Exhibit 99.1
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5
EXECUTION COPY
INDYMAC MBS, INC.,
Depositor
GREENWICH CAPITAL MARKETS, INC.,
Underlying Certificate Seller
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee, Securities Intermediary and Bank
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TRUST AGREEMENT
Dated as of August 25, 2004
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IndyMac MBS, Inc.
Residential Asset Securitization Trust 2004-R2
Mortgage Pass-Through Certificates, Series 2004-R2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.................................................5
ARTICLE II
CONVEYANCE OF THE DEPOSITED UNDERLYING CERTIFICATES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of the Deposited Underlying Certificates..........20
Section 2.02 Acceptance by Trustee........................................21
Section 2.03 Representations and Warranties of the Underlying Certificate
Seller.......................................................21
Section 2.04 Representations and Warranties of the Depositor..............23
Section 2.05 Issuance of Certificates.....................................24
Section 2.06 REMIC Matters................................................25
Section 2.07 Presentation for Transfer....................................25
ARTICLE III
ADMINISTRATION OF THE TRUST FUND; PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01 Defaults by the Underlying Trust.............................26
Section 3.02 Distribution Account and Securities Account..................26
Section 3.03 Permitted Withdrawals From the Distribution Account..........27
Section 3.04 Distributions................................................28
Section 3.05 Reserved.....................................................29
Section 3.06 Allocation of Realized Losses................................29
Section 3.07 Determination of Pass-Through Rates for LIBOR Certificates...29
i
Section 3.08 Statements to Certificateholders.............................31
Section 3.09 Reports of the Trustee; Distribution Account.................32
Section 3.10 Access to Certain Documentation and Information..............32
ARTICLE IV
THE CERTIFICATES
Section 4.01 The Certificates.............................................33
Section 4.02 Certificate Register; Registration of Transfer and Exchange of
Certificates.................................................33
Section 4.03 Mutilated, Destroyed, Lost or Stolen Certificates............37
Section 4.04 Persons Deemed Owners........................................37
Section 4.05 Access to List of Certificateholders' Names and Addresses....38
Section 4.06 Maintenance of Office or Agency..............................38
ARTICLE V
CONCERNING THE TRUSTEE
Section 5.01 Duties of Trustee............................................39
Section 5.02 Certain Matters Affecting the Trustee........................39
Section 5.03 Trustee Not Liable for Certificates or Deposited Underlying
Certificates.................................................41
Section 5.04 Trustee May Own Certificates.................................41
Section 5.05 Trustee's Fees and Expenses..................................41
Section 5.06 Indemnification of the Trustee...............................42
Section 5.07 Eligibility Requirements for Trustee.........................42
Section 5.08 Resignation and Removal of Trustee...........................42
Section 5.09 Successor Trustee............................................43
Section 5.10 Merger or Consolidation of Trustee...........................44
Section 5.11 Appointment of Co-Trustee or Separate Trustee................44
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Section 5.12 Tax Matters..................................................45
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liability of the Depositor...................................49
Section 6.02 Merger, Consolidation or Conversion of the Depositor.........49
Section 6.03 Limitation on Liability of the Depositor and Others..........49
ARTICLE VII
TERMINATION
Section 7.01 Termination..................................................51
Section 7.02 Final Distribution on the Certificates.......................51
Section 7.03 Additional Termination Requirements..........................52
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01 Amendment....................................................53
Section 8.02 Action Under and Conflicts With the Underlying Agreement.....54
Section 8.03 Recordation of Agreement.....................................54
Section 8.04 Certain REMIC Matters........................................55
Section 8.05 Limitation on Rights of Certificateholders...................55
Section 8.06 Governing Law................................................55
Section 8.07 Notices......................................................56
Section 8.08 Severability of Provisions...................................56
Section 8.09 Successors and Assigns.......................................56
Section 8.10 Article and Section Headings.................................56
Section 8.11 Certificates Nonassessable and Fully Paid....................57
Section 8.12 Protection of Assets.........................................57
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Schedule I List of Deposited Underlying Certificates and Underlying
Agreements
Schedule II Planned Balance Schedule
Exhibit A-1 - Form of Xxxxxxxx-Xxxxx Certification.......................A-1-1
Exhibit A-2 - Form of Trustee Certification..............................A-2-1
Exhibit B-1 - Form of Class A Certificate (other than a Notional Amount
Certificate)...............................................B-1-1
Exhibit B-2 - Form of Notional Amount Certificate........................B-2-1
Exhibit C - [Reserved].....................................................C-1
Exhibit D - Form of Residual Certificate...................................D-1
Exhibit E - Form of Reverse of Certificate.................................E-1
Exhibit F - Form of Transferor Affidavit...................................F-1
Exhibit G - Form of Transfer Affidavit for the Class A-R Certificate ......G-1
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TRUST AGREEMENT, dated as of August 25, by and among IndyMac MBS, Inc.,
as depositor (the "Depositor"), Greenwich Capital Markets, Inc., as underlying
certificate seller (the "Underlying Certificate Seller"), and Deutsche Bank
National Trust Company, as trustee (the "Trustee") and in its capacities as
Securities Intermediary and as Bank (each as defined below).
W I T N E S S E T H:
WHEREAS, the Depositor, the Underlying Certificate Seller and the Trustee
desire to enter into a trust agreement dated as of the date hereof (the "Trust
Agreement"); and
WHEREAS, the Underlying Certificate Seller has transferred its interests
in and to the Deposited Underlying Certificates (as defined herein) to the
Depositor pursuant to a xxxx of sale executed by the Underlying Certificate
Seller in favor of the Depositor;
NOW THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. As provided herein, the Trustee
will elect that the Trust Fund be treated for federal income tax purposes as
comprising two real estate mortgage investment conduits (each a "REMIC" or, in
the alternative, the "Subsidiary REMIC" and the "Master REMIC," respectively).
The Subsidiary REMIC will hold as assets all property of the Trust Fund and
will be evidenced by (i) the Subsidiary REMIC Regular Interests, which will be
uncertificated and will represent the "REMIC regular interests" in the
Subsidiary REMIC, and (ii) the Class SR-A-R Interest, which will represent the
"REMIC residual interest" in the Subsidiary REMIC. The Master REMIC will hold
as assets the Subsidiary REMIC Regular Interests and will be evidenced by the
Certificates, each of which (other than the Class A-R Certificate) will
represent ownership of one or more "REMIC regular interests" in the Master
REMIC. The Class A-R Certificate will represent ownership of the sole Class of
"REMIC residual interest" in each of the Subsidiary REMIC and the Master REMIC.
The latest possible maturity date, for federal income tax purposes, of all
REMIC regular interests created herein shall be the Latest Possible Maturity
Date.
1
The Subsidiary REMIC
The following table specifies the Class designation, interest rate, and
principal amount for each Class of Subsidiary REMIC Interest:
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Subsidiary Initial Principal Corresponding
REMIC Interest Balance Interest Rate Certificates
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SR-A-1 (1) 4.50% A-1
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SR-A-2 (1) 5.50% A-2
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SR-A-3 (1) 7.50% X-0, X-0
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XX-X-0 (1) 5.50% A-5
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SR-A-R (1) 0% A-R
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R-1 (2) (2) N/A
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(1) On each Distribution Date, following the allocation of Realized Losses,
increases in Principal Balances attributable to Underlying Subsequent
Recoveries and scheduled and unscheduled payment of principal, each
Subsidiary REMIC Interest will have a principal balance equal to the
principal balance of its related Class of Corresponding Certificates.
(2) The R-1 is the sole Class of residual interest in the Subsidiary REMIC.
It pays no interest or principal.
2
The Master REMIC
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess
thereof in which such Classes shall be issuable (except that one Certificate of
each Class of Certificates may be issued in a different amount and, in
addition, one Residual Certificate representing the Tax Matters Person
Certificate may be issued in a different amount):
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Integral
Initial Class Pass-Through Multiples
Class Certificate Rate Minimum in Excess of
Designation Balance (per annum) Denomination Minimum
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Class A-1 $ 98,906,000 4.50% $25,000.00 $1,000.00
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Class A-2 $ 20,188,000 5.50% $25,000.00 $1,000.00
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Class A-3 $ 19,375,590 5.50% $25,000.00 $1,000.00
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Class A-4 $ 49,453,000 Variable(1) $25,000.00 $1,000.00
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Class A-5 N/A(2) Variable(3) $25,000.00(4) $1,000.00
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Class A-R (5) $100 5.50% $100.00 N/A
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1. The Pass-Through Rate for the Class A-4 Certificates for the Interest
Accrual Period for any Distribution Date will be a per annum rate equal
to (A) LIBOR, plus (B) 50 basis points. The Pass-Through Rate for the
Class A-4 Certificates for the Interest Accrual Period for the first
Distribution Date will be 2.079% per annum.
2. The Class A-5 Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on its Notional
Amount (initially, $49,453,000).
3. The Pass-Through Rate for the Class A-5 Certificates for the Interest
Accrual Period for any Distribution Date will be a per annum rate equal
to (A) 7.00% minus (B) LIBOR. The Pass-Through Rate for the Class A-5
Certificates for the Interest Accrual Period for the first Distribution
Date will be 5.421% per annum.
4. Minimum denomination is based on the Notional Amount of such Class.
5. The Class A-R Certificate evidences the sole Class of residual interest
in each REMIC.
3
Set forth below are designations of Classes of Certificates to the categories
used herein:
Accretion Directed
Certificates.................... Class A-2 Certificates.
Accrual Certificates............ Class A-3 Certificates.
Accrual Components.............. None.
Book-Entry Certificates......... All Classes of Certificates other than
the Physical Certificates.
COFI Certificates............... None.
Component Certificates.......... None.
Components...................... None.
Delay Certificates.............. All interest-bearing Classes of Certificates
other than the Non-Delay Certificates,
if any.
ERISA-Restricted
Certificates.................... Residual Certificates; and any
Certificate of a Class that ceases to
satisfy the applicable rating requirement
under the Underwriter's Exemption.
Floating Rate Certificates...... Class A-4 Certificates.
Inverse Floating Rate
Certificates.................... Class A-5 Certificates.
LIBOR Certificates.............. Floating Rate Certificates and Inverse
Floating Rate Certificates.
Non-Delay Certificates.......... Class A-4 and Class A-5 Certificates.
Notional Amount
Certificates.................... Class A-5 Certificates.
Notional Amount Components...... None.
Offered Certificates............ All Classes of Certificates.
Physical Certificates........... Residual Certificates.
Planned Principal Classes....... None.
Planned Principal Components.... None.
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Principal Only
Certificates.................... None.
Rating Agencies................. S&P and Fitch.
Regular Certificates............ All Classes of Certificates other than
the Residual Certificates.
Residual Certificates........... Class A-R Certificate.
Scheduled Principal
Classes......................... None.
Senior Certificates............. Class X-0, Xxxxx X-0, Class A-3, Class
A-4, Class A-5 and Class A-R
Certificates.
Subordinated Certificates....... None.
Targeted Principal
Classes......................... None.
Targeted Principal
Components...................... None.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accrual Amount: With respect to the Class A-3 Certificates and any
Distribution Date prior to the Accrual Termination Date, the amount allocable
to interest on such Class of Certificates with respect to such Distribution
Date pursuant to Section 3.04(a)(i).
Accrual Termination Date: With respect to the Class A-3 Certificates, the
earlier of (a) the Underlying Senior Credit Support Depletion Date and (b) the
Distribution Date on which the Class Certificate Balance of the Class A-2
Certificates has been reduced to zero.
Aggregate Planned Balance: With respect to any group of Planned Principal
Classes or Components and any Distribution Date, the amount set forth for such
group for such Distribution Date in Schedule II hereto.
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Aggregate Targeted Balance: With respect to any group of Targeted
Principal Classes or Components and any Distribution Date, the amount set forth
for such group for such Distribution Date in Schedule II hereto.
Agreement: This Trust Agreement and all amendments hereof and
supplements hereto.
Allocated Underlying Net Interest Shortfalls: As to any Distribution
Date, the Underlying Net Interest Shortfalls allocated to the Deposited
Underlying Certificates in accordance with the Underlying Agreement in
connection with distributions thereon for such Distribution Date.
Allocated Underlying Net Prepayment Interest Shortfalls: As to any
Distribution Date, the Underlying Net Prepayment Interest Shortfalls allocated
to the Deposited Underlying Certificates in accordance with the Underlying
Agreement in connection with distributions thereon for such Distribution Date.
Allocated Underlying Realized Losses: As to any Distribution Date, the
Underlying Realized Losses (including Underlying Excess Losses) allocated to
the Deposited Underlying Certificates in accordance with the Underlying
Agreement in connection with distributions thereon for such Distribution Date.
Available Funds: As to any Distribution Date, the sum of Available
Interest Funds and Available Principal Funds on such Distribution Date.
Available Interest Funds: As to any Distribution Date, the aggregate of
all previously undistributed amounts received by the Trustee on or prior to
such Distribution Date as distributions of interest on the Deposited Underlying
Certificates.
Available Principal Funds: As to any Distribution Date, the aggregate of
all previously undistributed amounts received by the Trustee on or prior to
such Distribution Date as distributions of principal on the Deposited
Underlying Certificates, reduced by the sum of expenses and liabilities
reimbursable to the Trustee or the Depositor pursuant to Section 5.06 or
Section 6.03 hereof, respectively, and any taxes imposed on the Trust Fund to
be paid from amounts otherwise distributable to Certificateholders pursuant to
Section 5.12 hereof (in each case, that have not been previously paid by a
reduction of Available Principal Funds).
Bank: As defined in Section 3.02(a).
Book-Entry Certificate: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in the City of New York, New York, or the
State of California or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
Certificate: Any one of the Certificates executed by the Trustee, on
behalf of the Trust, substantially in the forms attached hereto as exhibits.
6
Certificate Balance: With respect to any Certificate at any date, the
maximum dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the Denomination thereof (A) plus any
Underlying Subsequent Recoveries added to the Certificate Balance of such
Certificate pursuant to Section 3.04, and (B) minus the sum of (i) all
distributions of principal previously made with respect thereto and (ii) all
Underlying Realized Losses allocated thereto and, all other reductions in
Certificate Balance (including the pro rata portion of certain expenses and
liabilities reimbursable to the Depositor pursuant to Section 3.03(b) and any
taxes imposed on the Trust Fund paid pursuant to Section 3.03(c)) previously
allocated thereto pursuant to Section 3.06.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided,
however, that if any such Person (including the Depositor) owns 100% of the
Percentage Interests evidenced by a Class of Certificates, such Certificates
shall be deemed to be Outstanding for purposes of any provision hereof that
requires the consent of the Holders of Certificates of a particular Class as a
condition to the taking of any action hereunder. The Trustee is entitled to
rely conclusively on a certification of the Depositor or any affiliate of the
Depositor in determining which Certificates are registered in the name of an
affiliate of the Depositor.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
4.02(a).
Class: All Certificates bearing the same designation as set forth in
the Preliminary Statement.
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest bearing Class, the sum of (i) one month's
interest accrued during the related Interest Accrual Period at the Pass-Through
Rate for such Class on the related Class Certificate Balance or Notional Amount
immediately prior to such Distribution Date, subject to reduction as provided
in 3.04(c) and (ii) any Class Unpaid Interest Amounts for such Class.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest bearing Certificates, the amount by which the aggregate Class Interest
Shortfalls for such Class
7
on prior Distribution Dates exceeds the amount distributed on such Class on
prior Distribution Dates pursuant to clause (ii) of the definition of Class
Optimal Interest Distribution Amount.
Closing Date: August 30, 2004.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Commission: The United Stated Securities and Exchange Commission.
Component Balance: With respect to any Component and any Distribution
Date, the Initial Component Balance thereof on the Closing Date, (A) plus any
Underlying Subsequent Recoveries added to the Component Balance of such
Component pursuant to Section 3.04, (B) minus the sum of all amounts applied in
reduction of the principal balance of such Component and Realized Losses
allocated thereto on previous Distribution Dates.
Component Certificates: As specified in the Preliminary Statement.
Component Notional Amount: Not applicable.
Corporate Trust Office: The designated office of the Trustee at which at
any particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
Agreement is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx
00000, Attention: Trust Administration IN04R2, and which is the address to
which notices to and correspondence with the Trustee should be directed.
Corresponding Classes of Certificates: With respect to each Subsidiary
REMIC Regular Interest, any Class of Certificates or Components appearing
opposite such Subsidiary REMIC Regular Interest in the Preliminary Statement.
Definitive Certificate: Any definitive, fully registered Certificate.
Delay Certificates: As specified in the Preliminary Statement.
Delivery: When used with respect to any Distribution Account Property or
Securities Account Property means delivery of such Distribution Account
Property or Securities Account Property, as applicable, as follows (terms used
in the following provisions that are not otherwise defined are used as defined
in Article 8 of the UCC):
(1) in the case of each certificated security (other than a clearing
corporation security (as defined below)) or instrument, by:
(A) the delivery of such certificated security or instrument to the
Securities Intermediary registered in the name of the Securities
Intermediary or its affiliated nominee or endorsed to the Securities
Intermediary or in blank,
(B) the Securities Intermediary continuously indicating by
book-entry that such certificated security or instrument is credited to
the Securities Account, and
8
(C) the Securities Intermediary maintaining continuous possession
of such certificated security or instrument in the State of New York;
(2) in the case of each uncertificated security (other than a clearing
corporation security), by causing:
(A) such uncertificated security to be continuously registered on
the books of the issuer thereof to the Securities Intermediary, and
(B) the Securities Intermediary continuously indicating by
book-entry that such uncertificated security is credited to the
Securities Account;
(3) in the case of each security in the custody of or maintained on the
books of a clearing corporation or its nominee (a "clearing corporation
security"), by causing:
(A) the relevant clearing corporation to credit such clearing
corporation security to the securities account of the Securities
Intermediary, and
(B) the Securities Intermediary continuously indicating by
book-entry that such clearing corporation security is credited to the
Securities Account;
(4) in the case of each security issued or guaranteed by the United
States of America or agency or instrumentality thereof and that is maintained
in book-entry records of the Federal Reserve Bank of New York ("FRBNY") (each
such security, a "government security"), by causing:
(A) the creation of a security entitlement to such government
security by the credit of such government security to the securities
account of the Securities Intermediary at the FRBNY, and
(B) the Securities Intermediary continuously indicating by
book-entry that such government security is credited to the Securities
Account;
(5) in the case of each security entitlement not governed by clauses (1)
through (4) above, by:
(A) causing a securities intermediary (x) to indicate by book-entry
that the underlying "financial asset" (as defined in Section 8-102(a)(9)
of the UCC) has been credited to be the Securities Intermediary's
securities account, (y) to receive a financial asset from the Securities
Intermediary or acquiring the underlying financial asset for the
Securities Intermediary, and in either case, accepting it for credit to
the Securities Intermediary's securities account or (z) to be become
obligated under other law, regulation or rule to credit the underlying
financial asset to the Security Intermediary's securities account,
(B) the making by such securities intermediary of entries on its
books and records continuously identifying such security entitlement as
belonging to the Securities
9
Intermediary and continuously indicating by book-entry that such
securities entitlement is credited to the Securities Intermediary's
securities account, and
(C) the Securities Intermediary continuously indicating by
book-entry that such security entitlement (or all rights and property of
the Securities Intermediary representing such securities entitlement) is
credited to the Securities Account; and
(6) in the case of cash or money, by:
(A) the delivery of such cash or money to the Bank, and
(B) the Bank's continuously crediting such cash or money to the
Distribution Account.
Denomination: With respect to each Certificate, the amount set forth on
the face thereof as the "Initial Certificate Balance of this Certificate" or
the "Initial Notional Amount of this Certificate" or, if neither of the
foregoing, the Percentage Interest appearing on the face thereof.
Deposited Underlying Certificates: As set forth on Schedule I hereto.
Deposited WAC: For any Distribution Date, the weighted average of the
pass-through rates on the Deposited Underlying Certificates for the related
Interest Accrual Period, weighted on the basis of their respective Class
Certificate Balance (as defined in the Underlying Agreement) immediately prior
to such Distribution Date.
Depositor: IndyMac MBS, Inc., a Delaware corporation, or its
successors in interest.
Depository: The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates is Cede &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New York and
a "clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Deutsche Bank: Deutsche Bank National Trust Company, a national banking
association, or its successor in interest.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.02 in the name of the Trustee
for the benefit of the Certificateholders and designated "Deutsche Bank
National Trust Company in trust for registered holders of IndyMac MBS, Inc.
Residential Asset Securitization Trust 2004-R2, Mortgage Pass-Through
Certificates, Series 2004-R2." Funds in, and other property credited to, the
Distribution Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement.
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Distribution Account Property: The Distribution Account, all amounts,
investments and other property held from time to time in the Distribution
Account, and all proceeds of the foregoing.
Distribution Date: The same day as each Underlying Distribution Date.
Eligible Account: Any of (i) a segregated account or accounts maintained
with a federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of Moody's and one of the two highest short-term ratings of
S&P and Fitch, if Fitch or S&P is a Rating Agency, at the time any amounts are
held on deposit therein, or (ii) a segregated account or accounts in a
depository institution or trust company in which such accounts are insured by
the FDIC (to the limits established by the FDIC) and the uninsured deposits in
which accounts are otherwise secured such that, as evidenced by an Opinion of
Counsel delivered to the Trustee and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a segregated trust
account or accounts maintained with the trust department of a federal or state
chartered depository institution subject to regulations regarding fiduciary
funds on deposit similar to Title XII of the C.F.R. Section 9.10(b) which in
either case has corporate trust powers acting in its fiduciary capacity, (iv)
any other account acceptable to each Rating Agency. Eligible Accounts may bear
interest by investment in Permitted Investments, and may include, if otherwise
qualified under this definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of the
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section 8.07
the address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx, XX 00000, Attention: MBS Monitoring - IndyMac 2004-R2, or
any other address Fitch furnishes to the Depositor and the Master Servicer.
Initial Class Certificate Balance: With respect to each Class of
Certificates, the Class Certificate Balance of such Class on the Closing Date.
Interest Accrual Period: With respect to each Class of Delay
Certificates, its corresponding Subsidiary REMIC Regular Interest and any
Distribution Date, the calendar month prior to the month of such Distribution
Date. With respect to any Class of Non-Delay Certificates, its corresponding
Subsidiary REMIC Regular Interest and any Distribution Date,
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the one month period commencing on the 25th day of the month preceding the
month in which such Distribution Date occurs (other than the first Distribution
Date, for which it is the Closing Date) and ending on the 24th day of the month
in which such Distribution Date occurs.
Interest Determination Date: With respect to any Interest Accrual Period
for any LIBOR Certificates, the second Business Day prior to the first day of
such Interest Accrual Period.
Interest Rate: With respect to each Subsidiary REMIC Interest, the
applicable rate set forth or calculated in the manner described in the
Preliminary Statement.
International Organization: As defined in the Code.
Investment Company Act: The Investment Company Act of 1940, as amended.
Latest Possible Maturity Date: The Distribution Date in September 2033.
LIBOR: The London interbank offered rate for one-month United States
dollar deposits calculated in the manner described in Section 3.07.
LIBOR Certificates: As specified in the Preliminary Statement.
Majority in Interest: As to any Class of Certificates, the Holders of
Certificates of such Class evidencing, in the aggregate, at least 51% of the
Percentage Interests evidenced by all Certificates of such Class.
Master REMIC: As described in the Preliminary Statement.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
If Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, the
address for notices to Moody's shall be Xxxxx'x Investors Service, Inc., 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Pass-Through
Monitoring, or such other address as Moody's may hereafter furnish to the
Depositor.
Non-Delay Certificates: As specified in the Preliminary Statement.
Notional Amount: With respect to any Distribution Date and the Class A-5
Certificates, an amount equal to the Class Certificate Balance of the Class A-4
Certificates immediately prior to such Distribution Date.
Notional Amount Certificates: As specified in the Preliminary
Statement.
Officers' Certificate: A certificate in the case of the Depositor, signed
by the Chairman of the Board, the Vice Chairman of the Board, the President, a
Managing Director, a Vice President (however denominated), an Assistant Vice
President, the Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant Secretaries of the Depositor.
12
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Depositor, including, in-house counsel, reasonably acceptable to the
Trustee; provided, however, that with respect to the interpretation or
application of the REMIC Provisions, such counsel must (i) in fact be
independent of the Depositor, (ii) not have any direct financial interest in
the Depositor or in any affiliate thereof, and (iii) not be connected with the
Depositor as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect,
legal or beneficial.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Pass-Through Rate: For any interest bearing Class of Certificates or
Component, the per annum rate set forth or calculated in the manner described
in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: At any time, any one or more of the following
obligations and securities and may include investments for which the Trustee or
any of its Affiliates serves as investment manager or advisor:
(i) obligations of the United States or any agency thereof,
provided such obligations are backed by the full faith and
credit of the United States;
(ii) general obligations of or obligations guaranteed by any state
of the United States or the District of Columbia receiving
the highest long-term debt rating of each Rating Agency, or
such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates
by each Rating Agency;
(iii) commercial or finance company paper which is then receiving
the highest commercial or finance company paper rating of
each Rating Agency, or such lower rating as will not result
in the downgrading or withdrawal of the ratings then assigned
to the Certificates by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust
company incorporated under the laws of the
13
United States or of any state thereof and subject to
supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or long
term unsecured debt obligations of such depository
institution or trust company (or in the case of the principal
depository institution in a holding company system, the
commercial paper or long-term unsecured debt obligations of
such holding company, but only if Xxxxx'x is not a Rating
Agency) are then rated one of the two highest long-term and
the highest short-term ratings of each Rating Agency for such
securities, or such lower ratings as will not result in the
downgrading or withdrawal of the rating then assigned to the
Certificates by either Rating Agency;
(v) repurchase obligations with respect to any security described
in clauses (i) and (ii) above, in either case entered into
with a depository institution or trust company (acting as
principal) described in clause (iv) above;
(vi) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency and restricted to
obligations issued or guaranteed by the United States of
America or entities whose obligations are backed by the full
faith and credit of the United States of America and
repurchase agreements collateralized by such obligations; and
(vii) such other relatively risk free investments bearing interest
or sold at a discount acceptable to each Rating Agency as
will not result in the downgrading or withdrawal of the
rating then assigned to the Certificates by either Rating
Agency, as evidenced by a signed writing delivered by each
Rating Agency
provided, that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with respect
to the obligations underlying such instrument.
Permitted Transferee: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(l) of the Code) with respect
to any Residual Certificate, (iv) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (v) an "electing large
partnership" as defined in Section 775 of the Code, (vi) a Person that is not a
citizen or resident of the United States, a corporation, partnership, or other
entity created or organized in or under the laws of the United States, any
state thereof or the District of Columbia, or an estate or trust whose income
from sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust unless such Person
has furnished the transferor and the Trustee with a duly completed Internal
Revenue Service Form W-8ECI or any applicable successor form, and (vii) any
other Person so designated by the Depositor based upon an Opinion of Counsel
that the Transfer of an
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Ownership Interest in a Residual Certificate to such Person may cause either
REMIC hereunder to fail to qualify as a REMIC at any time that the Certificates
are outstanding. The terms "United States," "State" and "International
Organization" shall have the meanings set forth in section 7701 of the Code or
successor provisions. A corporation will not be treated as an instrumentality
of the United States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the exception of
the Federal Home Loan Mortgage Corporation, a majority of its board of
directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture, limited
liability company, association, joint-stock company, trust, unincorporated
organization or government, or any agency or political subdivision thereof.
Physical Certificate: As specified in the Preliminary Statement.
Planned Balance: With respect to any group of Planned Principal Classes
or Components in the aggregate and any Distribution Date appearing in Schedule
II hereto, the Aggregate Planned Balance for such group and Distribution Date.
With respect to any other Planned Principal Class or Component and any
Distribution Date appearing in Schedule II hereto, the applicable amount
appearing opposite such Distribution Date for such Class or Component.
Planned Principal Classes: As specified in the Preliminary Statement.
Prepayment Assumption: As defined in the Prospectus Supplement.
Priority Amount: Not applicable.
Priority Percentage: Not applicable.
Prospectus Supplement: The Prospectus Supplement, dated August 25,
2004 relating to the Offered Certificates.
Purchase Price: As defined in Section 2.03(a) hereof.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, as is designated by the Depositor,
notice of which designation shall be given to the Trustee. References herein to
a given rating category of a Rating Agency shall mean such rating category
without giving effect to any modifiers.
Record Date: The last Business Day of the calendar month preceding the
month in which such Distribution Date occurs.
Reference Bank: As defined in Section 3.07 hereof.
Regular Certificates: As described in the Preliminary Statement.
15
REMIC: A "real estate mortgage investment conduit" within the meaning
of section 860D of the Code.
REMIC Change of Law: Any proposed, temporary or final regulation, revenue
ruling, revenue procedure or other official announcement or interpretation
relating to REMICs and the REMIC Provisions issued after the Closing Date.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from time
to time as well as provisions of applicable state laws.
Residual Certificates: As described in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Managing Director, Director, Associate, Assistant Vice
President, the Secretary, any Assistant Secretary, any Trust Officer or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also to whom, with
respect to a particular matter, such matter is referred because of such
officer's knowledge of and familiarity with the particular subject and has
direct responsibility for the administration of this Trust Agreement.
Review Procedure: Any of the following: (1) The Uniform Attestation
Program for Mortgage Bankers ("USAP"), to the extent such program provides
standards reasonably applicable to resecuritization transactions; (2)
established or stated criteria, as set forth in the professional standards of
the American Institute of Certified Public Accountants, reasonably applicable
to transactions in the nature of those contemplated hereunder; or (3) such
other program, criteria, procedure or standard, as determined by the Depositor
to be similar to the USAP to the extent applicable to resecuritization
transactions, setting forth commercially prudent practices reasonably
applicable to transactions in the nature of those contemplated hereunder.
Rule 3a-7: Rule 3a-7 of the Investment Company Act, as then in effect (or
any successor rule).
Securities Account: As defined in Section 3.02 hereof.
Securities Account Property: The Securities Account, all amounts,
investments and other property held from time to time in the Securities
Account, and all proceeds of the foregoing.
Securities Intermediary: As defined in Section 3.02(b) hereof.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc. If
S&P is designated as a Rating Agency in the Preliminary Statement, the address
for notices to S&P shall be Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Mortgage Surveillance Monitoring, or such other address
as S&P may hereafter furnish to the Depositor.
Shift Percentage: Not applicable.
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SR-A-R Interest: The sole class of "residual interest" in the Subsidiary
REMIC.
Startup Day: The Closing Date.
Subsidiary REMIC: As described in the Preliminary Statement.
Subsidiary REMIC Interest: Any one of the Subsidiary REMIC Regular
Interests or the SR-A-R Interest.
Subsidiary REMIC Regular Interest: Any one of the "regular interests"
in the Subsidiary REMIC described in the Preliminary Statement.
Suspension Notification: Notification to the Commission of the
suspension of the Trust Fund's obligation to file reports pursuant to Section
15(d) of the Exchange Act.
Targeted Balance: With respect to any group of Targeted Principal Classes
or Components in the aggregate and any Distribution Date appearing in Schedule
II hereto, the Aggregate Targeted Balance for such group and Distribution Date.
With respect to any other Targeted Principal Class or Component and any
Distribution Date appearing in Schedule II hereto, the applicable amount
appearing opposite such Distribution Date for such Class or Component.
Targeted Principal Classes: As specified in the Preliminary Statement.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulation ss. 1.860F-4(d) and temporary
Treasury regulation ss. 301.6231(a)(7)1T. Initially, the Tax Matters Person
shall be the Trustee.
Tax Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.01.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: A certificate substantially in the form of Exhibit
F annexed hereto.
Transferor Affidavit: A certificate substantially in the form of
Exhibit E hereto.
Trustee: Deutsche Bank National Trust Company and its successors and,
if a successor trustee is appointed hereunder, such successor.
Trust Fund: The corpus of the trust created by this Agreement and
evidenced by the Certificates, consisting of: (A) the Deposited Underlying
Certificates, (B) all distributions thereon due to the holders of the Deposited
Underlying Certificates after August 25, 2004 in respect of the terms thereof,
(C) the Distribution Account and the Securities Account, (D) all investment
property, deposit accounts, accounts, general intangibles, money, instruments,
documents and other property evidencing any and all of the foregoing, and (E)
all proceeds of any and all of the foregoing.
17
UCC: The Uniform Commercial Code as in effect in the State of New York.
Underlying Agreement: The Pooling and Servicing Agreement, dated as of
June 1, 2004 among IndyMac MBS, Inc., as depositor, IndyMac Bank, F.S.B., as
seller and as master servicer, and Deutsche Bank National Trust Company, as
trustee, related to Residential Asset Securitization Trust 2004-A5, Mortgage
Pass-Through Certificates, Series 2004-E, as it may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Underlying Certificate Account: The "Certificate Account" as defined
in the Underlying Agreement.
Underlying Certificate Seller: Greenwich Capital Markets, Inc., a
Delaware corporation, or its successors in interest.
Underlying Distribution Date: The "Distribution Date" as defined in the
Underlying Agreement.
Underlying Excess Losses: "Excess Losses" as defined in the Underlying
Agreement.
Underlying Liquidated Mortgage Loan: "Liquidated Mortgage Loan" as
defined in the Underlying Agreement.
Underlying Net Interest Shortfalls: "Net Interest Shortfalls" as
defined in the Underlying Agreement.
Underlying Net Prepayment Interest Shortfalls: "Net Prepayment
Interest Shortfalls" as defined in the Underlying Agreement.
Underlying Realized Losses: "Realized Losses" (other than any
Underlying Excess Losses) as defined in the Underlying Agreement.
Underlying Relief Act Reductions: Any "Relief Act Reductions" as
defined in the Underlying Agreement.
Underlying Senior Credit Support Depletion Date: The "Senior Credit
Support Depletion Date" as defined in the Underlying Agreement.
Underlying Subsequent Recoveries: "Subsequent Recoveries" as defined
in the Underlying Agreement.
Underlying Trust: The "Trust Fund" as defined in the Underlying
Agreement.
Underlying Trustee: The "Trustee" as defined in the Underlying
Agreement.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41, 67
Fed. Reg. 54487 (2002), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
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Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to each Class of
Notional Amount Certificates, if any (such Voting Rights to be allocated among
the holders of Certificates of each such Class in accordance with their
respective Percentage Interests), and (b) the remaining Voting Rights (or 100%
of the Voting Rights if there is no Class of Notional Amount Certificates)
shall be allocated among Holders of the remaining Classes of Certificates in
proportion to the Certificate Balances of their respective Certificates on such
date.
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ARTICLE II
CONVEYANCE OF THE DEPOSITED UNDERLYING CERTIFICATES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of the Deposited Underlying Certificates. The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, convey, sell and assign to the Trustee, on behalf of the Holders of
the Certificates, without recourse, all the right, title and interest of the
Depositor in and to the Deposited Underlying Certificates with appropriate
endorsements and other documentation sufficient under the Underlying Agreement
to transfer each such Deposited Underlying Certificate to the Trustee,
including all distributions thereon due after August 25, 2004, and all proceeds
of the foregoing. Each of the Underlying Certificate Seller and the Depositor
severally agrees to transfer to the Trustee promptly upon receipt (by wire
transfer of immediately available funds), any amounts it receives in respect of
the Deposited Underlying Certificates due thereon after August 25, 2004.
The transfer of the Deposited Underlying Certificates and all other
assets constituting the Trust Fund is absolute and is intended by the parties
hereto as a sale. The Underlying Certificate Seller hereby confirms that it has
caused the beneficial ownership interest in the Deposited Underlying
Certificates to be registered with a Depository Participant or an indirect
participant in the Depository in the name of the Securities Intermediary for
the benefit of the Trustee on behalf of the Certificateholders.
The Securities Intermediary hereby confirms to the Trustee that (i) the
Deposited Underlying Certificates have been confirmed by the Depository to have
been delivered to the Trustee (on behalf of the Certificateholders), subject to
no other interests, and held with the Securities Intermediary, as a Depository
Participant, in book-entry form, and (ii) the Securities Intermediary is
holding such Deposited Underlying Certificate for the account of the Trustee,
on behalf of the Certificateholders. The Trustee hereby acknowledges the
receipt by it and the Securities Intermediary of the Deposited Underlying
Certificates and the other documents and instruments referenced above, in good
faith and without actual notice of any adverse claim, and declares that it
holds and will hold the Deposited Underlying Certificates and the other
documents and instruments, and that it holds and will continuously hold all
other assets in the Trust Fund, in each case, in the State of New York
(provided, however, that if the Deposited Underlying Certificates ever become
definitive certificates, the Trustee will hold them in Nashville, Tennessee),
in trust for the exclusive use and benefit of all present and future
Certificateholders. The Trustee shall not permit the Deposited Underlying
Certificates or any other asset constituting the Trust Fund to be subjected to
any lien, claim or encumbrance arising by, through or under the Trustee or any
person claiming by, through or under the Trustee. The Depositor agrees to
provide to the Trustee all documents required for the transfer to the Trustee
of the Deposited Underlying Certificates.
It is intended that the conveyance of the Deposited Underlying
Certificates by the Depositor to the Trustee as provided in this Section be,
and be construed as, a sale of the Deposited Underlying Certificates by the
Depositor to the Trustee for the benefit of the Certificateholders. It is,
further, not intended that such conveyance be deemed a pledge of the
20
Deposited Underlying Certificates by the Depositor to the Trustee to secure a
debt or other obligation of the Depositor. However, in the event that the
Deposited Underlying Certificates are held to be the property of the Depositor,
or if for any reason this Agreement is held or deemed to create a security
interest in the Deposited Underlying Certificates, then it is intended that (a)
this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the UCC and the corresponding articles of the
Uniform Commercial Code of any other applicable jurisdiction; and (b) the
conveyance provided for in this Section shall be deemed to be a grant by the
Depositor to the Trustee for the benefit of the Certificateholders of a
security interest in all of the Depositor's right, title and interest, whether
now owned or hereafter acquired, in and to the Trust Fund. The Depositor and
the Trustee, at the Depositor's written direction and expense, shall, to the
extent consistent with this Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in the
Deposited Underlying Certificates and other assets constituting the Trust Fund
described above, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement.
Section 2.02 Acceptance by Trustee. Deutsche Bank, in its capacity as
Securities Intermediary for the Trustee confirms that (i) the Deposited
Underlying Certificates in book-entry form have been confirmed by the
Depository to have been delivered to the Trustee, subject to no other
interests, and held in the Securities Intermediary in book-entry form, as a
participant in the Depository and (ii) the Securities Intermediary is holding
such Deposited Underlying Certificates in book-entry form for the account of
the Trustee, as owner of the Deposited Underlying Certificates in its capacity
as trustee for the Certificateholders. The Trustee declares that it shall hold
ownership interest in the Deposited Underlying Certificates in trust and shall
hold all proceeds of any of the foregoing and all other rights, titles or
interests of the Trustee in any asset included in the Trust Fund from time to
time in trust, upon the terms herein set forth, for the use and benefit of all
present and future Certificateholders. The Trustee agrees, for the benefit of
Certificateholders, to confirm that the class designation and original
principal balance with respect to the Deposited Underlying Certificates conform
to the information set forth on Schedule I on the Closing Date.
Section 2.03 Representations and Warranties of the Underlying Certificate
Seller. The Underlying Certificate Seller hereby represents and warrants to the
Depositor and the Trustee
(a) With respect to the Deposited Underlying Certificates as of the
Closing Date as follows:
(i) prior to the transfer of the Deposited Underlying Certificates to
the Depositor, the Underlying Certificate Seller was the sole owner of the
Deposited Underlying Certificates free and clear of any lien, pledge,
charge or encumbrance of any kind;
(ii) the Underlying Certificate Seller has not assigned any interest
in the Deposited Underlying Certificates or any distributions thereon,
except as contemplated herein;
21
(iii) the crediting of the Deposited Underlying Certificates to the
Securities Account is sufficient to effect the transfer of the Deposited
Underlying Certificates to the Trustee pursuant to Section 2.01 hereof;
and
(iv) the Deposited Underlying Certificates constitute a "securities
entitlement" within the meaning of the UCC.
The representations and warranties set forth in this Section 2.03(a)
shall survive the transfer and assignment of the Deposited Underlying
Certificates by the Depositor to the Trustee. Upon discovery by the Underlying
Certificate Seller, the Depositor or a Responsible Officer of the Trustee of a
breach of any of the foregoing representations and warranties which materially
and adversely affects the interests of the Certificateholders in the Deposited
Underlying Certificates, the Underlying Certificate Seller, the Depositor or
the Trustee shall give prompt written notice to the other parties and to the
Certificateholders. The Underlying Certificate Seller shall cure such breach in
all material respects or, if such breach cannot be cured on or prior to the
Distribution Date in October 2004, the Underlying Certificate Seller shall
repurchase the Deposited Underlying Certificates from the Trustee on the
Distribution Date immediately following the date on which the Underlying
Certificate Seller is so directed by Holders of a Majority in Interest of the
Classes of Regular Certificates. Any such repurchase of the Deposited
Underlying Certificates by the Underlying Certificate Seller shall be
accomplished on the Distribution Date of repurchase, by the payment on the
Business Day prior to such Distribution Date by the Underlying Certificate
Seller to the Trustee of an amount (in immediately available funds) (the
"Purchase Price") equal to the principal balance of the Deposited Underlying
Certificates immediately prior to the Distribution Date of such repurchase plus
unpaid interest thereon due on or prior to the Distribution Date of such
repurchase (it being understood that all distributions made on the Deposited
Underlying Certificates up to immediately prior to the Distribution Date of
such repurchase shall be property of the Trust Fund). The payment of the
Purchase Price shall be considered a prepayment in full of the Deposited
Underlying Certificates and shall be delivered to the Trustee for deposit in
the Distribution Account in accordance with the provisions of Section 3.02
hereof. Upon such deposit into such Distribution Account, the repurchased
Deposited Underlying Certificates shall be released to the Underlying
Certificate Seller, and the Trustee and the Depositor shall execute and deliver
such instruments of transfer or assignment, in each case without recourse, as
shall be reasonably requested and provided by the Underlying Certificate Seller
to vest in the Underlying Certificate Seller, or its designee or assignee,
title to the Deposited Underlying Certificates repurchased pursuant hereto. The
obligation of the Underlying Certificate Seller to cure such breach of
representations and warranties or effect such repurchase of the Deposited
Underlying Certificates shall constitute the sole remedy respecting such breach
available to Certificateholders or the Trustee on behalf of Certificateholders.
(b) With respect to the Underlying Certificate Seller:
(i) The Underlying Certificate Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware with full power and authority to execute, deliver and
perform this Agreement.
22
(ii) This Agreement has been duly authorized, executed and delivered
by the Underlying Certificate Seller and constitutes the legal, valid and
binding agreement of the Underlying Certificate Seller, enforceable in
accordance with its terms, except as enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally or by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(iii) Neither the execution nor the delivery of this Agreement nor
the issuance, delivery and sale of the Certificates, nor the consummation
of any other of the transactions contemplated herein nor the fulfillment
of the terms of this Agreement or the Certificates will result in the
breach of any term or provision of the charter, by-laws or resolutions of
the Underlying Certificate Seller or conflict with, result in a breach,
violation or acceleration of or constitute a default under, the terms of
any material indenture or other agreement or instrument to which the
Underlying Certificate Seller is a party or by which it is bound, or any
statute, order or regulation applicable to the Underlying Certificate
Seller of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Underlying Certificate
Seller.
(iv) There are no actions or proceedings against, or investigations
of, the Underlying Certificate Seller pending, or, to the knowledge of the
Underlying Certificate Seller, threatened, before any court,
administrative agency or other tribunal (A) asserting the invalidity of
this Agreement or the Certificates, (B) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement, or (C) which might materially and
adversely affect the validity or enforceability of this Agreement or the
Certificates.
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(b) shall survive delivery of the Trust Fund to the
Trustee. Upon discovery by the Underlying Certificate Seller, the Depositor or
a Responsible Officer of the Trustee of a breach of any of the foregoing
representations and warranties which breach materially and adversely affects
the interests of the Certificateholders, the party discovering such breach
shall give prompt written notice to the other parties and to the Rating
Agencies.
Section 2.04 Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee as of the Closing Date
as follows:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with full
power and authority to execute, deliver and perform this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Depositor and constitutes the legal, valid and binding agreement of
the Depositor, enforceable in accordance with its terms, except as
enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally or by general
23
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(iii) Neither the execution nor the delivery of this Agreement nor
the issuance, delivery and sale of the Certificates, nor the consummation
of any other of the transactions contemplated herein nor the fulfillment
of the terms of this Agreement or the Certificates will result in the
breach of any term or provision of the charter or by-laws of the Depositor
or conflict with, result in a breach, violation or acceleration of or
constitute a default under, the terms of any material indenture or other
agreement or instrument to which the Depositor is a party or by which it
is bound, or any statute, order or regulation applicable to the Depositor
of any court, regulatory body, administrative agency or governmental body
having jurisdiction over the Depositor.
(iv) There are no actions or proceedings against, or investigations
of, the Depositor pending, or, to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal (A)
asserting the invalidity of this Agreement or the Certificates, (B)
seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by this Agreement, or (C) which might
materially and adversely affect the validity or enforceability of this
Agreement or the Certificates.
(v) The Distribution Account constitutes a "deposit account" (as
defined in Section 9-102(a)(29) of the UCC). The Securities Account
constitutes a "securities account" (as defined in Section 8-501(a) of the
UCC). The Deposited Underlying Certificates have been credited to the
Securities Account. The Securities Intermediary has agreed to treat all
assets credited to the Securities Account as "financial assets" (as
defined in Section 8-102(a)(9) of the UCC).
(vi) This Agreement is an agreement pursuant to which the Securities
Intermediary or the Bank, as the case may be, has agreed to comply with
all instructions or directions originated by the Trustee relating to the
Distribution Account and the Securities Account without further consent by
the Depositor.
(vii) Neither the Distribution Account nor the Securities Account is
in the name of any person other than the Trustee.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the Trust Fund to the
Trustee. Upon discovery by the Depositor or a Responsible Officer of the
Trustee of a breach of any of the foregoing representations and warranties
which breach materially and adversely affects the interests of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the other party and to the Rating Agencies.
Section 2.05 Issuance of Certificates. The Trustee acknowledges the
receipt by it of the Deposited Underlying Certificates and concurrently with
such receipt, the Trustee has duly executed on behalf of the Trust Fund,
authenticated and delivered, to or upon the written order of
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the Depositor, the Certificates in authorized denominations and registered in
such names as the Depositor has directed in writing.
Section 2.06 REMIC Matters. The Preliminary Statement sets forth the
designations and "latest possible maturity date" for federal income tax
purposes of all interests created hereby. The "Startup Day" for purposes of the
REMIC Provisions shall be the Closing Date. The "tax matters person" with
respect to each REMIC hereunder shall be the Trustee. Each REMIC's fiscal year
shall be the calendar year.
Section 2.07 Presentation for Transfer. On the Closing Date, the
Underlying Certificate Seller, the Depositor and/or the Trustee (as
appropriate) shall present the documents described in Section 2.01 for
registration of transfer of the Deposited Underlying Certificates to the
Trustee, pursuant to the requirements under the Underlying Agreement.
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ARTICLE III
ADMINISTRATION OF THE TRUST FUND;
PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01 Defaults by the Underlying Trust. In connection with its
receipt of any distribution on the Deposited Underlying Certificates on any
Distribution Date, if (i) the amount of any distribution varies from the amount
due thereon pursuant to the terms of the Underlying Agreement, (ii) the Trustee
shall not have received a distribution by the close of business on such
Distribution Date, or (iii) a Responsible Officer of the Trustee shall gain
actual knowledge of any default under the Underlying Agreement, the Trustee
shall promptly notify the Depositor, the Underlying Certificate Seller and the
Certificateholders, and shall, subject to the provisions of Sections 5.01 and
5.02 of Article V hereof, pursue such remedies as may be available to it as
holder of such Deposited Underlying Certificates in accordance with the terms
of the Underlying Agreement.
Section 3.02 Distribution Account and Securities Account. (a) The
Trustee, for the benefit of the Certificateholders, shall establish and
maintain an account (the "Distribution Account") at the Bank, which shall be an
Eligible Account, entitled "Indy Mac MBS, Inc. Residential Asset Securitization
Trust 2004-R2." The Distribution Account shall be maintained as a "deposit
account" (as defined in Section 9-102(a)(29), bearing a designation clearly
indicating that the account and all funds deposited in it are held for the
exclusive benefit of the Certificateholders. All amounts on deposit in the
Distribution Account shall remain uninvested. Deutsche Bank hereby confirms the
following with respect to the Distribution Account: (A) the Distribution
Account shall be established and maintained as a "deposit account" (as defined
in Section 9-102(a)(29) of the UCC), (B) Deutsche Bank is an organization
engaged in the business of banking and is acting in such capacity (in such
capacity, the "Bank") in maintaining the Distribution Account and (C) the
Trustee is the Bank's sole "customer" (within the meaning of Section 9-104 of
the UCC) with respect to the Distribution Account (other than the Securities
Account). Notwithstanding anything to the contrary and for the avoidance of
doubt, if at any time the Bank shall receive any instructions originated by the
Trustee directing the disposition of funds in the Distribution Account, the
Bank shall comply with such instructions without further consent by the
Depositor, the Underlying Certificate Seller or any other Person.
Notwithstanding anything to the contrary, the Bank's "jurisdiction" (within the
meaning of Section 9-304 of the UCC) is the State of New York.
The Distribution Account Property shall be Delivered to the Securities
Intermediary in accordance with the definition of "Delivery."
(b) By the date of this Indenture, the Indenture Trustee shall establish
an account (the "Securities Account") which shall be established and maintained
as a "securities account" as defined in Section 8-501 of the UCC to which
financial assets are or may be credited, (B) Deutsche Bank shall act in the
capacity of a "Securities Intermediary" as defined in of Section 8-102(a)(14)
of the UCC (in such capacity, the "Securities Intermediary") with respect to
the Securities Account, and (C) the Securities Intermediary shall treat the
Trustee as the sole "entitlement holder" within the meaning of Section
8-102(a)(7) of the Securities Account and the
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sole Person entitled to exercise the rights that comprise any financial asset
credited to the Securities Account.
The Securities Account Property shall be Delivered to the Securities
Intermediary in accordance with the definition of "Delivery."
(c) Notwithstanding anything to the contrary and for the avoidance of
doubt, if at any time the Securities Intermediary shall receive any
notifications or entitlement orders from the Trustee directing it to transfer
or redeem any financial asset or other property relating to the Securities
Account, the Securities Intermediary shall comply with such notification or
other entitlement order without further consent by the Depositor or any other
Person. Notwithstanding anything to the contrary, the Securities Intermediary's
jurisdiction (as defined in Section 8-110 of the UCC) shall be the State of New
York.
(d) The Trustee shall upon receipt deposit in the Distribution Account
the following payments and collections in respect of the Deposited Underlying
Certificates:
(i) all distributions due and received on the Deposited Underlying
Certificates after August 25, 2004; and
(ii) any amount required to be deposited in the Distribution Account
pursuant to Section 2.03(a) hereof in connection with the repurchase of a
Deposited Underlying Certificate by the Underlying Certificate Seller.
(e) Upon a determination by the Trustee that the final distribution shall
be made in respect of a Deposited Underlying Certificate, the Trustee shall
take such steps as may be necessary in connection with the final payment
thereon in accordance with the terms and conditions of the Underlying
Agreement. The Trustee shall promptly deposit in the Distribution Account the
final distribution received upon presentment and surrender of the affected
Deposited Underlying Certificate.
(f) The Depositor shall give written notice to the Trustee, the
Underlying Certificate Seller and each Rating Agency of any proposed change of
the location of the Distribution Account or the Securities Account prior to any
change thereof.
(g) If the Bank or the Securities Intermediary has or subsequently
obtains by agreement, operation of law, or otherwise a security interest in the
Distribution Account or the Securities Account, each of the Bank and the
Securities Intermediary hereby agrees that the security interest shall be
subordinate to the security interest of the Trustee for the benefit of the
Certificateholders.
(h) In order to comply with its duties under the USA Patriot Act of 2001,
the Trustee shall obtain and verify certain information and documentation from
other parties to this Agreement, including, but not limited to, such parties'
name, address and other identifying information.
Section 3.03 Permitted Withdrawals From the Distribution Account. The
Trustee may from time to time withdraw funds from the Distribution Account for
the following purposes:
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(a) to make payments to Certificateholders in the amounts and in the
manner provided in Section 3.04;
(b) to reimburse itself and the Depositor for expenses incurred by and
reimbursable to itself or the Depositor with respect to each REMIC hereunder
pursuant to Section 5.06 and Section 6.03, respectively;
(c) to pay any taxes imposed upon each REMIC hereunder, as provided in
Section 5.12; and
(d) to clear and terminate the Distribution Account upon the termination
of the Trust Fund.
Section 3.04 Distributions.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account the Available Funds for such Distribution Date and apply
such funds to the distributions of interest on the Certificates, in the
following order of priority:
(i) concurrently, to each Class of Certificates, an amount equal to
the related Class Optimal Interest Distribution Amount, any shortfall
being allocated among such Classes in proportion to the amount of the
Class Optimal Interest Distribution Amount that would have been
distributed in the absence of such shortfall; provided, however, that on
each Distribution Date up to and including the Accrual Termination Date,
the Accrual Amount will be distributed to the Class A-2 Certificates,
until its Class Certificate Balance is reduced to zero;
(ii) to the Class A-R Certificates, until its Class Certificate
Balance is reduced to zero;
(iii) concurrently, to the Class A-1 and Class A-4 Certificates, pro
rata, until their respective Class Certificate Balances are reduced to
zero;
(iv) sequentially, to the Class A-2 and Class A-3 Certificates, in
that order, until their respective Class Certificate Balances are reduced
to zero; and
(v) the amount remaining (if any) to the Holder of the Class A-R
Certificate.
Notwithstanding the priorities set forth in this Section 3.04(a), on each
Distribution Date on and after the Underlying Senior Credit Support Depletion
Date, Available Principal Funds will be distributed, concurrently as principal
to the Classes of Certificates, pro rata, in accordance with their respective
Class Certificate Balances immediately before that Distribution Date.
(b) On each Distribution Date, Available Interest Funds and Available
Principal Funds shall each be distributed on the Subsidiary REMIC Regular
Interests, in each case in an amount sufficient to make the distributions to
the Corresponding Classes of Certificates on such Distribution Date in
accordance with the provisions of Sections 3.04(a).
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(c) On each Distribution Date, the amount referred to in clause (i) of
the definition of Class Optimal Interest Distribution Amount for each Class of
Certificates for such Distribution Date shall be reduced by such Class's pro
rata share (based on interest then due and payable to such Class) of Allocated
Underlying Net Interest Shortfalls for such Distribution Date.
(d) If Subsequent Recoveries have been received with respect to an
Underlying Liquidated Mortgage Loan and are applied to increase the Class
Certificate Balance of the Deposited Underlying Certificates, that amount will
be applied pro rata to increase the Class Certificate Balance of each Class of
Certificates to which Realized Losses have been allocated, but in each case by
not more than the amount of Realized Losses previously allocated to that Class
of Certificates pursuant to Section 3.06. Holders of such Certificates will not
be entitled to any payment in respect of the Class Optimal Interest
Distribution Amount on the amount of such increases for any Interest Accrual
Period preceding the Distribution Date on which such increase occurs. Any such
increases shall be applied pro rata to the Certificate Balance of each
Certificate of such Class.
Section 3.05 Reserved.
Section 3.6 Allocation of Realized Losses.
(a) On or prior to the beginning of the second Business Day prior to each
Distribution Date, the Trustee shall determine the total amount of Allocated
Underlying Realized Losses for such Distribution Date. The Trustee shall make
such determination on the basis of amounts on deposit in the Underlying
Certificate Account (which Underlying Certificate Account it holds as
Underlying Trustee) or on the basis of the agreement referred to in the last
sentence of Section 5.07.
(b) Allocated Underlying Realized Losses with respect to any Distribution
Date shall be allocated to the Certificates, pro rata on the basis of their
respective Class Certificate Balances until the respective Class Certificate
Balance of each such Class is reduced to zero.
(c) Any Allocated Underlying Realized Loss allocated to a Class of
Certificates or any reduction in the Class Certificate Balance of a Class of
Certificates pursuant to Section 3.06(b) above shall be allocated among the
Certificates of such Class in proportion to their respective Certificate
Balances.
(d) Any allocation of Allocated Underlying Realized Losses to a
Certificate or any reduction in the Certificate Balance of a Certificate,
pursuant to Section 3.06(a) above shall be accomplished by reducing the
Certificate Balance thereof immediately following the distributions made on the
related Distribution Date in accordance with the definition of "Certificate
Balance."
Section 3.07 Determination of Pass-Through Rates for LIBOR Certificates.
(a) On each Interest Determination Date so long as any LIBOR Certificates
are outstanding, the Trustee will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. dollars as found on Telerate page 3750 as of 11:00 a.m. London time on
each LIBOR Determination Date. "Telerate Page
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3750" means the display page currently so designated on the Moneyline Telerate
Service (formerly the Dow Xxxxx Markets) (or such other page as may replace
that page on that service for the purpose of displaying comparable rates or
prices).
(b) If on any Interest Determination Date, LIBOR cannot be determined as
provided in paragraph (A) of this Section 4.08, the Trustee shall either (i)
request each Reference Bank to inform the Trustee of the quotation offered by
its principal London office for making one-month United States dollar deposits
in leading banks in the London interbank market, as of 11:00 a.m. (London time)
on such Interest Determination Date or (ii) in lieu of making any such request,
rely on such Reference Bank quotations that appear at such time on the Reuters
Screen LIBO Page (as defined in the International Swap Dealers Association Inc.
Code of Standard Wording, Assumptions and Provisions for Swaps, 1986 Edition),
to the extent available. LIBOR for the next Interest Accrual Period will be
established by the Trustee on each interest Determination Date as follows:
(i) If on any Interest Determination Date two or more Reference Banks
provide such offered quotations, LIBOR for the next applicable Interest
Accrual Period shall be the arithmetic mean of such offered quotations
(rounding such arithmetic mean upwards if necessary to the nearest whole
multiple of 1/32%).
(ii) If on any Interest Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period shall be whichever is the higher of (i) LIBOR as
determined on the previous Interest Determination Date or (ii) the Reserve
Interest Rate. The "Reserve Interest Rate" shall be the rate per annum
which the Trustee determines to be either (i) the arithmetic mean (rounded
upwards if necessary to the nearest whole multiple of 1/32%) of the
one-month United States dollar lending rates that New York City banks
selected by the Trustee are quoting, on the relevant Interest
Determination Date, to the principal London offices of at least two of the
Reference Banks to which such quotations are, in the opinion of the
Trustee, being so made, or (ii) in the event that the Trustee can
determine no such arithmetic mean, the lowest one-month United States
dollar lending rate which New York City banks selected by the Trustee are
quoting on such Interest Determination Date to leading European banks.
(iii) If on any Interest Determination Date the Trustee is required
but is unable to determine the Reserve Interest Rate in the manner
provided in paragraph (b) above, LIBOR for the related Classes of
Certificates shall be LIBOR as determined on the preceding applicable
Interest Determination Date.
Until all of the LIBOR Certificates are paid in full, the Trustee will at
all times retain at least four Reference Banks for the purpose of determining
LIBOR with respect to each Interest Determination Date. The Underlying
Certificate Seller initially shall designate the Reference Banks. Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Trustee and shall have an
established place of business in London. If any such Reference Bank should be
unwilling or unable to act as such or if the Underlying Certificate Seller
should terminate its appointment as Reference Bank, the Trustee shall promptly
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appoint or cause to be appointed another Reference Bank. The Trustee shall have
no liability or responsibility to any Person for (i) the selection of any
Reference Bank for purposes of determining LIBOR or (ii) any inability to
retain at least four Reference Banks which is caused by circumstances beyond
its reasonable control.
(c) The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Trustee on each Interest
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement.
In determining LIBOR, any Pass-Through Rate for the LIBOR Certificates,
any Interest Settlement Rate, or any Reserve Interest Rate, the Trustee may
conclusively rely and shall be protected in relying upon the offered quotations
(whether written, oral or on the Dow Xxxxx Markets) from the BBA designated
banks, the Reference Banks or the New York City banks as to LIBOR, the Interest
Settlement Rate or the Reserve Interest Rate, as appropriate, in effect from
time to time. The Trustee shall not have any liability or responsibility to any
Person for (i) the Trustee's selection of New York City banks for purposes of
determining any Reserve Interest Rate or (ii) its inability, following a
good-faith reasonable effort, to obtain such quotations from, the BBA
designated banks, the Reference Banks or the New York City banks or to
determine such arithmetic mean, all as provided for in this Section 3.07.
The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
Section 3.08 Statements to Certificateholders. Concurrently with each
distribution on a Distribution Date, the Trustee will make available to the
Holder of each Certificate and each Rating Agency on its website
(xxxxx://xxx.xxxxxxxxxxxxxx.xx.xxx/xxxx) a statement generally setting forth
the following information:
(i) Available Interest Funds and Available Principal Funds for such
Distribution Date, and the amount (if any) by which Available Principal
Funds has been reduced on account of the payment of certain expenses,
liabilities and taxes described in the definition thereof;
(ii) with respect to such Distribution Date, the aggregate amount of
principal and interest, stated separately, distributed to Holders of each
Class of Certificates;
(iii) with respect to such Distribution Date, the amount of any
interest shortfall for each Class of Certificates, together with the
amount of any unpaid interest shortfall for such Class immediately
following such Distribution Date;
(iv) with respect to each Class of Certificates, the losses allocated
to such Class with respect to such Distribution Date;
(v) the Class Certificate Balance of each Class of Certificates,
after giving effect to distributions of principal of such Certificates on
such Distribution Date; and
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(vi) any additional amount distributed to the Holder of the Class A-R
Certificate on such Distribution Date.
In addition, the Trustee will make available to Certificateholders copies
of the statements received by the Trustee as the holder of the Deposited
Underlying Certificates on behalf of the Trust Fund on its website as specified
in this Section 3.08.
Within a reasonable period of time after the end of each calendar year,
the Trustee will prepare and deliver to each person who at any time during the
previous calendar year was a Certificateholder of record a statement containing
the information required to satisfy any requirements of the Code, the REMIC
Provisions and regulations thereunder as from time to time are in force. For
purposes of this Section 3.08, the Trustee's duties are limited to the extent
that adequate information is reasonably available to the Trustee as described
herein.
Section 3.09 Reports of the Trustee; Distribution Account. Upon written
request of a Certificateholder or Certificate Owner and at the expense of such
Certificateholder or Certificate Owner, the Trustee shall make available to
Certificateholders or Certificate Owners within 15 days after the date of
receipt of such request a statement setting forth the status of the
Distribution Account as of the close of business on the last day of the
calendar month immediately preceding such request, and showing, for the period
covered by such statement, the aggregate of deposits into and withdrawals from
the Distribution Account.
Section 3.10 Access to Certain Documentation and Information. The Trustee
shall provide the related Certificateholders or Certificate Owners with access
to a copy of each report, if any, received by it as holder of the Deposited
Underlying Certificates under the Underlying Agreement. The Trustee shall also
provide the Depositor, the Underlying Certificate Seller with access to any
such report and to all written reports, documents and records required to be
maintained by the Trustee in respect of its duties hereunder. Such access shall
be afforded without charge but only upon reasonable request evidenced by prior
written notice received by the Trustee two Business Days prior to the date of
such proposed access and during normal business hours of the Trustee at offices
designated by the Trustee.
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ARTICLE IV
THE CERTIFICATES
Section 4.01 The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum denomination) and aggregate denominations per
Class set forth in the Preliminary Statement.
Subject to Section 7.01 hereof respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder at a
bank or other entity having appropriate facilities therefor, if such Holder has
so notified the Trustee at least five Business Days prior to the related Record
Date or (y) by check mailed by first class mail to such Certificateholder at
the address of such holder appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trust Fund by an authorized officer of the Trustee upon the
written direction of the Depositor. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
were affixed, authorized to sign on behalf of the Trustee shall bind the
Trustee, notwithstanding that such individuals or any of them have ceased to be
so authorized prior to the countersignature and delivery of such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless authenticated by the Trustee by manual signature, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their authentication. On the
Closing Date, the Trustee shall authenticate the Certificates to be issued at
the direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee on a
continuous basis, an adequate inventory of Certificates to facilitate
transfers.
Section 4.02 Certificate Register; Registration of Transfer and Exchange
of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in accordance
with the provisions of Section 4.06 hereof, a Certificate Register for the
Trust Fund in which, subject to the provisions of subsections (b) and (c) below
and to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. Upon surrender for registration of transfer of
any Certificate, the Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
33
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance with
the Trustee's customary procedures.
(b) [reserved]
(c) No transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received either (i) a representation from the transferee
of such Certificate acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA or a plan or arrangement subject to
Section 4975 of the Code, nor a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement to effect such
transfer, (ii) a representation that the purchaser is an insurance company
which is purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates satisfy the requirements for exemptive relief
under Sections I and III of PTCE 95-60 or (iii) in the case of any
ERISA-Restricted Certificate presented for registration in the name of an
employee benefit plan subject to ERISA, or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan or arrangement, or using such plan's or arrangement's assets,
an Opinion of Counsel satisfactory to the Trustee, which Opinion of Counsel
shall not be an expense of either the Trustee or the Trust Fund, addressed to
the Trustee to the effect that the purchase and holding of such
ERISA-Restricted Certificate will not result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code and will not
subject the Trustee to any obligation in addition to those expressly undertaken
in this Agreement or to any liability. For purposes of the preceding sentence,
with respect to an ERISA-Restricted Certificate that is not a Residual
Certificate, in the event the representation letter referred to in the
preceding sentence is not so furnished, such representation shall be deemed to
have been made to the Trustee by the transferee's (including an initial
acquirer's) acceptance of the ERISA-Restricted Certificates. Notwithstanding
anything else to the contrary herein, any purported transfer of an
ERISA-Restricted Certificate to or on behalf of an employee benefit plan
subject to ERISA or to Section 4975 of the Code without the delivery to the
Trustee of an Opinion of Counsel satisfactory to the Trustee as described above
shall be void and of no effect.
34
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 4.02(c) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(d) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee substantially in the form attached hereto as Exhibit F.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Residual Certificate in violation of the provisions of this Section
4.02(d) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
4.02(d), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 4.02(c) and this
Section 4.02(d) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit and Transferor
Certificate. The Trustee shall be entitled but not obligated to recover
from any Holder of a Residual Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time as
it became other than a Permitted Transferee, all payments made on such
Residual
35
Certificate at and after either such time. Any such payments so recovered
by the Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in this
Section 4.02(d) shall cease to apply (and the applicable portions of the legend
on a Residual Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of
Counsel shall not be an expense of the Trust Fund, the Trustee, the Underlying
Certificate Seller or the Depositor, to the effect that the elimination of such
restrictions will not cause any REMIC hereunder to fail to qualify as a REMIC
at any time that the Certificates are outstanding or result in the imposition
of any tax on the Trust Fund, a Certificateholder or another Person. Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
hereby consents to any amendment of this Agreement which, based on an Opinion
of Counsel furnished to the Trustee, is reasonably necessary (a) to ensure that
the record ownership of, or any beneficial interest in, a Residual Certificate
is not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(e) The preparation and delivery of all certificates and opinions
referred to above in this Section 4.02(e) in connection with transfer shall be
at the expense of the parties to such transfers.
(f) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may conclusively rely and shall be fully protected in relying
upon information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository
Participant or brokerage firm
36
representing such Certificate Owner. Each Depository Participant shall only
transfer Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor or (y) the Depositor at its option advises the
Trustee in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the
instructions from the Depository for registration, the Trustee shall issue the
Definitive Certificates. Neither the Depositor nor the Trustee shall be liable
for any delay in delivery of such instruction and each may conclusively rely
on, and shall be protected in relying on, such instructions. The Depositor
shall provide the Trustee with an adequate inventory of certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates all references herein to obligations
imposed upon or to be performed by the Depository shall be deemed to be imposed
upon and performed by the Trustee, to the extent applicable with respect to
such Definitive Certificates and the Trustee shall recognize the Holders of the
Definitive Certificates as Certificateholders hereunder; provided that the
Trustee shall not by virtue of its assumption of such obligations become liable
to any party for any act or failure to act of the Depository.
Section 4.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and (b) there is delivered to the Depositor and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee that such Certificate
has been acquired by a bona fide purchaser, the Trustee shall execute,
countersign and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 4.03, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and its counsel) connected therewith. Any replacement Certificate
issued pursuant to this Section 4.03 shall constitute complete and indefeasible
evidence of ownership, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 4.04 Persons Deemed Owners.
The Depositor, the Trustee and any agent of the Depositor or the Trustee
may treat the Person in whose name any Certificate is registered as the owner
of such Certificate for the purpose of receiving distributions as provided in
this Agreement and for all other purposes whatsoever, and neither the
Depositor, the Trustee nor any agent of the Depositor or the Trustee shall be
affected by any notice to the contrary.
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Section 4.05 Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders or Certificate Owners (a) request
such information in writing from the Trustee, (b) state that such
Certificateholders or Certificate Owners desire to communicate with other
Certificateholders or Certificate Owners with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders or Certificate Owners propose to
transmit, or if the Depositor shall request such information in writing from
the Trustee, then the Trustee shall, within ten Business Days after the receipt
of such request, provide the Depositor or such Certificateholders or
Certificate Owners at such recipients' expense the most recent list of the
Certificateholders of such Trust Fund held by the Trustee, if any. The
Depositor and every Certificateholder or Certificate Owner, by receiving and
holding a Certificate, agree that the Trustee shall not be held accountable by
reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 4.06 Maintenance of Office or Agency. The Trustee will maintain
or cause to be maintained at its expense an office or offices or agency or
agencies in New York City where Certificates may be surrendered for
registration of transfer or exchange. The Trustee initially designates the
office of its agent, located at DTC Transfer Services, 00 Xxxxx Xxxxxx,
Xxxxxxxx Xxxx Entrance, Xxx Xxxx, Xxx Xxxx 00000 for such purposes. The Trustee
will give prompt written notice to the Certificateholders of any change in such
location of any such office or agency.
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ARTICLE V
CONCERNING THE TRUSTEE
Section 5.01 Duties of Trustee.
The Trustee shall undertake to perform such duties and only such duties
as are specifically set forth in this Agreement.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they appear
on their face to be in the form required by this Agreement; provided, however,
that the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it believed in good
faith to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be conclusively determined by a court of competent jurisdiction
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of Holders of Certificates evidencing not less than 25% of the Voting
Rights of Certificates relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Agreement.
Section 5.02 Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 5.01:
(i) the Trustee may request and conclusively rely upon and shall be fully
protected in acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond
or other paper or document believed by it to be genuine and to have been signed
39
or presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(iv) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing so to do by Holders of Certificates
evidencing not less than 25% of the Voting Rights allocated to each Class of
Certificates;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, nominees,
custodians, accountants, attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent, nominee, custodian,
attorney or accountant appointed with due care by it hereunder;
(vi) the Trustee shall not be required to risk or expend its own funds or
otherwise incur any financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers hereunder if it shall have
reasonable grounds for believing that repayment of such funds or indemnity
reasonably satisfactory to it against such risk or liability is not assured to
it;
(vii) the Trustee shall not be liable for any loss on any investment of
funds pursuant to this Agreement;
(viii) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have offered
to the Trustee reasonable security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities which may be incurred therein or
thereby;
(ix) whenever in the administration of this Agreement the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, conclusively rely upon an Officers' Certificate;
(x) the Trustee shall not be deemed to have notice of any breach by the
Underlying Certificate Seller of any representation, warranty or covenant or
any default or event of default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice
40
of any event which is in fact such a default or breach is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Certificates and this Agreement;
(xi) Neither, the Trustee nor any of its officers, directors, employees
or agents shall be liable for any action taken or omitted under this Agreement
or in connection therewith except to the extent caused by the Trustee's
negligence or willful misconduct, as determined by the final judgment of a
court of competent jurisdiction, no longer subject to appeal or review.
Anything in this Agreement to the contrary notwithstanding, in no event shall
the Trustee be liable for special, indirect or consequential loss or damage of
any kind whatsoever (including, but not limited to, lost profits), even if the
Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;
(xii) In the event that the Trustee is also acting as Securities
Intermediary and Bank hereunder, the rights, protections, immunities and
indemnities afforded to the Trustee pursuant to this Article V shall be
afforded to the Securities Intermediary and Bank; and
(xiii) The Trustee shall have no duty to monitor the performance of the
Depositor or the Underlying Certificate Seller nor shall it have any liability
(in its capacity as Trustee) in connection with the malfeasance or nonfeasance
by the Depositor or the Underlying Certificate Seller.
All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of such Certificates, or the production thereof at the trial
or other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
Section 5.03 Trustee Not Liable for Certificates or Deposited Underlying
Certificates. The recitals contained herein and in the Certificates shall be
taken as the statements of the Depositor or the Underlying Certificate Seller,
as the case may be, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Deposited
Underlying Certificates or related document other than with respect to the
Trustee's execution and counter-signature of the Certificates. The Trustee
shall not be accountable for the use or application by the Depositor or the
Underlying Certificate Seller of any funds paid to the Depositor or the
Underlying Certificate Seller in respect of the Deposited Underlying
Certificates.
Section 5.04 Trustee May Own Certificates. The Trustee in its individual
or any other capacity may become the owner or pledgee of Certificates with the
same rights as it would have if it were not the Trustee.
Section 5.05 Trustee's Fees and Expenses. The Trustee acknowledges that
on the Closing Date it will receive compensation for all services rendered by
it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder as specified in a
separate fee schedule between the Trustee and the Underlying Certificate
Seller. The Trustee shall be entitled reimbursement upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any
41
of the provisions hereof or any other documents executed in connection herewith
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all persons not regularly in its employ).
The obligations of the Underlying Certificate Seller under this Section 5.05 to
compensate the Trustee and to pay or reimburse the Trustee for reasonable
expenses, disbursements and advances shall survive the satisfaction and
discharge of this Agreement and the earlier resignation or removal of the
Trustee.
Section 5.06 Indemnification of the Trustee. The Underlying Certificate
Seller shall indemnify and defend the Trustee and any director, officer,
employee, or agent of the Trustee and hold them harmless from and against, any
and all losses, liabilities, damages, claims or expenses arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder (including, without limitation, any losses, liabilities, damages,
claims or expenses arising from defending itself against any claim or liability
in connection with the exercise or performance of any powers or duties
hereunder), other than those resulting from the negligence or bad faith in the
performance of any of the Trustee's duties hereunder or by reason of reckless
disregard of the Trustee's obligations and duties hereunder. Such
indemnification shall survive the termination of this Agreement and the Trust
Fund created hereby or the resignation or removal of the Trustee pursuant to
the terms hereof.
Section 5.07 Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be a corporation or association organized and doing business
under the laws of a state or the United States of America, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
federal or state authority and with a credit rating which would not cause
either of the Rating Agencies to reduce their respective then current ratings
of the Certificates (or having provided such security from time to time as is
sufficient to avoid such reduction). If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 5.07 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 5.07, the Trustee shall resign immediately in the
manner and with the effect specified in Section 5.08 hereof. The entity serving
as Trustee may have normal banking and trust relationships with the Depositor
and its affiliates and with the Underlying Certificate Seller and its
affiliates; provided, however, that such entity cannot be an affiliate of the
Depositor or the Underlying Certificate Seller. The Trustee hereunder shall at
all times be the same Person as the Underlying Trustee or shall have an
agreement with the Underlying Trustee to have access to the information
relating to the Underlying Certificate Account in order to enable the Trustee
to perform its duties under Section 3.06(a).
Section 5.08 Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Underlying Certificate Seller and each Rating Agency not less than 60 days
before the date specified in such notice when, subject to Section 5.09, such
resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 5.09 meeting the qualifications set forth in Section
5.07. If no successor
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trustee meeting such qualifications shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.07 hereof and shall fail to resign after written
request thereto by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a
tax is imposed with respect to the Trust Fund by any state in which the Trustee
or the Trust Fund is located and the imposition of such tax would be avoided by
the appointment of a different trustee, then the Depositor may remove the
Trustee and appoint a successor trustee by written instrument, in triplicate,
one copy of which instrument shall be delivered to the Trustee, one copy of
which shall be delivered to the Depositor and one copy to the successor
trustee.
The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered by the successor Trustee to the Depositor, one complete set to the
Trustee so removed and one complete set to the successor so appointed. Notice
of any removal of the Trustee shall be given to each Rating Agency and the
Underlying Certificate Seller by the successor trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 5.08 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 5.09 hereof.
Section 5.09 Successor Trustee.
Any successor trustee appointed as provided in Section 5.08 hereof shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Depositor an instrument accepting such appointment hereunder
and thereupon the resignation or removal of the predecessor trustee shall
become effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor and the predecessor trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for more fully and certainly vesting and confirming in the
successor trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this Section
5.09 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 5.07 hereof and its appointment shall
not adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in this
Section 5.09, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of
43
Certificates. If the Depositor fails to mail such notice within 10 days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Depositor.
Section 5.10 Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall be eligible
under the provisions of Section 5.07 hereof without the execution or filing of
any paper or further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 5.11 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 Trust Fund at the time be located, the Depositor and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund or any part thereof, whichever
is applicable, and, subject to the other provisions of this Section 5.11, such
powers, duties, obligations, rights and trusts as the Depositor and the Trustee
may consider necessary or desirable. If the Depositor shall not have joined in
such appointment within 15 days after the receipt by it of a request to do so,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 5.07 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 5.09.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this Section
5.11, all rights, powers, duties and obligations conferred or imposed upon the
Trustee shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Depositor hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;
44
(ii) No trustee hereunder shall be held personally liable by reason of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee; and
(iii) The Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the separate trustees and co-trustees, when and
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article V. 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 Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Trustee, to the extent permitted by law, without the appointment of a
new or successor trustee.
Section 5.12 Tax Matters.
It is intended that the assets with respect to which any REMIC election
is to be made, as set forth in the Preliminary Statement, shall constitute, and
that the conduct of matters relating to such assets shall be such as to qualify
such assets as, a "real estate mortgage investment conduit" as defined in and
in accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of any such REMIC and that in such
capacity it shall: (a) prepare and file, or cause to be prepared and filed, in
a timely manner, a U.S. Real Estate Mortgage Investment Conduit Income Tax
Return (Form 1066 or any successor form adopted by the Internal Revenue
Service) and prepare and file or cause to be prepared and filed with the
Internal Revenue Service and applicable state or local tax authorities income
tax or information returns for each taxable year with respect to any such
REMIC, containing such information and at the times and in the manner as may be
required by the Code or state or local tax laws, regulations, or rules, and
furnish or cause to be furnished to Certificateholders the schedules,
statements or information at such times and in such manner as may be required
thereby; (b) within thirty days of the Closing Date, furnish or cause to be
furnished to the Internal Revenue Service, on Forms 8811 or as otherwise may be
required by the Code, the name, title, address, and telephone number of the
person that the holders of the Certificates may contact for tax information
relating thereto, together with such additional information as may be required
by such Form, and update such information at the time or times in the manner
required by the Code; (c) make or cause to be made elections that such assets
be treated as a REMIC on the federal tax return for its first
45
taxable year (and, if necessary, under applicable state law); (d) prepare and
forward, or cause to be prepared and forwarded, to the Certificateholders and
to the Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including without limitation, the
calculation of any original issue discount using the Prepayment Assumption; (e)
provide information necessary for the computation of tax imposed on the
transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
non-Permitted Transferee, or a pass-through entity in which a non-Permitted
Transferee is the record holder of an interest (the reasonable cost of
computing and furnishing such information may be charged to the Person liable
for such tax); (f) to the extent that they are under its control conduct
matters relating to such assets at all times that any Certificates are
outstanding so as to maintain the status of any REMIC as a REMIC under the
REMIC Provisions; (g) not knowingly or intentionally take any action or omit to
take any action that would cause the termination of the REMIC status of any
REMIC; (h) pay, from the sources specified in the last paragraph of this
Section 5.12, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any such REMIC prior to its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings); (i) ensure that federal, state or local income tax or
information returns shall be signed by the Trustee or such other person as may
be required to sign such returns by the Code or state or local laws,
regulations or rules; (j) maintain records relating to any such REMIC,
including but not limited to the income, expenses, assets and liabilities
thereof and the fair market value and adjusted basis of the assets determined
at such intervals as may be required by the Code, as may be necessary to
prepare the foregoing returns, schedules, statements or information; and (k) as
and when necessary and appropriate, represent any such REMIC in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of any such REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of any such REMIC, and otherwise act on behalf of any such REMIC in
relation to any tax matter or controversy involving it.
In order to enable the Trustee to perform its duties as set forth herein,
the Depositor and the Underlying Certificate Seller shall provide, or cause to
be provided, to the Trustee within ten (10) days after the Closing Date all
information or data that the Trustee requests in writing and determines to be
relevant for tax purposes to the valuations and offering prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flows of the Certificates and the Deposited
Underlying Certificate. Thereafter, the Depositor and the Underlying
Certificate Seller shall provide to the Trustee promptly upon written request
therefor, any such additional information or data that the Trustee may, from
time to time, reasonably request in order to enable the Trustee to perform its
duties as set forth herein. The Underlying Certificate Seller hereby
indemnifies the Trustee for any losses, liabilities, damages, claims or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor or the Underlying
Certificate Seller to provide, or to cause to be provided, accurate information
or data to the Trustee on a timely basis.
46
In the event that any tax is imposed on "prohibited transactions" of any
REMIC hereunder as defined in Section 860F(a)(2) of the Code, on the "net
income from foreclosure property" of any REMIC hereunder as defined in Section
860G(c) of the Code, on any contribution to such REMIC after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed,
including, without limitation, any minimum tax imposed upon the REMIC hereunder
pursuant to Sections 23153 and 24874 of the California Revenue and Taxation
Code, if not paid as otherwise provided for herein, such tax shall be paid by
(i) the Trustee, if any such other tax arises out of or results from a breach
by the Trustee of any of its obligations under this Agreement, (ii) the
Depositor, in the case of any such minimum tax, or if such tax arises out of or
results from a breach by the Depositor of any of its obligations under this
Agreement, (iii) the Underlying Certificate Seller, if any such tax arises out
of or results from the Underlying Certificate Seller's obligation to repurchase
the Deposited Underlying Certificates pursuant to Section 2.03 or (iv) in all
other cases, or in the event that the Trustee, the Depositor or the Underlying
Certificate Seller fails to honor its obligations under the preceding clauses
(i),(ii) or (iii), any such tax will be paid with amounts otherwise to be
distributed to the Certificateholders, as provided in Section 3.03.
Section 5.13 Filings. (a) The Trustee shall reasonably cooperate with the
Depositor in connection with the satisfaction of the reporting requirements
under the Exchange Act. The Trustee shall prepare on behalf of the Trust Fund
any Forms 8-K and 10-K customary for similar securities as required by the
Exchange Act and the Rules and Regulations of the Commission thereunder, and
shall file (via the Commission's Electronic Data Gathering and Retrieval
System) any Form 8-K on behalf of the Depositor. The Depositor hereby grants to
the Trustee a limited power of attorney to execute and file each such Form 8-K.
Such power of attorney shall continue until the earlier of (i) receipt by the
Trustee from the Depositor of written termination of such power of attorney and
(ii) the termination of the Trust Fund. The Depositor shall execute and the
Trustee shall file the Forms 10-K. The Trustee shall have no liability with
respect to any failure to properly prepare or file such periodic reports
resulting from or relating to the Trustee's inability or failure to obtain any
information not resulting from its own negligence or willful misconduct.
(b) Each Form 8-K shall be filed by the Trustee within 15 days after each
Distribution Date, with a copy of the statement to Certificateholders for such
Distribution Date as an exhibit thereto. Each Form 10-K (in substance as
required by applicable law or interpretations of the Commission) shall be filed
by the Trustee prior to March 30th of each year (or such earlier date as may be
required by the Exchange Act or the Rules and Regulations of the Commission).
The Trustee shall have no liability with respect to any failure to properly
prepare or file such periodic reports resulting from or relating to the
Trustee's inability or failure to obtain any information not resulting from its
own negligence or willful misconduct. Each Form 10-K shall be signed by an
appropriate officer of the Depositor and shall include the certification
required pursuant to the Xxxxxxxx-Xxxxx Act of 2002, as amended from time to
time, and any rules promulgated thereunder the by Commission (the "Required
Certification"), which certification shall be signed by an appropriate officer
of the Depositor. The Trustee shall have no responsibility for making any
Required Certification; provided, however, that upon the request of the
Depositor in connection with the delivery of the Required Certification on
behalf of the Trust Fund, the Trustee shall furnish to the Depositor a
certificate signed by an officer of the Trustee (the "Trustee Certification"),
which is attached as Exhibit A-2 to this Agreement. The Trustee shall
47
indemnify and hold harmless the Depositor and its respective officers and
directors from and against any and all losses, claims, expenses, damages or
liabilities, as and when such losses, claims, expenses, damages or liabilities
are incurred, insofar as such losses, claims, expenses, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement of any material fact contained in the Trustee Certification. The
Trustee shall prepare and deliver each Form 10-K to the Depositor for execution
no later than March 15th of each year and the Depositor shall return such
executed Form 10-K and an executed Required Certification to the Trustee for
filing no later than March 25th of each year.
(c) In addition, the Trustee shall sign a certification (in the form
attached hereto as Exhibit A) for the benefit of the Depositor and its
officers, directors and affiliates.
(d) Upon any filing with the Commission, the Trustee shall promptly
deliver to the Depositor a copy of any executed report, statement or
information.
(e) Prior to January 30th of the first year in which the Trustee is
eligible to do so under applicable law, the Trustee shall file under the
Exchange Act the Suspension Notification with respect to the Trust Fund. The
Trustee shall have no liability with respect to any failure to properly prepare
or file such periodic reports resulting from or relating to the Trustee's
inability or failure to obtain any information not resulting from its own
negligence or willful misconduct.
(f) In addition, the Trustee shall:
(i) until the filing of the Suspension Notification, file by means of
a Form 8-K within 15 days after each Distribution Date, a copy of the
monthly statement to holders of the Underlying Security. Such filings may
be included in the filings referred to in paragraph (b) above, or shall be
filed separately; and
(ii) file by means of a Form 10-K (until filing by form 10-K is no
longer required pursuant to Section 15(d) of the Exchange Act) executed by
the Depositor prior to March 30th of each year copies of the following
documents: (A) each monthly statement filed pursuant to paragraph (i)
above during the preceding calendar year; (B) the annual statement of
compliance pursuant to Section 3.17 of the Underlying Agreement; (C) the
annual accountant's servicing report pursuant to Section 3.18 of the
Underlying Agreement; (D) the statements and certifications required to be
made by the Depositor pursuant to Sections 6.04 or 6.05 hereof; and (E)
such other documents and certificates as the Depositor shall require. If
such documents, certificates or other required information have not been
delivered to the Trustee within a reasonable period of time before the
Trustee shall file the Form 10-K, the Trustee shall file an amended Form
10-K including such missing documents and information as exhibits
reasonably promptly after receipt of such items by the Trustee.
48
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liability of the Depositor. The Depositor shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
upon and undertaken by the Depositor herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor. The
Depositor will keep in full effect its existence, rights and franchises as a
corporation under the laws of the United States or under the laws of one of the
states thereof and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement to perform its duties under this Agreement.
Any Person into which the Depositor may be merged or consolidated, or any
Person resulting from any merger or consolidation to which the Depositor shall
be a party, or any person succeeding to the business of the Depositor, shall be
the successor of the Depositor hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 6.03 Limitation on Liability of the Depositor and Others. None of
the Depositor, or any of the directors, officers, employees or agents of the
Depositor shall be under any liability to the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor or any such Person against any breach
of representations or warranties made by it herein or protect the Depositor or
any such Person from any liability which would otherwise be imposed by reasons
of willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Depositor and any director, officer, employee or agent of the Depositor may
rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder. The
Depositor and any director, officer, employee or agent of the Depositor shall
be indemnified by the Trust Fund and held harmless against any loss, liability
or expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. The Depositor, shall be under no
obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or liability; provided, however, that the Depositor
may in its discretion undertake any such action that it may deem necessary or
desirable in respect of this Agreement and the rights and duties of the parties
hereto and interests of the Trustee and the Certificateholders hereunder. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust Fund,
and the Depositor shall be entitled to be reimbursed therefor out of the
Distribution Account.
49
Section 6.04. Annual Independent Accountants Report. The Depositor, at
its expense, shall cause a nationally recognized firm of independent public
accountants to furnish a statement to the Trustee on or before March 15, of
each year, commencing in 2005, to the effect that, with respect to the most
recently ended calendar year, such firm has examined certain records and
documents relating to the Depositor's and Trustee's performance of its
administrative obligations under this Agreement and that, on the basis of such
examination conducted substantially in compliance with the Review Procedure,
the firm is of the opinion that the Depositor's and the Trustee's activities
have been conducted in compliance with this Agreement, or that such examination
has disclosed no material items of noncompliance except for (i) such exceptions
as such firm believes to be immaterial or (ii) such other exceptions as are set
forth in such statement.
Section 6.05. Annual Officer's Certificate as to Compliance. The
Depositor shall deliver to the Trustee no later than the fifteenth of March of
each calendar year, commencing in March 2005, an officer's certificate,
certifying that with respect to the period ending on the immediately preceding
December 31: (i) an officer of the Depositor has reviewed the activities of the
Depositor and Trustee during the preceding calendar year or portion thereof and
its performance under this Agreement, or (ii) to the best of such officer's
knowledge, based on such review, the Depositor and Trustee have performed and
fulfilled their duties, responsibilities and obligations under this Agreement
in all material respects throughout such year, or, if there has been a default
in the fulfillment of any such duties, responsibilities or obligations,
specifying each such default known to such officer and the nature and status
thereof.
50
ARTICLE VII
TERMINATION
Section 7.01 Termination.
Subject to Section 7.03, the obligations and responsibilities of the
Depositor, the Underlying Certificate Seller and the Trustee created hereby
with respect to the Trust Fund shall terminate upon the later of (i) a
termination of the Underlying Trust pursuant to Article IX of the Underlying
Agreement, (ii) the receipt of the final distribution to be made on the
Deposited Underlying Certificates in accordance with the terms and conditions
of the Underlying Agreement and (iii) the distribution to Certificateholders of
all amounts required to be distributed pursuant to this Agreement. In no event
shall the trusts created hereby continue beyond the earlier of (i) the
expiration of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof and (ii) the Latest Possible Maturity Date.
Section 7.02 Final Distribution on the Certificates.
If the Trustee receives notice that the Underlying Trust is to be
terminated in accordance with the terms of the Underlying Agreement, notice
shall be given by the Trustee to Certificateholders as promptly as practicable
thereafter.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee by letter to Certificateholders mailed (x) not earlier than the 15th
day of the month next preceding the month of such final distribution and not
later than as promptly as practicable after the Trustee receives notice that
the Underlying Trust is to be terminated in accordance with the terms of the
Underlying Agreement. Any such notice shall specify (a) the Distribution Date
upon which final distribution on the Certificates will be made upon
presentation and surrender of Certificates at the office therein designated,
(b) the amount of such final distribution, (c) the location of the office or
agency at which such presentation and surrender must be made, and (d) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Trustee will also give such
notice to each Rating Agency at the time such notice is given to
Certificateholders.
Upon the final distribution with respect to the Trust Fund, the Trustee
shall promptly release to the Holder of the Class A-R Certificate the Deposited
Underlying Certificates.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in the order
set forth in Section 3.04. hereof, on the final Distribution Date in proportion
to their respective Percentage Interests, with respect to Certificateholders of
the same Class, an amount equal to (i) as to each Class of Regular
Certificates, the Certificate Balance thereof plus accrued interest thereon (or
on their Notional Amount, if applicable) in the case of an interest bearing
Certificate and (ii) as to the Residual
51
Certificates, the amount, if any, which remains on deposit in the Distribution
Account (other than the amounts retained to meet claims) after application
pursuant to clause (i) above.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Trustee may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation, the Class A-R
Certificateholder shall be entitled to all unclaimed funds and other assets of
the Trust Fund which remain subject hereto.
Section 7.03 [Reserved - REMIC Liquidation].
52
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01 Amendment. This Agreement may be amended from time to time
by the Depositor and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake; (ii) to correct any
defective provision therein or to supplement any provision therein which may be
inconsistent with any other provision therein; (iii) to conform this Agreement
to the final Prospectus Supplement provided to investors in accordance with the
initial offering of the Certificates; (iv) to add to the duties of the
Depositor; (v) to add any other provisions with respect to matters or questions
arising hereunder; or (vi) to modify, alter, amend, add to or rescind any of
the terms or provisions contained in this Agreement; provided, that any action
pursuant to clauses (v) or (vi) above shall not, as evidenced by an Opinion of
Counsel (which Opinion of Counsel shall not be an expense of the Trustee or the
Trust Fund), adversely affect in any material respect the interests of any
Certificateholder; provided, however, that the amendment shall not be deemed to
adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee and the Depositor also may at any time
and from time to time amend this Agreement without the consent of the
Certificateholders to modify, eliminate or add to any of its provisions to such
extent as shall be necessary or helpful to (i) maintain the qualification of
any REMIC as a REMIC under the Code, (ii) avoid or minimize the risk of the
imposition of any tax on any REMIC pursuant to the Code that would be a claim
at any time prior to the final redemption of the Certificates or (iii) comply
with any other requirements of the Code, provided that the Trustee has been
provided an Opinion of Counsel, which opinion shall be an expense of the party
requesting such opinion but in any case shall not be an expense of the Trustee
or the Trust Fund, to the effect that such action is necessary or helpful to,
as applicable, (i) maintain such qualification, (ii) avoid or minimize the risk
of the imposition of such a tax or (iii) comply with any such requirements of
the Code.
This Agreement may also be amended from time to time by the Depositor and
the Trustee with the consent of the Holders of a Majority in Interest of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
(i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating 66 2/3% or (iii)
reduce the aforesaid percentages of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders
of all such Certificates then outstanding.
53
Any amendment made pursuant to either of the preceding two paragraphs
that materially and adversely affects the rights of the Underlying Certificate
Seller shall not be made without the prior written consent of the Underlying
Certificate Seller.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which opinion shall not be an expense of the
Trustee or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on any REMIC or the Certificateholders or cause any REMIC
to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund) satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement and
that all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material respect
the interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 8.01.
Section 8.02 Action Under and Conflicts With the Underlying Agreement.
Subject to the terms hereof, in the event that there shall be any matters
arising under the Underlying Agreement which require the vote or direction of
the holders of the Deposited Underlying Certificates, the Trustee, as holder of
the Deposited Underlying Certificates, shall vote the Deposited Underlying
Certificates in accordance with instructions received from Holders of a
Majority in Interest of the related Class of Regular Certificates. In the
absence of any such instructions, the Trustee shall not vote; provided,
however, that, notwithstanding the absence of such instructions, if an Event of
Default for the Underlying Agreement has occurred and is continuing, the
Trustee shall, subject to the provisions of Article V hereof, pursue such
remedies as may be available to it as holder of such Deposited Underlying
Certificates in accordance with the terms of the Underlying Agreement.
Section 8.03 Recordation of Agreement. This Agreement (or an abstract
hereof, if acceptable by the applicable recording office) is subject to
recordation in all appropriate public offices, such recordation to be effected
by the Depositor at its expense if such recordation beneficially affects the
interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of
54
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
Section 8.04 Certain REMIC Matters. The Depositor, upon request, shall
promptly furnish the Trustee with all such information as may be reasonably
required in connection with the Trustee's preparation of all Tax Returns of any
REMIC created hereunder or to enable the Trustee to respond to reasonable
requests for information made by related Certificateholders in connection with
tax matters.
Section 8.05 Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of
an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless
there shall have been a failure to pay amounts due under this Agreement to the
Certificateholders and the Holders of Certificates evidencing not less than 25%
of the Voting Rights evidenced by the Certificates shall also have made written
request to the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and
intended, and being expressly covenanted by each Certificateholder with every
other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Agreement, except in the
manner herein provided and for the common benefit of all Certificateholders.
For the protection and enforcement of the provisions of this Section 8.05, each
and every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Section 8.06 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF
55
THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section 8.07 Notices. (a) The Trustee shall use its best efforts to
promptly provide notice to each Rating Agency with respect to each of the
following of which a Responsible Officer of the Trustee has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The resignation or termination of the Trustee and the appointment of
any successor;
3. The repurchase of the Deposited Underlying Certificates pursuant to
Section 2.03;
4. The final payment to Certificateholders; and
5. Any rating action involving the Deposited Underlying Certificates,
which notice shall be made by first-class mail within two Business
Days after a Responsible Officer of the Trustee gains actual
knowledge thereof.
In addition, the Trustee shall promptly make available to each Rating
Agency, the Underlying Certificate Seller copies of each report to
Certificateholders described in Section 3.08.
(b) All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given when delivered to (a) in the case of
the Depositor, IndyMac MBS, Inc., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxx Xxxxxxx; (b) in the case of the Underlying Certificate
Seller, Greenwich Capital Markets, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000 Attention: Legal Department; (c) in the case of the Trustee
to the Corporate Trust Office, Deutsche Bank National Trust Company, 0000 Xxxx
Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Trust
Administration IN04R2, or such other address as the Trustee may hereafter
furnish to the Depositor and (d) in the case of each of the Rating Agencies,
the address specified therefor in the definition corresponding to the name of
such Rating Agency. Notices to Certificateholders shall be deemed given when
mailed, first class postage prepaid, to their respective addresses appearing in
the Certificate Register.
Section 8.08 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
Section 8.09 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto, and all such provisions shall inure to the
benefit of the Certificateholders.
Section 8.10 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
56
Section 8.11 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 8.12 Protection of Assets.
(a) Except for transactions and activities entered into in connection
with the securitization that is the subject of this Agreement, the Trust Fund
created by this Agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell assets;
or
(iii) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid.
* * *
57
IN WITNESS WHEREOF, the Depositor, the Underlying Certificate Seller and
the Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
INDYMAC MBS, INC.,
as Depositor
By: /s/ Xxxxx Xxxxxxxx
------------------
Name: Xxxxx Xxxxxxxx
----------------
Title: Assistant Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By: /s/ Xxxxxxx Xxxxx
----------------------
Name: Xxxxxxx Xxxxx
---------------------
Title: Assistant Vice President
By: /s/ Xxxxx Xxxxxx
----------------------
Name: Xxxxx Xxxxxx
----------------------
Title: Associate
----------------------
GREENWICH CAPITAL MARKETS, INC.,
as Underlying Certificate Seller
By: /s/ Xxxx Xxxxxxxx
-----------------------
Name: Xxxx Xxxxxxxx
----------------------
Title: Vice President
----------------------
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 30th day of August, 2004, before me, personally appeared Xxxxx
Xxxxxxxx, known to me to be an Assistant Vice President of IndyMac MBS, Inc.,
one of the entities that executed the within instrument, and also known to me
to be the person who executed it on behalf of said entity, and acknowledged to
me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxx X. Xxxx
------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Orange )
On this 26th day of August, 2004, before me, personally appeared Xxxxx
Xxxxxx and Xxxxxxx Xxxxx, known to me to be an Associate and an Assistant Vice
President, respectively, of Deutsche Bank National Trust Company, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxx Xxxx Xxxxxxxx
----------------------
Notary Public
[NOTARIAL SEAL]
STATE OF CONNECTICUT )
:
ss.:
COUNTY OF Fairfield )
On this 25th day of August, 2004, before me, personally appeared Xxxx
Xxxxxxxx, known to me to be a Vice President of Greenwich Capital Markets,
Inc., one of the entities that executed the within instrument, and also known
to me to be the person who executed it on behalf of said entity, and
acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Notary Public
[NOTARIAL SEAL]
SCHEDULE I
LIST OF DEPOSITED UNDERLYING CERTIFICATES AND THE UNDERLYING AGREEMENT
DEPOSITED UNDERLYING PRINCIPAL BALANCE AS
CERTIFICATES OF AUGUST 25, 2004(1) UNDERLYING AGREEMENT
------------ --------------------- --------------------
IndyMac MBS, Inc., $187,922,690 Pooling and Servicing
Residential Asset Agreement, dated as of June
Securitization Trust 2004-A5, 1, 2004 among IndyMac MBS,
Mortgage Pass-Through Inc., as depositor, IndyMac
Certificates, Series 2004-E, Bank, F.S.B., as seller and
Class A-1 Certificates as master servicer, and
Deutsche Bank National
Trust Company, as trustee.
----------
(1) After giving effect to distributions made on such date.
S-I-1
SCHEDULE II
PLANNED BALANCE SCHEDULE (Not applicable)
S-II-1
EXHIBIT A-1
XXXXXXXX-XXXXX CERTIFICATION
I, [ ], certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on
Form 8-K containing distribution and servicing reports filed in
respect of periods included in the year covered by this annual report,
of IndyMac MBS, Inc., Residential Asset Securitization Trust 2004-R2;
2. Based on my knowledge, the information in these reports, taken as a
whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made,
in light of the circumstances under which such statements were made,
not misleading as of the last day of the period covered by this annual
report;
3. Based on my knowledge, the distribution or servicing information
required to be provided to the depositor by the trustee under the
pooling and servicing, or similar, agreement, for inclusion in these
reports is included in these reports;
4. I am responsible for reviewing the activities performed by the
depositor and the trustee under the pooling and servicing, or similar,
agreement and based upon my knowledge and the annual compliance review
required under that agreement, and except as disclosed in the reports,
the depositor and trustee have each fulfilled its obligations under
that agreement; and
5. The reports disclose all significant deficiencies relating to the
compliance by the trustee and the depositor with the minimum servicing
or similar standards based upon the report provided by an independent
public accountant, after conducting a review in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or similar
procedure, as set forth in the pooling and servicing, or similar,
agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties:
Deutsche Bank National Trust Company, as Trustee.
Date:
By:_____________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF TRUSTEE CERTIFICATION
To: IndyMac MBS, Inc.
IndyMacBank, F.S.B.
Re: The Trust Agreement dated August 25, 2004 among IndyMac MBS,
Inc., as Depositor, Greenwich Capital Markets, Inc, as Underlying
Certificate Seller and Deutsche Bank National Trust Company,
as Trustee, Securities Intermediary and Bank
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Ladies and Gentlemen:
In connection with the delivery of the Required Certification on behalf
of the Trust Fund, we certify, based on the information provided by the
Underlying Trustee to the Trustee, the information contained in the Monthly
Statements, taken as a whole, does not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in the light of the circumstances under which they were made, not
misleading as of the last day of the period covered by any Required
Certification.
DEUTSCHE BANK NATIONAL TRUST COMPANY
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
Date:
---------------------------
X-0-0
XXXXXXX X-0
Form of Class A Certificate
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
B-1-1
Certificate No. : 1
Cut-off Date : [ ], 200[ ]
First Distribution Date : [ ], 200[ ]
Initial Certificate Balance
of this Certificate
("Denomination") : $[ ]
Initial Certificate Balance
of all Certificates
of this Class : $[ ]
CUSIP : [ ]
Interest Rate : [ ]%
Maturity Date : [ ], 20[ ]
INDYMAC MBS, INC.
Residential Asset Securitization Trust 2004-R2
Mortgage Pass-Through Certificates, Series 2004-R2
Class A-[ ]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of the Deposited Underlying Certificates.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the Underlying Certificate Seller or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Deposited
Underlying Certificates are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate Initial Certificate Balance of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Deposited Underlying Certificates deposited by IndyMac MBS, Inc. (the
"Depositor"). The Trust Fund was created pursuant to a Trust Agreement dated as
of the Cut-off Date specified above (the "Agreement") among the Depositor,
Greenwich Capital Markets, Inc., as underlying certificate seller (the
"Underlying Certificate Seller") and
B-1-2
Deutsche Bank National Trust Company, as trustee, securities intermediary and
bank (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
B-1-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [ ], 200[ ]
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By
--------------------------------
Countersigned:
By
------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
B-1-4
EXHIBIT B-2
Form of Notional Amount Certificate
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
B-2-1
Certificate No. : 1
Cut-off Date : [ ], 200[ ]
First Distribution Date : [ ], 200[ ]
Initial Certificate Balance
of this Certificate
("Denomination") : Notional
Initial Certificate Balance
of all Certificates
of this Class : Notional
CUSIP : [ ]
Interest Rate : [ ]%
Maturity Date : [ ], 20[ ]
INDYMAC MBS, INC.
Residential Asset Securitization Trust 2004-R2
Mortgage Pass-Through Certificates, Series 2004-R2
Class A-[ ]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of the Deposited Underlying Certificates
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the Underlying Certificate Seller or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Deposited
Underlying Certificates are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate Initial Certificate Balance of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Deposited Underlying Certificates deposited by IndyMac MBS, Inc. (the
"Depositor"). The Trust Fund was created pursuant to a Trust Agreement dated as
of the Cut-off Date specified above (the "Agreement") among the Depositor,
Greenwich Capital Markets, Inc., as underlying certificate seller (the
"Underlying Certificate Seller") and Deutsche Bank National Trust Company, as
trustee, securities intermediary and bank (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the
B-2-2
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
B-2-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [ ], 200[ ]
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By
----------------------------------
Countersigned:
By
------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
B-2-4
EXHIBIT C
[RESERVED]
C-1
EXHIBIT D
Form of Residual Certificate
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT TO
SECTION 4975 OF THE CODE, OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY WHICH IS
PURCHASING CERTIFICATES WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY GENERAL
ACCOUNT" AS SUCH TERM IS DEFINED IN SECTION V(e) of prohibited transaction
class exemption 95-60 ("ptce 95-60"), and the purchase and holding of such
certificates are covered under sectionS i and iii of ptce 95-60 OR AN OPINION
OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN. 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 SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
D-1
Certificate No. : 1
Cut-off Date : [ ], 20[ ]
First Distribution Date : [ ], 20[ ]
Initial Certificate Balance
of this Certificate
("Denomination") : $[ ]
Initial Certificate Balance
of all Certificates
of this Class : $[ ]
CUSIP : [ ]
Interest Rate : [ ]%
Maturity Date : [ ], 20[ ]
INDYMAC MBS, INC.
Residential Asset Securitization Trust 2004-R2
Mortgage Pass-Through Certificates, Series 2004-R2
Class A-R
evidencing the distributions allocable to the Class A-R Certificates with
respect to a Trust Fund consisting primarily of the Deposited Underlying
Certificates
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the Underlying Certificate Seller or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Deposited
Underlying Certificates 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 (obtained by dividing the denomination
of this Certificate by the aggregate Initial Certificate Balance of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Deposited Underlying Certificates deposited by IndyMac MBS, Inc. (the
"Depositor"). The Trust Fund was created pursuant to a Trust Agreement dated as
of the Cut-off Date specified above (the "Agreement") among the Depositor,
Greenwich Capital Markets, Inc., as underlying certificate seller (the
"Underlying Certificate Seller") and
D-2
Deutsche Bank National Trust Company, as trustee, securities intermediary and
bank (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class A-R
Certificate at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York.
No transfer of a Class A-R Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee 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 Trustee, (ii) or
that such Transferee is an insurance company which is purchasing such
Certificates with funds contained in an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and that purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60 or (iii) an Opinion of Counsel
satisfactory to the Trustee to the effect that the purchase or holding of such
Class A-R Certificate will not result in a non-exempt prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code and will not subject the
Trustee to any obligation in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Trustee.
Notwithstanding anything else to the contrary herein, any purported transfer of
a Class A-R 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 and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have agreed
to be bound by the restrictions of the Agreement, including but not limited to
the restrictions that (i) each person holding or acquiring any Ownership
Interest in this Class A-R Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class A-R Certificate may be transferred without
delivery to the Trustee of (a) a transfer affidavit of the proposed transferee
and (b) a transfer certificate of the transferor, each of such documents to be
in the form described in the Agreement, (iii) each person holding or acquiring
any Ownership Interest in this Class A-R Certificate must agree to require a
transfer affidavit and to deliver a transfer certificate to the Trustee as
required pursuant to the Agreement, (iv) each person holding or acquiring an
Ownership Interest in this Class A-R Certificate must agree not to transfer an
Ownership Interest in this Class A-R Certificate if it has actual knowledge
that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class A-R
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
D-3
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
D-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: February 27, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By
----------------------------------
Countersigned:
By
------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
D-5
EXHIBIT E
Form of Reverse of Certificate
INDYMAC MBS, INC.
Mortgage Pass-Through Certificates, Series 2004-R2
This Certificate is one of a duly authorized issue of Certificates
designated as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificates are limited in right of payment to certain distributions
in respect of the Deposited Underlying Certificates, all as more specifically
set forth in the Agreement. The Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds on deposit in the
Distribution Account for payment hereunder and that the Trustee is not 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, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month next preceding the
month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in
E-1
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation of the Deposited
Underlying Certificates or the disposition of all property in respect thereof
and the distribution to Certificateholders of all amounts required to be
distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
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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 such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
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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,
----------------------------------------------
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,
-----------------------------------------------------------------------------
for the account of ,
----------------------------------------------------------
account number , or, if mailed by check, to .
----------------------- ---------
Applicable statements should be mailed to ,
-----------------------------------
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.
-----------------------------------------------------------------------------
This information is provided by ,
--------------------------------------
the assignee named above, or ,
------------------------------------------------
as its agent.
E-3
STATE OF )
) ss.:
COUNTY OF )
On the day of , 20 before me, a notary public in and
---- ---------- ---
for said State, personally appeared ,
----------------------------------
known to me who, being by me duly sworn, did depose and say that he executed
the foregoing instrument.
---------------------------
Notary Public
[Notarial Seal]
E-4
EXHIBIT F
FORM OF TRANSFEROR'S AFFIDAVIT
---------------------
Date
IndyMac MBS, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Deutsche Bank National trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 2004-[ ]
-----------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the Class A-R Certificate issued pursuant
to the Trust Agreement dated as of [ ], 200[ ] among IndyMac MBS, Inc., as
depositor, Greenwich Capital Markets, Inc., as underlying certificate seller,
and Deutsche Bank National Trust Company, as trustee, securities intermediary
and bank, we certify that to the extent we are disposing of a Class A-R
Certificate, we have no knowledge the Transferee is not a Permitted Transferee.
Very truly yours,
-----------------------------------
Print Name of Transferor
By:
-----------------------------------
Authorized Officer
F-1
EXHIBIT G
[FORM OF TRANSFER AFFIDAVIT FOR THE
CLASS A-R CERTIFICATE]
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of , the proposed Transferee of an
Ownership Interest in a Class A-R Certificate (the "Certificate") issued
pursuant to the Trust Agreement, (the "Agreement"), relating to the
above-referenced Series, by and among IndyMac MBS, Inc., as depositor (the
"Depositor"), Greenwich Capital Markets, Inc., as underlying certificate seller
and Deutsche Bank National Trust Company, as trustee, securities intermediary
and bank. Capitalized terms used, but not defined herein or in Exhibit 1
hereto, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account or as the nominee,
trustee or agent of another Person, in which case the Transferee has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest
G-1
in such entity. The Transferee understands that such tax will not be imposed
for any period with respect to which the record holder furnishes to the
pass-through entity an affidavit that such record holder is a Permitted
Transferee and the pass-through entity does not have actual knowledge that such
affidavit is false. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives and, except as
may be provided in Treasury Regulations, persons holding interests in
pass-through entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 5.02(c) of the Agreement and the restrictions noted
on the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the Transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is . ------------
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
11. The Transferee anticipates that it will, so long as it holders the
Class A-R Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class A-R Certificates, and hereby represents to and for the
benefit of the person from whom it acquired the Class A-R Certificates that the
Transferee intends to pay taxes associated with holding such Class A-R
Certificates as they become due, fully understanding that it may incur tax
liabilities in excess of
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any cash flows generated by the Class A-R Certificates. The Transferee has
provided financial statements or other financial information requested by the
Transferor in connection with the transfer of the Class A-R Certificates to
permit the Transferor to assess the financial capability of the Transferee to
pay such taxes. The Transferee is not an employee benefit plan that is subject
to ERISA or a plan that is subject to Section 4975 of the Code, and the
Transferee is not acting on behalf of such a plan.
12. Either (i) the Transferee is not an employee benefit plan subject to
Section 406 of ERISA or Section 4975 of the Code, or a person acting on behalf
of any such plan or using the assets of such plan to effect such acquisition,
or, (ii) the source of funds for the purchase of such Class A-R Certificate is
an "insurance company general account" within the meaning of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60"), 60 Fed. Reg. 35925 (July 12,
1995), and the terms and conditions of Sections I and III of PTCE 95-60 are
applicable to the acquisition and holding of such Class A-R Certificate.
13. The Transferee will not cause income from the Class A-R Certificate
to be attributable to a foreign permanent establishment or fixed base of the
Transferee or another U.S. taxpayer.
* * *
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IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this day of , 20 .
---- -------- ---
-----------------------------------
PRINT NAME OF TRANSFEREE
By:
--------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
--------------------------------
[Assistant] Secretary
Personally appeared before me the above-named ___________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the of the Transferee, and acknowledged that he executed the
same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this day of , 20 .
----- --------- --
--------------------------------
NOTARY PUBLIC
My Commission expires the
day of , 20
---- --------- ---
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EXHIBIT 1
to EXHIBIT G
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Code Section 521) which is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by
Code Section 511 on unrelated business taxable income) on any excess inclusions
(as defined in Code Section 860E(c)(1)) with respect to any Class A-R
Certificate, (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(c), (v) a Person that is not a citizen or resident of the
United States, a corporation, partnership, or other entity created or organized
in or under the laws of the United States or any political subdivision thereof,
an estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
(v) an "electing large partnership" within the meaning of Section 775 of the
Code, and (vii) any other Person so designated by the Depositor based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Class A-R
Certificate to such Person may cause the Trust Fund to fail to qualify as a
REMIC at any time that certain Certificates are Outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in Code Section 7701 or successor provisions. A corporation will not be
treated as an instrumentality of the United States or of any State or political
subdivision thereof if all of its activities are subject to tax, and, with the
exception of the FHLMC, a majority of its board of directors is not selected by
such governmental unit.
"Person": Any individual, corporation, partnership, joint venture, bank,
joint stock company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
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EXHIBIT 2
to EXHIBIT G
Section 4.02(d) of the Agreement
(c) (d) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form attached hereto as Exhibit F.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Residual Certificate in violation of the provisions of this Section
4.02(d) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
4.02(d), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 4.02(c) and this
Section 4.02(d) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the
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Investment Letter. The Trustee shall be entitled but not obligated to
recover from any Holder of a Residual Certificate that was in fact not a
Permitted Transferee at the time it became a Holder or, at such subsequent
time as it became other than a Permitted Transferee, all payments made on
such Residual Certificate at and after either such time. Any such payments
so recovered by the Trustee shall be paid and delivered by the Trustee to
the last preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in this
Section 4.02(d) shall cease to apply (and the applicable portions of the legend
on a Residual Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of
Counsel shall not be an expense of the Trust Fund, the Trustee, the Underlying
Certificate Seller or the Depositor, to the effect that the elimination of such
restrictions will not cause each REMIC hereunder to fail to qualify as a REMIC
at any time that the Certificates are outstanding or result in the imposition
of any tax on the Trust Fund, a Certificateholder or another Person. Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
hereby consents to any amendment of this Agreement which, based on an Opinion
of Counsel furnished to the Trustee, is reasonably necessary (a) to ensure that
the record ownership of, or any beneficial interest in, a Residual Certificate
is not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
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