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Resignation or Removal of Owner Trustee.
The Owner Trustee may at any time resign and be discharged from the
trusts created by this Trust Agreement by giving written notice of resignation
to the Administrator, and the Depositor. When it receives a notice of
resignation, the Administrator shall promptly appoint a successor Owner
Trustee in writing delivered to the resigning Owner Trustee and to the
successor Owner Trustee. If no successor Owner Trustee has been so appointed
and assumed trusteeship within thirty days after the notice of resignation,
the resigning Owner Trustee may petition any court of competent jurisdiction
for the appointment of a successor Owner Trustee.
The Administrator may remove the Owner Trustee if at any time the Owner
Trustee is legally unable to act, or an Insolvency Event occurs with respect
to the Owner Trustee. If the Administrator removes the Owner Trustee under the
authority of the preceding sentence, the Administrator shall promptly appoint
a successor Owner Trustee in writing delivered to the outgoing Owner Trustee
and to the successor Owner Trustee, and shall pay all fees and expenses owed
to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee shall not become effective until acceptance of
appointment by the successor Owner Trustee pursuant to Section 10.02 and
payment of all fees and expenses of the outgoing Owner Trustee. The
Administrator shall provide notice of any resignation or removal of the Owner
Trustee to each of the Rating Agencies, the Depositor, and the Credit
Enhancer.
26
Section 10.02. Successor Owner Trustee.
Any successor Owner Trustee appointed pursuant to Section 10.01 shall
execute and deliver to the Administrator, the Depositor, and to the
predecessor Owner Trustee an instrument accepting appointment as trustee under
this Trust Agreement, and thereupon the resignation or removal of the
predecessor Owner Trustee shall become effective. The successor Owner Trustee
shall become fully vested with all the rights and obligations of its
predecessor under this Trust Agreement, with like effect as if originally
named as Owner Trustee without any further act, deed, or conveyance. The
predecessor Owner Trustee shall promptly deliver to the successor Owner
Trustee all documents, statements, and monies held by it under this Agreement.
The Administrator and the predecessor Owner Trustee shall execute and deliver
any instruments and do anything else for fully and certainly vesting and
confirming in the successor Owner Trustee all rights and obligations under
this Agreement.
When a successor Owner Trustee accepts its appointment pursuant to this
Section, the Administrator shall mail notice of the change in trustee to the
Certificateholders, the Depositor, the Indenture Trustee, the Noteholders, the
Credit Enhancer, and the Rating Agencies. If the Administrator fails to mail
that notice within ten days after acceptance of appointment by the successor
Owner Trustee, the successor Owner Trustee shall mail that notice at the
expense of the Administrator.
The successor Owner Trustee shall file an amendment to the Certificate of
Trust with the Secretary of State of the State of Delaware identifying the
name and principal place of business in the State of Delaware of the successor
Owner Trustee.
Section 10.03. Merger or Consolidation of Owner Trustee.
Any person into which the Owner Trustee may be merged or converted or
with which it may be consolidated, or any person resulting from any merger,
conversion, or consolidation to which the Owner Trustee is a party, or any
person succeeding to all or substantially all of the corporate trust business
of the Owner Trustee, shall be the successor of the Owner Trustee under this
Trust Agreement without the execution or filing of any instrument or any
further act on the part of any of the parties to this Trust Agreement,
anything to the contrary notwithstanding. The Owner Trustee shall mail notice
of the merger or consolidation or other action to each Rating Agency and the
Credit Enhancer.
Section 10.04. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Assets may at any time be located, the Administrator and the Owner
Trustee acting jointly shall execute and deliver all instruments to appoint
persons approved by the Administrator, and Owner Trustee to act as co-trustee,
jointly with the Owner Trustee, or as separate trustee, of all or any part of
the Assets, and to vest in that person, in that capacity, such title to the
Assets or any part thereof and, subject to the other provisions of this
Section, such rights and obligations as the Administrator and the Owner
Trustee consider appropriate. If the Administrator has not joined in the
appointment within fifteen days after the receipt by it of a request so to do,
the Owner
27
Trustee alone may make the appointment. No notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.02.
Each separate trustee and co-trustee shall be appointed and act subject
to the following provisions and conditions:
(a) All rights and obligations conferred or imposed on the Owner Trustee
shall be conferred on and exercised or performed by the Owner Trustee and the
separate trustee or co-trustee jointly (the separate trustee or co-trustee is
not authorized to act separately without the Owner Trustee joining in the
act), except to the extent that under applicable law the Owner Trustee is
incompetent or unqualified to perform the acts, in which case those rights and
obligations (including the holding of title to the Assets or any portion of
them in that jurisdiction) shall be exercised and performed singly by the
separate trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(b) No trustee under this Agreement shall be personally liable for any
act or omission of any other trustee under this Agreement; and
(c) The Administrator and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request, or other writing given to the Owner Trustee shall be
considered to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to the conditions of
this Article. Each separate trustee and co-trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided in the instrument of appointment. Each
instrument of appointment shall be filed with the Owner Trustee and a copy of
it given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act with respect to 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, and obligations shall vest in and be exercised by
the Owner Trustee, to the extent permitted by law, without the appointment of
a new or successor co-trustee or separate trustee.
28
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments.
(a) This Trust Agreement may be amended in any way by the Depositor and
the Owner Trustee, with the consent of any affected Certificateholder and the
Credit Enhancer, but only if the Rating Agency Condition is satisfied and the
amendment would not cause any adverse tax event for any Noteholder.
Promptly after the execution of any amendment or consent, the Owner
Trustee shall furnish a copy of the amendment or consent to the
Certificateholders, the Credit Enhancer, the Indenture Trustee, and each
Rating Agency.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause its filing with the Secretary of State of
the State of Delaware.
The Owner Trustee may, but shall not be obligated to, enter into any
amendment that affects the Owner Trustee's own rights or obligations under
this Agreement or otherwise.
In connection with the execution of any amendment to this Trust
Agreement, the Certificate of Trust, or any amendment of any other agreement
to which the Trust is a party, the Owner Trustee shall be entitled to receive
and conclusively rely upon an Opinion of Counsel to the effect that the
amendment is authorized or permitted by this Trust Agreement and the
Transaction Documents.
(b) Notwithstanding anything to the contrary in this Trust Agreement,
before the issuance of the Notes the Certificateholders may amend this Trust
Agreement without the consent of any other party. Promptly after the execution
of any amendment pursuant to this paragraph, the Certificateholders shall
furnish a copy of the amendment to the Owner Trustee and the Credit Enhancer.
Section 11.02. Limitations on Rights of Others.
The provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Certificateholders, the Administrator, and, to the
extent expressly provided in this Trust Agreement, the Indenture Trustee, the
Credit Enhancer and the Noteholders, and nothing in this Trust Agreement,
whether express or implied, shall be construed to give to any other person any
legal or equitable interest in the Assets or under this Trust Agreement.
Section 11.03. Notices.
(a) All notices shall be in writing and shall be considered given upon
receipt by the intended recipient,
if to the Owner Trustee, addressed to the Corporate Trust Office;
29
if to the Depositor, addressed to
CWABS, Inc.,
c/o Wilmington Trust Company,
▇▇▇▇▇▇ Square North,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration,
telephone number (▇▇▇) ▇▇▇-▇▇▇▇,
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇;
if to the Credit Enhancer, addressed to
MBIA Insurance Corporation,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Insured Portfolio Management-Structured Finance
("IPM-SF") (CWABS Revolving Home Equity Loan Trust,
Series 2004-I)
telephone number (▇▇▇) ▇▇▇-▇▇▇▇
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each party, at any other address designated by it
in a written notice to each other party.
(b) Any notice required or permitted to be given to the
Certificateholders shall be given by first-class mail, postage prepaid, at the
addresses of the Certificateholders. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder receives the notice.
Section 11.04. Severability.
Any provision of this Trust Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the
extent of the prohibition or unenforceability without invalidating the
remaining provisions hereof, and that prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable the provision in any
other jurisdiction.
Section 11.05. Separate Counterparts.
This Trust Agreement may be executed by the parties to this Trust
Agreement in separate counterparts, each of which when so executed and
delivered shall be an original, but all the counterparts shall together
constitute but one instrument.
Section 11.06. Successors and Assigns.
All covenants and agreements contained in this Trust Agreement shall be
binding on, and inure to the benefit of, each of the Depositor and its
permitted assignees, the Owner Trustee and its successors, and each
Certificateholder and any of its successors, all as provided in this
30
Trust Agreement. Any request, notice, direction, consent, waiver or other
instrument or action by any Certificateholder shall bind its successors.
Section 11.07. Nonpetition Covenant.
Notwithstanding any prior termination of this Agreement, the Depositor
and the Owner Trustee, by entering into this Agreement, and each
Certificateholder, by accepting a Transferor Certificate, agree that they
shall not, before the date that is one year and one day after the termination
of the Agreement, file or participate in the filing of any petition against
the Trust that could cause the Trust to incur an Insolvency Event. Nothing in
this Trust Agreement shall prohibit the Owner Trustee from participating in or
filing proofs of claim in any such proceeding instituted by any other person.
Section 11.08. No Recourse.
Each Certificateholder by accepting a Transferor Certificate acknowledges
that the Transferor Certificate represents the beneficial interest in the
Trust only and does not represent interests in or obligations of the
Depositor, the Servicer, the Administrator, the Owner Trustee, the Indenture
Trustee, or any Affiliate of any of them and no recourse may be had against
those parties or their assets, except as may be expressly stated or
contemplated in this Agreement, the other Transaction Documents, or the
Transferor Certificates.
Section 11.09. Headings.
The headings of the various Articles and Sections in this Trust Agreement
are for convenience of reference only and shall not define or limit any of the
provisions of this Trust Agreement.
Section 11.10. GOVERNING LAW.
THIS TRUST AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS PROVISIONS
THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
Section 11.11. Rule 144A Information.
As long as any of the securities of this Trust are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, the
Administrator on behalf of the Trust shall provide to any Noteholder or
Certificateholder and to any prospective purchaser from any of them designated
by any of them on the request of the Noteholder, Certificateholder, or
prospective purchaser, any information required to be provided the holder or
prospective purchaser to satisfy the conditions of Rule 144A(d)(4) under the
Securities Act.
Section 11.12. Third-Party Beneficiary.
The Credit Enhancer is a third-party beneficiary of this Trust Agreement
and is entitled to the rights and benefits given to it under this Trust
Agreement as if it were a party to this Trust Agreement.
31
IN WITNESS WHEREOF, the parties to this Trust Agreement have caused this
Trust Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
CWABS, INC.
Depositor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
WILMINGTON TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
COUNTRYWIDE HOME LOANS, INC.
Master Servicer
With respect to Article VIII only
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
32
EXHIBIT A
FORM OF CERTIFICATE OF TRUST OF
CWABS REVOLVING HOME EQUITY LOAN TRUST, SERIES 2004-I
This Certificate of Trust of CWABS Revolving Home Equity Loan Trust,
Series 2004-I (the "Trust"), dated September 24, 2004, is being duly executed
and filed by Wilmington Trust Company, a Delaware banking corporation, as
trustee, to form a statutory trust under the Delaware Statutory Trust Act (12
Del. Code, ss. 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is CWABS Revolving
Home Equity Loan Trust, Series 2004-I.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company,
[________________], [_________], Delaware _____, Attention:
[________________].
3. Effective Date. This Certificate of Trust shall be effective upon its
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY,
Address: not in its individual capacity,
▇▇▇▇▇▇ Square North but solely as owner trustee
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
By: ____________________________
Name:
Title:
A-1
EXHIBIT B
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 3.10 of the Trust Agreement related to CWABS Revolving Home Equity
Loan Trust, Series 2004-I. 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 3.10(c) of the Trust Agreement related
to CWABS Revolving Home Equity Loan Trust, Series 2004-I. 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.
B-1
Date of Trust Agreement : [______], 2004
Cut-off Date : [______], 2004
Percentage Interest : 100%
Certificate No. : [_______]
First Distribution Date :
REVOLVING HOME EQUITY LOAN ASSET BACKED TRANSFEROR CERTIFICATE
CWABS REVOLVING HOME EQUITY LOAN TRUST, SERIES 2004-I
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 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 CWABS Revolving Home Equity Loan Trust, Series 2004-I (the
"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 Trust was formed pursuant
to the Trust Agreement, dated as of September 24, 2004 (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-I, 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);
(ii) property that secured a Mortgage Loan that is acquired by
foreclosure or deed in lieu of foreclosure;
B-2
(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 "Assets"). A first priority security interest in all the 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 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 proposed transferee of this Certificate
shall not become its registered Holder, unless the conditions in Section 4.05
of the Agreement are satisfied.
B-3
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 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 Trust will be dissolved when the final
distribution from the Assets is made resulting in the Trust having no further
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 Trust.
B-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: [______], 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
B-5
EXHIBIT C
FORM OF TRANSFEROR INVESTMENT LETTER
FOR TRANSFEROR CERTIFICATES
Date:
CWABS, Inc.
as Depositor
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ________________
Wilmington Trust Company, as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Re: CWABS Revolving Home Equity Loan Trust, Series 2004-I
Revolving Home Equity Loan Asset Backed Securities,
Series 2004-I 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 Trust Agreement, dated as of
September 24, 2004, between CWABS, Inc., as depositor, and Wilmington Trust
Company, as owner trustee. 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 general advertising or in any other manner, or (e)
taken any other action that (in the case of any
C-1
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.
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
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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.
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: ____________________________
C-3
FORM OF TRANSFEREE INVESTMENT LETTER
FOR TRANSFEROR CERTIFICATES
Date:
CWABS, Inc.
as Depositor
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ________________
Wilmington Trust Company, as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Re: CWABS Revolving Home Equity Loan Trust, Series 2004-I,
Revolving Home Equity Loan Asset Backed Securities,
Series 2004-I 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 Trust Agreement, dated as of September 24, 2004, between CWABS, Inc., as
depositor, and Wilmington Trust Company, as owner trustee. 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 Transferred Certificates may
be resold, pledged, or transferred only
B-2-1
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: ___________________________
▇-▇-▇
▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ C
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.
3. / / 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.)
______________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________ 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
Yes No Trust 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 C
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.
B-1
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
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 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
B-2
By: _________________________
Name: _________________________
Title: _________________________IF AN
ADVISER:
_________________________
Print Name of Transferee
Date: _________________________
B-3
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.
B-4