EXHIBIT 4.4
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DEPOSIT TRUST AGREEMENT
dated as of [ ]
among
[INDYMAC BANK, F.S.B.]
as Depositor,
and
[WILMINGTON TRUST COMPANY],
as Owner Trustee
INDYMAC TRUST SPMD [ ]
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Table of Contents
Page
ARTICLE I
DEFINITIONS
ARTICLE II
AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS; DECLARATION OF BUSINESS TRUST BY THE BANK
SECTION 2.1 Declaration of Business Trust by the Bank..............................................7
SECTION 2.2 Transfer of Trust Estate to Owner Trustee..............................................7
SECTION 2.3 Authority to Execute and Perform Various Documents.....................................9
SECTION 2.4 Execution and Delivery of Owner Trust Certificates.....................................9
SECTION 2.5 Activities of the Trust...............................................................10
ARTICLE III
ESTABLISHMENT OF CERTIFICATE ACCOUNT
SECTION 3.1 Establishment of Certificate Account..................................................11
SECTION 3.2 Permitted Withdrawals From the Certificate Account....................................11
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM THE TRUST ESTATE
SECTION 4.1 Distribution of Payments..............................................................12
SECTION 4.2 Payments..............................................................................13
SECTION 4.3 Statements to Certificateholders......................................................14
SECTION 4.4 Access to Certain Documentation and Information.......................................14
SECTION 4.5 Compliance with Withholding Requirements..............................................14
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 Notice of Certain Events; Action by the Owner Trustee.................................15
SECTION 5.2 Distribution of Reports...............................................................15
SECTION 5.3 Action Required Only if Owner Trustee is Indemnified..................................15
SECTION 5.4 No Duties Except as Specified in Agreement or Instructions............................15
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Acceptance of Trust and Duties........................................................16
SECTION 6.2 Limited Representations or Warranties of the Owner Trustee............................16
SECTION 6.3 Certain Duties and Responsibilities...................................................17
SECTION 6.4 Reliance; Advice of Counsel...........................................................18
SECTION 6.5 Books and Records; Tax Election.......................................................19
ARTICLE VII
COMPENSATION, REIMBURSEMENT AND INDEMNIFICATION OF THE OWNER TRUSTEE
SECTION 7.1 Compensation of the Owner Trustee.....................................................19
SECTION 7.2 Reimbursement and Indemnification of the Owner Trustee................................19
SECTION 7.3 Not Obligations of the Trust..........................................................20
ARTICLE VIII
TERMINATION OF AGREEMENT
SECTION 8.1 Termination...........................................................................20
SECTION 8.2 Further Assurances by the Owner Trustee upon Termination..............................21
SECTION 8.3 Insolvency of a Certificateholder.....................................................21
ARTICLE IX
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES AND SEPARATE OWNER TRUSTEES
SECTION 9.1 Resignation of the Owner Trustee; Appointment of Successor............................21
SECTION 9.2 Co-Trustees and Separate Trustees.....................................................22
SECTION 9.3 Notice. .............................................................................23
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
SECTION 10.1 Supplements and Amendments............................................................23
SECTION 10.2 Limitation on Amendments..............................................................23
SECTION 10.3 Additional Amendment Provisions.......................................................23
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEPOSITOR
SECTION 11.1 Representations and Warranties of the Depositor.......................................24
SECTION 11.2 Accrued Interest, Etc.................................................................25
SECTION 11.3 Additional Covenants of the Depositor.................................................25
ARTICLE XII
TRANSFER OF OWNER TRUST CERTIFICATES
SECTION 12.1 Registration of Transfer and Exchange of Owner Trust Certificates.....................26
SECTION 12.2 Mutilated, Destroyed, Lost or Stolen Owner Trust Certificates.........................28
SECTION 12.3 Persons Deemed Owners.................................................................28
SECTION 12.4 Access to Names and Addresses.........................................................29
SECTION 12.5 Actions of Certificateholders.........................................................29
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 No Legal Title to Trust Estate in the Certificateholders..............................30
SECTION 13.2 Action by the Owner Trustee is Binding................................................30
SECTION 13.3 Limitation on Rights of Others........................................................30
SECTION 13.4 Notices. 30
SECTION 13.5 Severability..........................................................................30
SECTION 13.6 Limitation on the Depositor's and the Certificateholder's
Respective Liability................................................................31
SECTION 13.7 Separate Counterparts.................................................................31
SECTION 13.8 Successors and Assigns................................................................31
SECTION 13.9 Headings..............................................................................31
SECTION 13.10 Governing Law.........................................................................31
SECTION 13.11 Administration of Trust...............................................................31
SECTION 13.12 Performance by the Depositor or the Administrator.....................................31
SECTION 13.13 No Implied Waiver.....................................................................31
SECTION 13.14 Third Party Beneficiary...............................................................31
SECTION 13.15 References............................................................................32
SECTION 13.16 Tax Matters...........................................................................32
Exhibit A - Form of Owner Trust Certificate
Exhibit B-1 - Form of Transferor Certificate
Exhibit B-2 - Form of Transferee Certificate
Exhibit C - Form of Certificate of Trust
DEPOSIT TRUST AGREEMENT
THIS DEPOSIT TRUST AGREEMENT, dated as of [ ] (the "Agreement"), by
and between [INDYMAC BANK, F.S.B.], a federal savings bank, as depositor (in
such capacity, the "Depositor"), and [WILMINGTON TRUST COMPANY], a Delaware
banking corporation, as owner trustee (the "Owner Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor desires to form the trust to be created hereby
(the "Trust") for the purpose of (i) accepting from the Depositor the
Underlying Certificate, and holding for the benefit of the holders of the
Owner Trust Certificates (the "Holders" or "Certificateholders") the Trust
Estate (as defined herein), (ii) issuing pursuant to the Indenture (as defined
herein) non-recourse [ ]% IndyMac Notes, Series SPMD [ ] (the "Notes"),
secured by, among other things, a lien on the Underlying Certificate, (iii)
issuing certificates evidencing the entire beneficial ownership interest in
the Trust (such certificates, the "Owner Trust Certificates"), (iv)
consummating certain transactions contemplated by, and performing under, the
Operative Agreements (as defined herein) and (v) engaging in certain
activities incidental to the foregoing; and
WHEREAS, [Wilmington Trust Company], a Delaware banking corporation,
is willing to act as owner trustee hereunder (in its individual capacity, the
"Bank", and solely in its capacity as owner trustee hereunder, with its
successors in interest in such capacity and its permitted assigns, the "Owner
Trustee") and to accept the Trust created hereby.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used herein and not otherwise defined, unless
the context otherwise requires, shall have the meanings set forth below or in
the Indenture. In the event that a capitalized term used herein is defined
both in this Agreement and in the Indenture, the definition appearing herein
shall control.
"Administration Agreement" shall mean the administration agreement,
dated as of [ ], between the Trust and the Administrator, pursuant to which
the Administrator shall perform various obligations of the Trust and the Owner
Trustee under this Agreement and the Indenture.
"Administrator" shall mean the Person acting as the "Administrator"
from time to time under the Administration Agreement; which initially shall be
[The Bank of New York].
"Affiliate" shall mean, with respect to any specified Person, any
other Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities or other beneficial interest, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
meaning of "control".
"Agent" shall mean any agent or attorney of the Owner Trustee or the
Trust appointed by the Owner Trustee to execute one or more of the trust or
powers hereunder, and shall include the Administrator.
"Agreement" shall mean this Deposit Trust Agreement, as the same may
be amended or supplemented from time to time.
"Applicant" shall have the meaning specified in Section 12.4(a) of
this Agreement.
"Available Funds" shall have the meaning assigned to such term in the
Indenture.
"Bank" shall have the meaning assigned to that term in the preamble
above.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions in New York, New York, Wilmington,
Delaware, or any other city specified in the definition of Business Day in the
Indenture, are authorized or obligated by law or executive order to be closed.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. X.xx. 3801 et seq. as the same may be amended or
supplemented from time to time
"Certificate Account" shall mean the segregated trust account
established in the name of the Owner Trustee pursuant to Section 3.1 of this
Agreement.
"Certificate Account Property" shall mean the Certificate Account,
all amounts held from time to time in the Certificate Account, and all
proceeds of the foregoing.
"Certificate of Trust" shall mean the Certificate of Trust in the
form of Exhibit C to be filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
register of Owner Trust Certificates maintained, and the registrar appointed,
respectively, pursuant to Section 12.1.
"Certificateholder" or "Holder" shall mean, with respect to any Owner
Trust Certificate, the Person in whose name such Owner Trust Certificate is
registered on the Certificate Register. Initially, the Depositor shall be the
sole Holder of all the Owner Trust Certificates.
"Certificateholder Funds" shall mean, with respect to any Payment
Date, an amount equal to all amounts on deposit in the Certificate Account as
of the commencement of business on such Payment Date, net of (i) any amounts
payable or reimbursable to the Owner Trustee from the Certificate Account
pursuant to Section 7.2 hereunder and (ii) any amounts deposited in the
Certificate Account in error.
"Closing Date" shall mean [ ].
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Corporate Trust Office" shall mean the principal corporate trust
office of the Owner Trustee at which, at any particular time, its corporate
trust business with respect to this Agreement is administered, which office at
the date hereof is located at the address of the Owner Trustee set forth in
Section 13.4.
"Depositor" shall mean [IndyMac Bank, F.S.B.], a federal savings
bank, and its successors in interest.
"Eligible Trustee" shall mean a bank (within the meaning of Section
2(a)(5) of the Investment Company Act) that meets the requirements of Section
26(a)(1) of the Investment Company Act, that is not an Affiliate of the
Depositor or an Affiliate of any Person involved in the organization or
operation of the Depositor, that is organized and doing business under the
laws of the United States of America, any state thereof or the District of
Columbia, that is authorized under such laws to exercise corporate trust
powers and to accept the trust conferred under this Agreement, that has a
combined capital and surplus and undivided profits of at least $100,000,000
and that is subject to supervision or examination by federal or state
authority. If such bank 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 definition the combined
capital, surplus and undivided profits of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Governmental Authority" shall mean any government, or any
commission, authority, board, agency, division, subdivision or any court or
tribunal of the government, of the United States of America or of any state,
territory, city, municipality, county or town thereof or of the District of
Columbia, or of any foreign jurisdiction, including the employees or agents
thereof.
"Indenture" shall mean that certain indenture, dated as of [ ], by
and between the Issuer and the Indenture Trustee, pursuant to which the Notes
are being issued, as the same may be from time to time supplemented or
amended.
"Indenture Trustee" shall mean [The Bank of New York], a New York
banking corporation, in its capacity as trustee under the Indenture, or its
successor in interest, or any successor trustee appointed as provided in the
Indenture.
"Interest Accrual Period" shall have the meaning assigned to such
term in the Indenture.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, and the rules, regulations and published interpretations of
the SEC promulgated thereunder from time to time.
"IRS" shall mean the Internal Revenue Service.
"Issuer" shall mean the Trust established pursuant to this Agreement
in its capacity as issuer of the Notes.
"Liabilities" shall have the meaning specified in Section 7.2(b) of
this Agreement.
"Lien" shall mean any lien, pledge, encumbrance or security interest
on or in any particular asset or property.
"Note Account" shall mean the segregated trust account established in
the name of the Indenture Trustee pursuant to Section 2.12 of the Indenture.
"Noteholder" shall mean those Persons holding the Notes from time to
time as shown on the Note Register maintained under the Indenture.
"Notes" shall have the meaning assigned to that term in the preamble
above.
"Note Register" shall mean the register of Notes maintained pursuant
to the Indenture.
"Officers' Certificate" shall mean a certificate signed on behalf of
the applicable entity by two officers, one of whom shall be the Chairman of
the Board, the Vice Chairman of the Board, the President, any Vice President
or Managing Director, an Assistant Vice President or any other authorized
officer (however denominated) and the other of which shall be by the
Treasurer, the Secretary, one of the Assistant Treasurers or Assistant
Secretaries, or, in either case, another officer customarily performing
functions similar to those performed by any of the above designated officers
or, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Operative Agreements" shall mean, collectively, this Agreement, the
Owner Trust Certificates, the Indenture, the Notes, the Administration
Agreement, the Underlying Agreement and the Underlying Certificate, as each of
them may, from time to time, be amended or supplemented.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may, without limitation, but subject to the requirements of the Indenture, be
employees or other counsel for the Depositor which are reasonably acceptable
to the Owner Trustee. The cost of such opinion shall be borne by the
Depositor.
"Owner Trust Certificates" shall mean the certificates issued
hereunder evidencing beneficial ownership interests in the Trust.
"Owner Trustee" shall have the meaning assigned to that term in the
preamble above.
"Owner Trustee Fee" shall mean the fees payable to the Owner Trustee
by the Depositor as compensation for the performance of it obligations under
this Agreement.
"Ownership Interest" shall mean as to any Owner Trust Certificate,
any ownership or security interest in such Owner Trust Certificate, including
any interest in such Owner Trust Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"Payment Date" shall mean the first Business Day following the
Underlying Distribution Date of each month, commencing in [ ].
"Percentage Interest" shall mean, with respect to any Owner Trust
Certificate, the percentage interest of beneficial ownership in the Trust
evidenced by such Owner Trust Certificate as specified on the face thereof.
"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, estate,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Plan" shall have the meaning specified in Section 12.1 (c) of this
Agreement.
"QIB" shall mean a "qualified institutional buyer" within the meaning
Rule 144A under the Securities Act.
"Rating Agencies" shall have the meaning assigned to such term in the
Indenture.
"Record Date" shall mean, with respect to the Owner Trust
Certificates for any Payment Date other than the first Payment Date, the last
Business Day of the month immediately preceding such Payment Date. For the
first Payment Date the Record Date shall be the Closing Date.
"Responsible Officer" shall mean any officer of the Owner Trustee
customarily performing functions with respect to corporate trust matters and
having direct responsibility for the administration of this Agreement and,
with respect to a particular corporate trust matter under this Agreement, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules, regulations and published interpretations of the SEC
promulgated thereunder from time to time.
"Tax Return" shall have the meaning specified in Section 6.5 of this
Agreement.
"Transfer" shall mean any direct or indirect transfer or other form
of assignment of any Owner Trust Certificate.
"Trust" shall mean the trust established under this Agreement.
"Trust Estate" shall mean the corpus of the trust created as of the
Closing Date and to be administered hereunder, consisting of (i) all the
right, title and interest of the Depositor in and to the Underlying
Certificate and all distributions thereon after the Closing Date and in and to
the Underlying Agreement, (ii) the Certificate Account Property, (iii) the
rights of the Trust to enforce remedies against the Administrator under the
Administration Agreement (provided that the Trust retains the right to give
instructions and directions to the Administrator thereunder), and against the
Depositor under this Agreement, (iv) all present and future claims, demands,
causes and choses in action in respect of the foregoing, including the rights
of the Trust under the Underlying Certificate and the Underlying Agreement,
and (v) all proceeds of the foregoing of every kind and nature whatsoever,
including, without limitation, all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property that at
any time constitute all or part of or are included in the proceeds of the
foregoing.
"UCC Financing Statement" shall mean a financing statement executed
and in form sufficient for filing pursuant to the Uniform Commercial Code, as
in effect in the relevant jurisdiction.
"Underlying Agreement" shall mean the Pooling and Servicing
Agreement, dated as of [ ], among the Depositor, as seller and master
servicer, IndyMac ABS, Inc., as depositor and [The Bank of New York], as
trustee, together with all exhibits thereto, pursuant to which the Underlying
Certificate was issued.
"Underlying Certificate" shall mean the Home Equity Mortgage Loan
Asset Backed Trust, Series SPMD [ ], Class X Certificates issued by Home
Equity Mortgage Loan Asset Backed Trust, Series SPMD [ ].
"Underlying Distribution Date" shall mean the date each month on
which payments are made to the registered holder of such Underlying
Certificate in accordance with the Underlying Agreement.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as
in effect in any applicable jurisdiction.
ARTICLE II
AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS;
DECLARATION OF BUSINESS TRUST BY THE BANK
SECTION 2.1 Declaration of Business Trust by the Bank. The Trust will
be known as "IndyMac rust SPMD [ ]," in which name the Owner Trustee may
conduct the affairs of the Trust. The Bank is hereby appointed to hold and
agrees to hold the Trust Estate as Owner Trustee in trust upon the terms and
conditions and for the use and benefit of the Certificateholders as herein set
forth.
It is the intention of the parties hereto that the trust created by
this Agreement constitute a "business trust" under the Business Trust Statute
and that this Agreement constitute the governing instrument of such business
trust. This Declaration of Business Trust is not intended to create a
partnership, a joint-stock association, a "taxable mortgage pool" or any
association taxable as a corporation for federal income tax purposes. The
Owner Trustee shall have power and authority and is hereby authorized and
empowered to execute and file the Certificate of Trust in the office of the
Secretary of State of the State of Delaware. Effective as of the date hereof,
the Owner Trustee shall have all the rights, powers and duties set forth
herein and in the Business Trust Statute with respect to accomplishing the
purposes of the Trust.
SECTION 2.2 Transfer of Trust Estate to Owner Trustee.
(a) Effective as of the date hereof, the Depositor does hereby
assign, transfer, and otherwise convey to, and deposit with, the Trust, until
this Agreement terminates pursuant to Section 8.1, all of its right, title and
interest in and to the Underlying Certificate and all distributions thereon
after the Closing Date and in and to the Underlying Agreement, such conveyance
to be made in exchange for the Notes and the Owner Trust Certificates. Such
assignment includes, without limitation, all amounts payable to and all rights
of the holder of the Underlying Certificate after the Closing Date pursuant to
the Underlying Agreement.
In connection with such transfer and assignment, the Depositor does
hereby deliver or cause to be delivered to, and deposit or cause to be
deposited with, the Trust (or, to and with the Indenture Trustee on behalf of
the Trust pursuant to the Indenture) each of the following documents or
instruments relating to each Underlying Certificate:
(i) a duly issued and authenticated physical certificate
evidencing such Underlying Certificate registered in the name of
"[The Bank of New York], as Indenture Trustee under the Indenture
dated as of [ ], relating to IndyMac Trust SPMD [ ], IndyMac Notes,
Series SPMD [ ]" or its nominee;
(ii) a UCC Financing Statement covering the Underlying
Certificate and all distributions thereon after the Closing Date and
in and to the Underlying Agreement and executed by the Depositor as
debtor/seller in favor of the Trust as secured party/buyer and the
Indenture Trustee as its assignee;
(iii) a copy (which may be on electronic media) of the
Underlying Agreement; and
(iv) all other items relating to the foregoing as reasonably
requested by the Owner Trustee or the Indenture Trustee.
(b) The conveyance of the Underlying Certificate and all
distributions thereon after the Closing Date and in and to the Underlying
Agreement as contemplated hereby is absolute and is intended by the parties to
constitute a sale of the Underlying Certificate and all other assets
constituting the Trust Estate by the Depositor to the Trust. It is, further,
not intended that such conveyance be deemed a pledge of security for a loan.
If such conveyance is deemed to be a pledge of security for a loan, however,
the Depositor intends that the rights and obligations of the parties to such
loan shall be established pursuant to the terms of this Agreement. The
Depositor also intends and agrees that, in such event, (i) this Agreement
shall constitute a security agreement under applicable law, (ii) the Depositor
shall be deemed to have granted to the Trust a first priority perfected
security interest in the Depositor's entire right, title and interest in and
to the assets constituting the Trust Estate, including, without limitation,
the Underlying Certificate and all payments thereon from and after the Closing
Date, (iii) the possession by the Owner Trustee on behalf of the Trust (or any
subsequent assignee, including, without limitation, the Indenture Trustee) or
its agent of the Underlying Certificate and such other items of property as
constitute instruments, money, negotiable documents or chattel paper, shall be
deemed to be "possession by the secured party" or possession by a purchaser or
person designated by such secured party for the purpose of perfecting such
security interest under applicable law, and (iv) notifications to, and
acknowledgments, receipts or confirmations from, Persons holding such
property, shall be deemed to be notifications to, or acknowledgments, receipts
or confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Owner Trustee on behalf of the Trust (or any subsequent
assignee, including, without limitation, the Indenture Trustee) for the
purpose of perfecting such security interest under applicable law. The
Depositor shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Underlying Certificate and all
distributions thereon after the Closing Date and in and to the Underlying
Agreement, such security interest would be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the life of this Agreement.
(c) The Owner Trustee hereby acknowledges the transfer of the
Underlying Certificate and all distributions thereon after the Closing Date
and in and to the Underlying Agreement, and declares that it holds and will
hold the Underlying Certificate and all distributions thereon after the
Closing Date and in and to the Underlying Agreement and that it holds and will
hold all other assets and documents to be included in the Trust Estate, in
trust for the exclusive use and benefit of all present and future
Certificateholders, all in accordance with the terms of this Agreement.
(d) Except as expressly provided herein and in the Indenture, neither
the Depositor nor any Certificateholder shall be able to revoke the Trust
established hereunder. Except as provided herein and in the Indenture, the
Owner Trustee shall not assign, sell, dispose of or transfer any interest in,
nor may the Depositor or any Certificateholder withdraw from the Trust, the
Underlying Certificate or other asset constituting the Trust Estate.
SECTION 2.3 Authority to Execute and Perform Various Documents. The
Trust shall have the power and authority, and the Owner Trustee on behalf of
the Trust or, in the case of tax administration matters, its Agent, is hereby
authorized (i) to execute and deliver the Operative Agreements to which the
Trust is a party and all other agreements, documents, instruments and
certificates contemplated to be executed and delivered by the Trust pursuant
to the Operative Agreements and, pursuant to the terms of the Indenture, to
execute, issue and deliver to the Indenture Trustee for authentication the
Notes in the form provided to the Owner Trustee by the Depositor and to
deliver the Notes to, or in accordance with the direction of, the Depositor;
(ii) to execute, authenticate and deliver the Owner Trust Certificates to the
Depositor; (iii) as and to the extent provided in the Indenture, to pledge the
Trust Estate as security for repayment of the Notes and, in connection
therewith, to deliver (or cause to be delivered) to the Indenture Trustee each
of the documents and instruments contemplated by the granting clause of the
Indenture; (iv) to take whatever action shall be required to be taken by the
Trust by the terms of, and exercise its rights and perform its duties under,
each of the documents, agreements, instruments and certificates referred to in
clauses (i) through (iii) above as set forth in such documents, agreements,
instruments and certificates; and (v) subject to the terms of this Agreement,
to take such other action in connection with the foregoing as the
Certificateholders may from time to time direct; provided, however, that the
Owner Trustee shall have no duty to perform the obligations of the Trust
except as expressly set forth in this Agreement.
SECTION 2.4 Execution and Delivery of Owner Trust Certificates.
(a) The Owner Trustee shall, on the date hereof, execute and cause to
be authenticated and delivered to and upon the order of the Depositor, the
Owner Trust Certificates in authorized denominations evidencing the entire
beneficial ownership of the Trust. The rights of the Certificateholders to
receive distributions from the proceeds of the Trust in respect of the Owner
Trust Certificates shall be as set forth in this Agreement.
(b) The Owner Trust Certificates will be substantially in the form
attached hereto as Exhibit A; provided, however, that any of the Owner Trust
Certificates may at the request of the Depositor be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or
with rules or regulations pursuant thereto, or with the rules of any
securities market in which the Owner Trust Certificates are admitted to
trading, or to conform to general usage.
(c) Each Owner Trust Certificate may be printed or in typewritten or
similar form, and each Owner Trust Certificate shall, upon original issue and
at the direction of the Depositor, be executed by the Owner Trustee and
authenticated by the Certificate Registrar and delivered to or upon the order
of the Depositor. All Owner Trust Certificates shall be executed by manual or
facsimile signature on behalf of the Trust by an authorized officer of the
Owner Trustee, not individually, but solely as Owner Trustee hereunder. Owner
Trust Certificates bearing the signatures of individuals who were at any time
the proper officers of the Owner Trustee shall bind the Owner Trustee,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the delivery of such Owner Trust Certificates or did not hold
such offices at the date of such Owner Trust Certificates. No Owner Trust
Certificates shall be entitled to any benefit under this Agreement, or be
valid for any purpose, unless there appears on such Owner Trust Certificate a
certificate of authentication in the form set forth on the signature page of
the form of Owner Trust Certificates attached as Exhibit A, executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Owner Trust Certificate shall be conclusive evidence,
and the only evidence, that such Owner Trust Certificate has been duly
authenticated and delivered hereunder. All Owner Trust Certificates shall be
dated the date of their authentication.
SECTION 2.5 Activities of the Trust. It is the intention of the
parties hereto that the Trust shall not engage in any business or activities
other than in connection with, or relating to, the purposes specified in
Section 2.3. The operations of the Trust will be conducted in accordance with
the following standards (and the Depositor hereby agrees to use its best
efforts to cause the operations of the Trust to be conducted in accordance
herewith):
(i) The Trust will observe all procedures required by this
Agreement.
(ii) Except as otherwise provided in Sections 5.1 and 5.4 and
the Administration Agreement, the business and affairs of the Trust
will be managed by or under the direction of the Owner Trustee.
Except as otherwise expressly provided in this Agreement, the
Depositor will have no authority to act for, or to assume any
obligation or responsibility on behalf of, the Trust.
(iii) The Trust will keep correct and complete books and
records of accounts and minutes of the meetings and other proceedings
of the trustees of the Trust, separate from those of the Depositor or
any subsidiary, affiliate or separate account of the Depositor. Any
such resolutions, agreements and other instruments will be
continuously maintained by the Administrator as official records of
the Trust.
(iv) Each of the Depositor and the Trust will provide for its
own operating expenses and liabilities from its own funds. General
overhead and administrative expenses of the Trust will not be charged
or otherwise allocated to the Depositor (except indirectly, insofar
as the Depositor owns the Owner Trust Certificates) and such expenses
of the Depositor will not be charged or otherwise allocated to the
Trust.
(v) The Trust will conduct its business under names or
tradenames so as not to mislead others as to the identity of the
Trust. Without limiting the generality of the foregoing, all oral and
written communications, including letters, invoices, contracts,
statements and applications will be made solely in the name of the
Trust if related to the Trust. The Depositor and the Trust each will
have separate stationery and other business forms.
(vi) There will be no guarantees made by the Trust with
respect to obligations of the Depositor. There will not be any
indebtedness relating to borrowings or loans between the Trust and
the Depositor.
(vii) The Trust will act solely in its name and through its or
the Owner Trustee's duly authorized officers or agents in the conduct
of its business. The Trust will not: (A) operate or purport to
operate as an integrated, single economic unit with respect to the
Depositor or any other affiliated or unaffiliated entity; (B) seek or
obtain credit or incur any obligation to any third party based upon
the assets of the Depositor; or (C) induce any such third party to
reasonably rely on the creditworthiness of the Depositor or any other
affiliated or unaffiliated entity.
(viii) The Trust will maintain its principal place of business
in the State of Delaware.
(ix) The Trust and the Depositor shall keep separate their
respective funds and other assets and shall not commingle such funds
and other assets with those of any other Affiliates thereof.
(x) If and to the extent applicable, the Trust shall prepare
financial statements of the Trust that are separate from those of the
Depositor and any other Affiliates (although it may be presented as
part of the consolidated financial statements of an Affiliate).
(xi) The Trust will not engage in any transaction with an
Affiliate on any terms other than would be obtained in an
arm's-length transaction with a non-Affiliate.
ARTICLE III
ESTABLISHMENT OF CERTIFICATE ACCOUNT
SECTION 3.1 Establishment of Certificate Account.
The Owner Trustee, for the benefit of the
Certificateholders, shall establish with the Bank a non-interest bearing trust
account (the "Certificate Account"), entitled "IndyMac Trust SPMD [ ] Owner
Trust Certificate Account" and held in trust by the Owner Trustee for the
benefit of the Certificateholders. The foregoing requirements for the
establishment of the Certificate Account shall be exclusive.
SECTION 3.2 Permitted Withdrawals From the Certificate Account.
The Owner Trustee may from time to time withdraw funds from
the Certificate Account for the following purposes:
(i) to reimburse or indemnify the Owner Trustee for expenses
and other liabilities incurred by and reimbursable to the Owner
Trustee, pursuant to Section 7.2 hereunder, except as otherwise
provided in such section and to pay or make reasonable provision for
the payment of all other liabilities of the Trust;
(ii) to make payments on the Owner Trust Certificates in the
amounts and in the manner provided for in Section 4.2 hereunder;
(iii) to clear and terminate the Certificate Account upon the
termination of this Agreement; and
(iv) to return to the Indenture Trustee any amounts remitted
by the Indenture Trustee to the Owner Trustee in error.
On each Payment Date or on the termination of the Trust, the Owner
Trustee shall withdraw all funds from the Certificate Account and shall use
such funds withdrawn from the Certificate Account only for the purposes
described in this Section 3.2 and Section 4.2 hereunder.
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE
SECTION 4.1 Distribution of Payments.
(a) In the event that, from the Closing Date and prior to the Lien on
the Trust Estate under the Indenture having been discharged and released, any
payments on account of the Underlying Certificate are received directly
(rather than through the Indenture Trustee) by the Owner Trustee, the
Depositor or a Certificateholder, the Person so receiving such payment shall,
promptly upon receipt (but no later than one Business Day thereafter), deliver
such payment over to the Indenture Trustee without deduction, set-off or
adjustment of any kind.
(b) After the Payment Date on which the Notes have been paid in full,
any Available Funds distributable by the Indenture Trustee on a Payment Date
pursuant to Section 2.13(e)(vi) of the Indenture will be remitted by the
Indenture Trustee to the Owner Trustee for application as provided in Section
3.2 hereof (including, without limitation, payment to the Certificateholders
in accordance with Section 4.2 hereof). The Owner Trustee may direct the
Indenture Trustee in writing to distribute such Available Funds in a manner
consistent with Sections 3.2 and 4.2 hereof (as if such Available Funds were
on deposit in the Certificate Account); and, in connection therewith, such
Available Funds shall be deemed to have been deposited in the Certificate
Account and subsequently withdrawn to make such distributions. In such case,
the Owner Trustee shall have no liability for the Indenture Trustee's failure
to distribute such amounts in accordance with this Agreement.
SECTION 4.2 Payments.
(a) On each Payment Date that Available Funds are distributed
pursuant to Section 2.13 of the Indenture (or, if the payments from the
Indenture Trustee on such Payment Date shall have been received after 2:00
p.m., New York City time, on such Payment Date, as soon as reasonably
possible, but in no event more than one Business Day, following receipt), the
Owner Trustee (or its Agent) shall, subject to Section 3.2 of this Agreement,
withdraw from the Certificate Account all Certificateholder Funds then on
deposit therein, and the Owner Trustee (or its Agent) shall pay such
Certificateholder Funds to the Certificateholders.
Payments made after the Payment Date on which they were scheduled to
be made as permitted by the parenthetical in the first sentence of this
Section 4.2(a), shall be deemed to have been made on such Payment Date.
(b) All distributions of the Certificateholder Funds on any Payment
Date shall be allocated pro rata among the Owner Trust Certificates based upon
their respective Percentage Interests. Payments to the Certificateholders on
each Payment Date will be made to the Certificateholders of record on the
related Record Date. Payments to any Certificateholder on any Payment Date
shall be made by wire transfer of immediately available funds to the account
of such Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have so notified the
Owner Trustee in writing at least five Business Days prior to the related
Record Date and if such Certificateholder is the registered owner of Owner
Trust Certificates representing at least a [33 1/3]% Percentage Interest
thereof, or otherwise by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. Final payment on
each Owner Trust Certificate will be made in like manner, but only upon
presentment and surrender of such Owner Trust Certificate at the Corporate
Trust Office or such other location specified in the notice to
Certificateholders of such final payment.
(c) Whenever the Owner Trustee expects that the final payment with
respect to the Owner Trust Certificates will be made on the next Payment Date,
whether in connection with the final distribution on the Underlying
Certificate or upon a termination of the Trust at the direction of the
Certificateholders in accordance with Section 8.1, the Owner Trustee (or its
Agent) shall mail to each Holder on such date a notice to the effect that the
Owner Trustee expects that the final payment with respect to the Owner Trust
Certificates will be made on such Payment Date but only upon presentation and
surrender of the Owner Trust Certificates at the office of the Owner Trustee
therein specified. Upon presentation and surrender of the Owner Trust
Certificates by the Certificateholders on the final Payment Date in respect of
the Owner Trust Certificates, the Owner Trustee shall distribute to the
Certificateholders the amounts otherwise distributable on such Payment Date
pursuant to Section 4.2(a). Any funds not distributed on such Payment Date
because of the failure of any Certificateholders to tender their Owner Trust
Certificates shall be set aside and held in trust for the account of the
appropriate non-tendering Certificateholders. If any Owner Trust Certificate,
as to which notice has been given pursuant to this Section 4.2(c) shall not
have been surrendered for cancellation within six months after the time
specified in such notice, the Owner Trustee shall mail a second notice to the
related Certificateholders, at their last addresses shown in the Certificate
Register, to surrender such Owner Trust Certificates for cancellation in order
to receive, from the funds held, the final payment with respect thereto. If
within one year after the second notice any Owner Trust Certificate shall not
have been surrendered for cancellation, the Owner Trustee shall directly or
through an agent, take reasonable steps to contact the related
Certificateholders concerning surrender of their Owner Trust Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If
within two years after the second notice any Owner Trust Certificate shall not
have been surrendered for cancellation, the Owner Trustee shall pay such funds
to the Depositor who, subject to escheat laws, shall thereafter hold such
amounts uninvested for the benefit of such Holders. No interest shall accrue
or be payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Owner Trust Certificate for final
payment thereof in accordance with this Section 4.2(c).
SECTION 4.3 Statements to Certificateholders.
(a) On each Payment Date, the Owner Trustee (or its Agent) shall
prepare, and shall make available upon written request thereof, a statement to
each Certificateholder, to the Depositor and to the Rating Agencies stating
the Certificateholder Funds for such Payment Date.
(b) Within 60 days after the end of each calendar year, the Owner
Trustee (or its Agent) shall furnish to each Person (upon the written request
of such Person), who at any time during the previous calendar year was a
Certificateholder, a statement containing information regarding payments of
amounts on such Person's Owner Trust Certificates, aggregated for such
calendar year or the applicable portion thereof during which such Person was a
Certificateholder. Such obligation shall be deemed to have been satisfied to
the extent that substantially comparable information shall be provided
pursuant to any requirements of the Code and regulations thereunder as from
time to time are in force.
SECTION 4.4 Access to Certain Documentation and Information.
The Owner Trustee shall provide to the Certificateholders access to
all the reports, documents and records maintained by the Owner Trustee in
respect of its duties hereunder, such access being afforded without charge but
only upon reasonable written request and during normal business hours at
offices designated by the Owner Trustee.
SECTION 4.5 Compliance with Withholding Requirements. In the event
that the Owner Trustee is required (whether on liquidation of the Trust or
otherwise) to make payments to the Depositor or the Certificateholders,
notwithstanding any other provisions of this Agreement, the Owner Trustee (or
its Agent) shall comply with all federal withholding requirements with respect
to payments to the Depositor or the Certificateholders that the Owner Trustee
reasonably believes are applicable under the Code. The consent of the
Depositor or the Certificateholders, as the case may be, shall not be required
for any such withholding. The parties hereto understand and agree that the
Owner Trustee shall not be required to gross up any such payments for the
amount of such withholding (or any other amounts).
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 Notice of Certain Events; Action by the Owner Trustee.
(a) Whenever the Owner Trustee, on behalf of the Trust as issuer of
the Notes or as holder of the Underlying Certificate, is requested or, as to
any particular matter, notified of its authority, by any Person, to take any
action or to give any consent, approval or waiver that it is entitled to take
or give on behalf of the Trust in such capacity, the Owner Trustee shall
promptly notify all the Certificateholders of such request or notice in such
detail as is made available to it.
(b) Subject to the Owner Trustee's rights in this Agreement to be
indemnified for its acts and omissions with respect to matters concerning the
Operative Agreements, the Trust Estate or the Underlying Certificate, the
Owner Trustee shall take or refrain from taking such action as the
Certificateholders owning a majority of the Percentage Interests shall so
direct in writing. The Owner Trustee may, from time to time, request in
writing instructions from the Certificateholders if the Owner Trustee receives
notice that a default shall have occurred and is continuing under the
Administration Agreement or the Indenture.
(c) Notwithstanding any direction of the Certificateholders to the
contrary or any provision hereof to the contrary, the Owner Trustee shall not,
without the written consent of the Indenture Trustee, execute any direction of
the Certificateholders that to the actual knowledge of a Responsible Officer
of the Owner Trustee will result in the Trust being terminated prior to the
satisfaction and discharge of the Lien of the Indenture on the Trust Estate.
SECTION 5.2 Distribution of Reports. Upon receipt of a written
request, the Owner Trustee shall promptly (but no later than five Business
Days following receipt thereof) distribute to the Depositor and the
Certificateholders such reports, notices, statements and written materials
relating to the Trust (other than such documents which have been delivered
pursuant to Section 4.3 of this Agreement).
SECTION 5.3 Action Required Only if Owner Trustee is Indemnified. The
Owner Trustee shall not be required to take any action under Section 5.1 (b)
if the Owner Trustee shall reasonably determine, or shall have been advised in
writing by counsel, that such action is likely to result in personal liability
for which the Owner Trustee has not been and will not be adequately
indemnified or is contrary to the terms hereof or of any Operative Agreement
or is otherwise contrary to law.
SECTION 5.4 No Duties Except as Specified in Agreement or
Instructions.
(a) The Owner Trustee shall not have any duty or obligation to
manage, control, use, make any payment in respect' of, register, record,
insure, inspect, sell, dispose of or otherwise deal with the Underlying
Certificate or any other part of the Trust Estate, or to otherwise take or
refrain from taking any action under or in connection with any Operative
Agreement to which the Trust is a party, except as expressly provided by the
terms of this Agreement or in written instructions from the Certificateholders
received pursuant to Section 5.1(b); and no implied duties or obligations
shall be read into this Agreement against the Owner Trustee. The Bank in its
individual capacity, nevertheless agrees that it will, at its own cost and
expense, promptly take all action as may be necessary to discharge any Liens
on the Trust Estate arising by, through or under the Bank which are unrelated
to the transactions contemplated hereby. Any successor trustee, in its
individual capacity, agrees that it will, at its own cost and expense,
promptly take all action as may be necessary to discharge any Liens on the
Trust Estate arising by, through or under the successor trustee which are
unrelated to the transactions contemplated hereby. Any co-trustee, in its
individual capacity, agrees that it will, at its own cost and expense,
promptly take all action as may be necessary to discharge any Liens on the
Trust Estate arising by, through or under the co-trustee which are unrelated
to the transactions contemplated hereby.
(b) Without limiting the generality of the foregoing subsection (a),
except as otherwise explicitly provided in this Agreement, the Owner Trustee
shall not have any duty to (i) file or record any Operative Agreement or any
other document (including financing or continuation statements), or to
maintain or continue any such filing or recording or to refile or rerecord any
such document, (ii) pay or discharge any tax or any Lien owing with respect to
or assessed or levied against any part of the Trust Estate, other than to
forward notice of such tax or Lien received by the Owner Trustee to the
Certificateholders and the Indenture Trustee, (iii) confirm, verify,
investigate or inquire into the failure of any Person to receive any payments,
notices, reports or financial statements in connection with the Underlying
Certificate, (iv) ascertain or inquire as to the performance or observance of
any Person under or of any of the Operative Agreements, (v) manage, control,
sell, dispose of or otherwise deal with the Underlying Certificate or any part
thereof or any other part of the Trust Estate or (vi) to prepare or file any
document under state or federal tax or securities laws.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Acceptance of Trust and Duties. The Bank accepts the
trust hereby created and agrees to perform the same, but only upon the terms
of this Agreement. The Bank agrees to receive, manage and disburse all moneys
constituting part of the Trust Estate actually received by it as Owner Trustee
in accordance with the terms of this Agreement. Neither the Bank nor the Owner
Trustee shall be answerable or accountable under any circumstances, except for
(i) its own willful misconduct, bad faith or gross negligence, (ii) the
inaccuracy of any of its representations or warranties contained in Section
6.2 of this Agreement, (iii) taxes based on or measured by any fees,
commissions or compensation received by it for acting as Owner Trustee in
connection with any of the transactions contemplated by this Agreement or any
other Operative Agreements and (iv) its failure to use reasonable care to
receive, manage and disburse moneys actually received by it in accordance with
the terms hereof.
SECTION 6.2 Limited Representations or Warranties of the Owner
Trustee.
Neither the Bank nor the Owner Trustee makes (i) any representation
or warranty, either express or implied, as to the title to or value of the
Underlying Certificate, and (ii) any representation or warranty as to the
validity or enforceability of any Operative Agreement except as set forth
below or as to the correctness of any statement made by a Person other than
the Bank contained in any Operative Agreement. The Bank represents, warrants
and covenants to and for the benefit of the Depositor and the
Certificateholders that:
(a) The Bank is a banking corporation, duly organized, validly
existing and in good standing under the laws of the state of Delaware;
(b) The execution and delivery by the Bank, and the performance and
compliance by the Bank with the terms of, this Agreement and any and all
documents to be executed or delivered by the Bank in its individual capacity
in connection with this Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement and such other
documents executed in connection herewith to which the Bank is a party, will
not violate any provisions of the Bank's charter or bylaws;
(c) The Bank, in its individual capacity, has full power and
authority and has taken all action necessary to execute and deliver this
Agreement and any and all documents to be executed or delivered by it in its
individual capacity in connection with this Agreement and to fulfill its
obligations under, and to consummate the transactions contemplated by, this
Agreement and such other documents executed in connection herewith to which it
is a party, and this Agreement is the legal, valid and binding obligation of
the Bank, in its individual capacity, enforceable against the Bank in
accordance with its terms, except as such terms may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
rights of creditors generally and by general principles of equity;
(d) The consummation of the transactions hereby contemplated do not
conflict with, violate or contravene any law, rule, regulation or judicial,
governmental or administrative order applicable to the Bank or conflict with,
result in a breach of or constitute a default under any of the terms,
conditions or provisions of any agreement or instrument to which the Bank is a
party or by which it is bound, or any order or decree applicable to the Bank,
which would materially and adversely affect the ability of the Bank to carry
out the transactions contemplated by this Agreement; and
(e) There is no action, suit or proceeding pending against the Bank
in any court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the ability of the Bank to carry
out the transactions contemplated by this Agreement.
SECTION 6.3 Certain Duties and Responsibilities.
(a) The Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that
the Owner Trustee was grossly negligent in ascertaining the pertinent facts.
(b) The Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Certificateholders.
(c) The Owner Trustee shall not be liable for interest on any money
received by it except as the Owner Trustee may otherwise agree with the
Certificateholders.
(d) No provision of this Agreement shall require the Owner Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(e) The permissive right of the Owner Trustee to take actions
enumerated in this Agreement shall not be construed as a duty and the Owner
Trustee shall not be answerable for other than its own willful misconduct, bad
faith or gross negligence.
(f) The Owner Trustee shall be under no obligation to institute any
suit, or to take any remedial proceeding under this Agreement, or to enter any
appearance or in any way defend in any suit in which it or the Trust may be
made a defendant, or in the enforcement of any rights and powers hereunder, if
the Owner Trustee reasonably believes that it will not be adequately
indemnified against any and all costs and expenses, outlays, and counsel fees
and other reasonable disbursements and against all liability.
(g) Under no circumstances shall the Owner Trustee be personally
liable for any indebtedness or obligation of the Trust.
(h) The Owner Trustee shall not be liable for the default or
misconduct of the Depositor, the Administrator or any other Person and shall
not be responsible for performing any duties or obligations of the Trust or
the Owner Trustee that are the responsibility of the Depositor, the
Administrator or any other Person and shall not be liable or responsible for
monitoring the performance of the Depositor, the Administrator or any other
Person, or for the failure of responsibility of the Depositor, the
Administrator or any other Person to perform their obligations pursuant to the
Operative Agreements.
(i) Every provision of this Agreement relating to the Owner Trustee
shall be subject to the provisions of this Section 6.3.
SECTION 6.4 Reliance; Advice of Counsel. Neither the Bank nor the
Owner Trustee shall incur any liability to any Person in acting upon any
signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it
to be genuine and believed by it in good faith to be signed by the proper
party or parties. The Owner Trustee may accept and rely upon a certified copy
of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the manner of ascertainment of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on an
Officers' Certificate of the relevant party, as to such fact or matter, and
such Officers' Certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon. In the administration of the Trust hereunder, the Owner
Trustee may execute any of the trusts or powers hereof and perform its powers
and duties hereunder directly or through Agents and the Owner Trustee shall
not be liable for the acts or omissions of any Agent selected by it in good
faith. The Owner Trustee may consult with counsel, accountants and other
skilled Persons to be selected and employed by it, and the Owner Trustee shall
not be liable for anything done, suffered or omitted in good faith by it in
accordance with the advice or opinion of counsel, accountant or other skilled
Persons, so long as the Owner Trustee had no actual knowledge that it could
not reasonably rely on such advice or opinion or by any such Persons appointed
in good faith.
SECTION 6.5 Books and Records; Tax Election. The Owner Trustee (or
its Agent) shall be responsible for the keeping of all appropriate books and
records relating to the receipt and disbursement of all moneys that it may
receive hereunder or under any other Operative Agreement. In the event that
the Owner Trust Certificates are held by more than one Holder, or the Trust is
successfully recharacterized by the IRS as a partnership, the Owner Trustee
(or its Agent) shall file an application with the IRS for a taxpayer
identification number with respect to the Trust (and, upon receipt of such
number, notify the Indenture Trustee thereof) and prepare or cause to be
prepared and sign and/or file a tax return in connection with the transactions
contemplated hereby (the "Tax Return"); provided, however, that the Owner
Trustee (or its Agent) shall, upon receipt of a written request, send or cause
to be sent a copy of the completed Tax Return to the Depositor, the
Certificateholders and the Indenture Trustee on or after the due date of the
Tax Return. The Depositor and any Certificateholders shall each, upon request
by the Owner Trustee (or its Agent), furnish the Owner Trustee (or its Agent)
with all such information as may be reasonably required from the Depositor or
the Certificateholders in connection with the preparation of such Tax Return.
The Owner Trustee shall keep copies of the Tax Returns delivered to or filed
by it (or its Agent).
SECTION 6.6 Actions by Owner Trustee. In performing its duties under
this Agreement, the Owner Trustee acts solely in its trust capacity, and not
in its individual capacity.
ARTICLE VII
COMPENSATION, REIMBURSEMENT AND INDEMNIFICATION
OF THE OWNER TRUSTEE
SECTION 7.1 Compensation of the Owner Trustee. The Owner Trustee
shall be entitled to reasonable compensation from the Depositor for its
services hereunder as shall be agreed upon in a separate agreement between the
Depositor and the Owner Trustee. The Owner Trustee shall be reimbursed for all
disbursements, expenses and advances incurred or made by it, including the
reasonable compensation, disbursements and expenses of the Owner Trustee's
agents and counsel.
SECTION 7.2 Reimbursement and Indemnification of the Owner Trustee.
(a) The Owner Trustee shall be entitled to be reimbursed for its
reasonable expenses (including reasonable attorneys' fees) incurred in the
performance of its duties as Owner Trustee hereunder, and to be compensated
reasonably for any extraordinary services rendered under Section 5.1(b),
except to the extent that such expenses arise out of or result from (i) the
Owner Trustee's own willful misconduct, bad faith or gross negligence, (ii)
the inaccuracy of any of the Bank's representations or warranties contained in
Section 6.2 of this Agreement, (iii) taxes based on or measured by any fees,
commissions or compensation received by the Owner Trustee for acting as such
in connection with any of the transactions contemplated by this Agreement or
any other Operative Agreements, and (iv) the Owner Trustee's failure to use
reasonable care to receive, manage and disburse moneys actually received by it
in accordance with the terms hereof.
(b) Subject to Section 7.2(c) hereof, the Bank is hereby indemnified
and held harmless by the Depositor from and against any and all liabilities,
obligations, indemnity obligations, losses (excluding loss of anticipated
profits), damages, claims, actions, suits, judgments, out-of-pocket costs,
expenses and disbursements (including legal and consultants' fees and
expenses) and taxes of any kind and nature whatsoever (collectively, the
"Liabilities") which may be imposed on, incurred by or asserted at any time
against the Bank or the Owner Trustee in any way relating to or arising out of
the Trust Estate, any of the properties included therein, the administration
of the Trust Estate or any action or inaction of the Owner Trustee hereunder
or under the Operative Agreements, except to the extent that such Liabilities
arise out of or result from (i) the Owner Trustee's own willful misconduct,
bad faith or gross negligence, (ii) the inaccuracy of any of the Bank's
representations or warranties contained in Section 6.2 of this Agreement,
(iii) taxes based on or measured by any fees, commissions or compensation
received by the Owner Trustee for acting as such in connection with any of the
transactions contemplated by this Agreement or any other Operative Agreement,
and (iv) the Owner Trustee's failure to use reasonable care to receive, manage
and disburse moneys actually received by it in accordance with the terms
hereof. The indemnities contained in this Section 7.2(b) shall survive the
termination of this Agreement and the removal or resignation of the Owner
Trustee hereunder.
(c) Any reimbursements and indemnities to the Owner Trustee pursuant
to this Section 7.2 shall be payable solely: first, out of amounts on deposit
in the Certificate Account prior to any payments on the Owner Trust
Certificate, second, to the extent not paid pursuant to clause first within 60
days of first being incurred, by the Certificateholders, on a joint and
several basis, and third, to the extent not paid pursuant to clause first and
second within 60 days of first being incurred, by the Depositor.
SECTION 7.3 Not Obligations of the Trust. None of the fees, expenses
and other liabilities referred to in Sections 7.1 and 7.2 shall be obligations
of the Trust or otherwise chargeable to the Trust Estate provided that the
Owner Trustee is authorized to pay such amounts from the Certificate Account
in accordance with Section 3.2. The Owner Trustee hereby agrees not to cause
or participate in the filing of a petition in bankruptcy against the Trust for
the nonpayment to the Owner Trustee of any amounts provided by this Agreement
until 91 days after the payment in full of all the Notes issued under the
Indenture.
ARTICLE VIII
TERMINATION OF AGREEMENT
SECTION 8.1 Termination. The Trust shall not be dissolved or
terminated under this Section 8.1 until the Notes have been paid in full and
the Lien on the Trust Estate created by the Indenture has been released.
The Trust may be dissolved by the Certificateholders at any time
prior to the issuance of the Notes and the pledge of the Trust Estate pursuant
to the Indenture, and at any time after the Indenture is discharged in
accordance with Article III thereof. After payment of all amounts in the order
set forth in Section 3.2, all right, title and interest in the Trust Estate
still held by the Owner Trustee at the time of such dissolution shall be
transferred, assigned and paid over to the Certificateholders or their
designee in proportion to their Percentage Interests in accordance with
Section 8.2, and thereafter, upon acceptance of written instructions from the
Certificateholder, the Owner Trustee shall file a certificate of cancellation
under Section 3810 of the Business Trust Statute and the Trust shall
terminate.
SECTION 8.2 Further Assurances by the Owner Trustee upon Termination.
Upon dissolution of this Trust, subject to Section 8.1, the Owner
Trustee shall take such action as may be requested by, and at the expense of,
the Certificateholders owning a majority of the Percentage Interests to
transfer the remaining assets of the Trust to the Certificateholders or the
Certificateholders' designee, including the execution of instruments of
transfer or assignment with respect to the Underlying Certificate and any of
the Operative Agreements to which the Trust is a party.
SECTION 8.3 Insolvency of a Certificateholder. The insolvency or
other similar incapacity of a Certificateholder shall not (i) operate to
terminate this Agreement and the Trust, (ii) entitle the Certificateholder's
legal representatives to claim an accounting or to take any action in any
court for a partition or winding up of the Trust Estate or (iii) otherwise
affect the rights, obligations and liabilities of the parties hereto.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES
SECTION 9.1 Resignation of the Owner Trustee; Appointment of
Successor.
(a) The Owner Trustee may resign at any time (and shall immediately
resign if it ceases to be an Eligible Trustee) by giving at least 60 days
written notice to the Certificateholders, the Depositor, the Indenture Trustee
and the Administrator, such resignation to be effective on the acceptance of
appointment by a successor Owner Trustee under Section 9.1 (b) hereof. The
Depositor shall remove the Owner Trustee by written notice, a copy of which
shall be concurrently delivered by the Depositor to the Certificateholders,
the Indenture Trustee and the Administrator, if the Owner Trustee ceases to be
an Eligible Trustee and fails to resign immediately. The Owner Trustee
otherwise may be removed with or without cause at any time by the
Certificateholders with 60 days' prior written notice, a copy of which shall
be concurrently delivered by the Certificateholders to the Depositor, the
Indenture Trustee and the Administrator. Any such removal shall be effective
upon the acceptance of appointment by a successor Owner Trustee under Section
9.1 (b) hereof. In case of the resignation or removal of the Owner Trustee,
the Certificateholders may appoint a successor Owner Trustee by an instrument
signed by the Certificateholders. If a successor Owner Trustee shall not have
been appointed within 60 days after the giving of written notice of such
resignation or the delivery of the written instrument with respect to such
removal, the Owner Trustee, the Depositor, the Indenture Trustee, the
Administrator or the Certificateholders may apply to any court of competent
jurisdiction to appoint a successor Owner Trustee to act until such time, if
any, as a successor shall have been appointed and shall have accepted its
appointment as above provided. Any successor Owner Trustee so appointed by
such court shall immediately and without further act be superseded by any
successor Owner Trustee appointed as above provided within one year from the
date of the appointment by such court.
(b) Any successor Owner Trustee, however appointed, shall execute and
deliver to the predecessor Owner Trustee and the Indenture Trustee an
instrument accepting such appointment and shall furnish a photocopy of such
instrument to the Certificateholders and the Rating Agencies, and thereupon
such successor Owner Trustee, without further act, shall become vested with
all the estates, properties, rights, powers, duties and trusts of the
predecessor Owner Trustee herein; but nevertheless, upon the written request
of such successor Owner Trustee such predecessor Owner Trustee shall execute
and deliver an instrument transferring to such successor Owner Trustee, upon
the trusts herein expressed, all the estates, properties, rights, powers,
duties and trusts of such predecessor Owner Trustee and such predecessor Owner
Trustee shall duly assign, transfer, deliver and pay over to such successor
Owner Trustee all moneys or other property then held by such predecessor Owner
Trustee upon the trusts herein expressed.
(c) Any successor Owner Trustee shall be an Eligible Trustee,
willing, able and legally qualified to perform the duties of the Owner Trustee
hereunder.
(d) Any Person into which the Owner Trustee may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which the Owner Trustee shall be a
party, or any Person to which substantially all the corporate trust business
of the Owner Trustee may be transferred, shall, subject to the terms of
Section 9.1(c) hereof, be the Owner Trustee under this Agreement without any
further act.
SECTION 9.2 Co-Trustees and Separate Trustees. Whenever the Owner
Trustee or the Indenture Trustee shall deem it necessary or prudent in order
to conform to any law of any jurisdiction in which all or any part of the
Trust Estate shall be situated or to make any claim or be a party to any suit
with respect to the Trust Estate, the Owner Trust Certificates, the Notes or
any Operative Agreement, or the Owner Trustee or the Indenture Trustee shall
be advised in writing by counsel reasonably satisfactory to each of them that
it is so necessary or prudent, the Owner Trustee and the Certificateholders
shall execute and deliver an agreement supplemental hereto and all other
instruments and agreements, and shall take all other action, necessary or
proper to constitute one or more Persons, who need not meet the requirements
of Section 9.1(c) hereof (and the Owner Trustee may appoint one or more of its
officers), either as co-trustees or co-trustees jointly with the Owner Trustee
of all or any part of the Trust Estate, or as separate trustee or separate
trustees of all or any part of the Trust Estate, and to vest in such Persons,
in such capacity, such title to the Trust Estate or any part thereof and such
rights or duties as may be necessary or desirable, all for such period and
under such terms and conditions as are reasonably satisfactory to the Owner
Trustee and the Certificateholders. In case any co-trustee or separate trustee
shall die, become incapable of acting, resign or be removed, the title to the
Trust Estate and all rights end duties of such co-trustee or separate trustee
shall, so far as permitted by law, vest in and be exercised by the Owner
Trustee, without the appointment of a successor to such co-trustee or separate
trustee.
SECTION 9.3 Notice. At all times that a successor Owner Trustee is
appointed under Section 9.1 hereof, an Owner Trustee resigns pursuant to such
Section 9.1 or a co-trustee or separate trustee is appointed pursuant to
Section 9.2 hereof, the Certificateholders promptly shall give notice of such
fact to the Rating Agencies, if the Indenture has not been discharged.
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
SECTION 10.1 Supplements and Amendments. Subject to Sections 10.2 and
10.3 of this Agreement, at the written request of the Certificateholders, this
Agreement may be amended by a written instrument signed by the Owner Trustee
and the Certificateholders (and, if its rights hereunder are adversely
affected, the Depositor), but if in the opinion of the Owner Trustee any
instrument required to be so executed materially and adversely affects any
right, duty or liability of, or immunity or indemnity in favor of the Bank or
the Owner Trustee under this Agreement or any of the other Operative
Agreements to which the Owner Trustee is a party, or would cause or result in
any conflict with or breach of any terms, conditions or provisions of, or
default under, the Bank's charter documents or by-laws or any document
contemplated hereby to which the Owner Trustee is a party, the Owner Trustee
may in its sole discretion decline to execute such instrument.
In the event that there is more than one Certificateholder (as shown
on the Certificate Register), the consent to an amendment by
Certificateholders owning a majority of the Percentage Interests shall be
sufficient to bind all of such Holders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing
of, payments received on any Owner Trust Certificate without the consent of
the affected Holder; or (ii) amend this Section 10.1, without the consent of
all of the Holders then outstanding.
SECTION 10.2 Limitation on Amendments. Notwithstanding Section 10.1
or Section 10.3 hereof, the Owner Trustee shall not, without the consent of
the Indenture Trustee, amend Section 8.1 of this Agreement, or execute any
amendment that, to the actual knowledge of a Responsible Officer of the Owner
Trustee, will result in the Trust being terminated prior to the satisfaction
and discharge of the Lien of the Indenture on the Trust Estate. Furthermore,
notwithstanding Section 10.1 or Section 10.3 hereof, so long as the Notes
remain outstanding, the Owner Trustee shall not execute any amendment without
receiving written confirmation from each of the Rating Agencies that such
amendment will not result in the qualification, downgrade or withdrawal of any
then-current rating on the Notes, as obtained by the party seeking such
amendment.
SECTION 10.3 Additional Amendment Provisions.
(a) It shall not be necessary for the consent of the
Certificateholders under this Article X 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 shall be subject to such reasonable
regulations as the Owner Trustee may prescribe.
(b) The Owner Trustee, at any time from time to time, upon the
request of the Administrator but without the consent of the
Certificateholders, may amend this Agreement to modify, eliminate or add to
any of its provisions, to such extent as shall be necessary to prevent or
reduce the imposition on the Trust of any material federal, state or local
taxes, at all time prior to the liquidation of the Trust; provided, however,
that such action, as evidenced by an Opinion of Counsel acceptable to the
Owner Trustee, is necessary or helpful to prevent the imposition on the Trust
of any such taxes.
(c) Prior to the execution of any amendment to this Agreement, the
Owner Trustee shall be entitled to receive and rely upon an Opinion of
Counsel, at the expense of the party requesting such amendment (or, if such
amendment is requested by the Owner Trustee, then at the expense of the
Depositor) stating that the execution of such amendment is authorized or
permitted by this Agreement.
(d) Notwithstanding any other provision of this Agreement to the
contrary, no modification, change or amendment of this Agreement which affects
the duties of the Administrator shall be effective without the written consent
of the Administrator.
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE DEPOSITOR
SECTION 11.1 Representations and Warranties of the Depositor.
(a) The Depositor represents and warrants as follows for the benefit
of the Owner Trustee, the Indenture Trustee, the Noteholders and any
Certificateholder:
(i) the Depositor is a federally insured savings bank duly
organized, validly existing and in good standing under the laws of
the United States, has full power and authority, and has taken all
action necessary, to execute and deliver this Agreement, and any and
all other documents to be executed or delivered by it in connection
with this Agreement, and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement, and this
Agreement and such other documents executed in connection herewith
are the legal, valid and binding obligations of the Depositor,
enforceable against it in accordance with their respective terms,
except as such terms may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights
of creditors generally (and the rights of creditors of
federally-chartered savings banks in particular) and by general
principles of equity;
(ii) the execution and delivery of this Agreement and each
other document to be executed or delivered by it in connection with
this Agreement, and the .performance of its obligations hereunder and
thereunder by the Depositor will not violate the provisions of its
charter or bylaws, conflict with any provision of any law or
regulation to which it is subject, or conflict with, result in a
breach of, or constitute a default under any of the terms, conditions
or provisions of, any agreement or instrument to which the Depositor
is a party or by which it is bound (including the Underlying
Agreement), or any order or decree applicable to the Depositor, or
result in the creation or imposition of any Lien on any of the
Depositor's assets or property, which would materially and adversely
affect the ability of the Depositor to carry out the transactions
contemplated by this Agreement or such other documents executed in
connection herewith; no consent, approval, authorization or order of
or filing with or notice to any court or governmental agency or body
(including, without limitation, the Office of Thrift Supervision, the
Federal Deposit Insurance Corporation or any other governmental
entity having regulatory authority over the Depositor) is required
for the execution, delivery and performance by the Depositor of this
Agreement or such other documents;
(iii) there is no action, suit or proceeding pending against
the Depositor in any court or by or before any other governmental
agency or instrumentality which would materially and adversely affect
the validity of the Underlying Certificate or the ability of the
Depositor or the Certificateholders to carry out the transactions
contemplated by this Agreement; and
(iv) as of the Closing Date, that immediately prior to the
conveyance of the Underlying Certificate to the Trust, the Depositor
had good title to, and was the sole owner of, the Underlying
Certificate, free and clear of any pledge, lien, encumbrance or
security interest and such assignment validly transfers all right,
title and interest of the Underlying Certificate to the Trust, free
and clear of any pledge, lien, encumbrance or security interest.
After giving effect to such assignment, the Trust has all right,
title and interest in the Underlying Certificate free and clear any
pledge, lien, encumbrance or security interest, other than such
pledge, lien, encumbrance and security interest created under the
Indenture.
(b) It is understood and agreed that each of the foregoing
representations and warranties of the Depositor shall survive delivery of the
Underlying Certificate to the Trust. Upon discovery or receipt of notice by
the Depositor or a Responsible Officer of the Owner Trustee of a breach of any
of the foregoing representations and warranties that materially and adversely
affects the interests of the Indenture Trustee for the benefit of the
Noteholders or the Owner Trustee for the benefit of the Certificateholders in
the Underlying Certificate, the party discovering such breach shall give
prompt written notice to the other party hereto and to the Indenture Trustee.
SECTION 11.2 Accrued Interest, Etc. The Depositor agrees that any
income, interest, fees and other payments that it may receive in respect of
the Underlying Certificate applicable to a period on or after the Closing Date
shall inure to the benefit of the Trust, and the Depositor shall pay such
amounts to the Indenture Trustee to be remitted in accordance with the
Indenture promptly upon receipt (but in no event later than one Business Day
thereafter).
SECTION 11.3 Additional Covenants of the Depositor. The Depositor
hereby covenants and agrees for the benefit of the Owner Trustee, the
Indenture Trustee, the Noteholders and the Certificateholders that:
(a) The business and affairs of the Depositor will be managed by or
under the direction of its board of directors in accordance with its charter
and by-laws. The Depositor will keep correct and complete books and records of
accounts and minutes of the meetings and other proceedings of the board of
directors. Any such resolutions, agreements and other instruments will be
continuously maintained as official records by the Depositor.
(b) The Depositor will at all times ensure that its capitalization is
adequate in light of its business and purposes. The Depositor will pay from
its own funds and assets (and not the Trust's) all obligations and
indebtedness incurred by it.
(c) The Depositor will not conduct its business in the name of the
Trust.
(d) The Depositor will not guarantee any obligations of the Trust
(including the Notes or the Owner Trust Certificates). The Depositor will not
operate or purport to operate as an integrated, single economic unit with
respect to the Trust or seek or obtain credit or incur any obligation to any
third party based on the assets of the Trust or induce any such third party to
reasonably rely on the creditworthiness of the Trust in connection therewith.
(e) The accounting records of the Depositor will disclose the effect
of the transactions in accordance with statutory accounting practices and
relevant pronouncements.
(f) The Depositor hereby acknowledges, and agrees for the benefit of
the Indenture Trustee, the Noteholders and the Certificateholders to perform,
each obligation imposed upon it under the Indenture.
ARTICLE XII
TRANSFER OF OWNER TRUST CERTIFICATES
SECTION 12.1 Registration of Transfer and Exchange of Owner Trust
Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of a registrar appointed by the Depositor (the
"Certificate Registrar") a register (the "Certificate Register") in which,
subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Owner Trust Certificates and of transfers and exchanges of Owner Trust
Certificates as herein provided. The Owner Trustee is hereby initially
appointed (and hereby agrees to act in accordance with the terms hereof) as
Certificate Registrar for the purpose of registering Owner Trust Certificates
and transfers and exchanges of Owner Trust Certificates as herein provided.
The Owner Trustee may appoint, by a written instrument delivered to the
Depositor, any other bank or trust company to act as Certificate Registrar
under such conditions as the Owner Trustee may prescribe, provided that the
Owner Trustee shall not be relieved of any of its duties or responsibilities
hereunder as Certificate Registrar by reason of such appointment. If the Owner
Trustee resigns or is removed in accordance with the terms hereof, the
successor trustee shall immediately succeed to its predecessor's duties as
Certificate Registrar. The Depositor, the Administrator and the Owner Trustee
shall have the right to inspect the Certificate Register or to obtain a copy
thereof at all reasonable times, and to rely conclusively upon a certificate
of the Certificate Registrar as to the information set forth in the
Certificate Register.
(b) No transfer, sale, pledge or other disposition of any Owner Trust
Certificate or interest therein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act
and such state securities laws. Neither the Issuer nor any trust fund in which
an Underlying Certificate evidences a beneficial ownership interest has been
registered as an investment company under the Investment Company Act, and no
transfer of an Owner Trust Certificate may be made (i) to any Person other
than a QIB or an Affiliate of the Depositor or (ii) to any Person that would
require the Issuer or any such trust fund to be registered as an investment
company under the Investment Company Act. If such transfer is to be made to
any Person who is not an Affiliate of the Depositor, then the Certificate
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
B-1 hereto and a certificate from such Certificateholder's prospective
transferee substantially in the form attached as Exhibit B-2 hereto. None of
the Trust, the Depositor, the Owner Trustee or the Certificate Registrar is
obligated to register or qualify any Owner Trust Certificate under the
Securities Act or any other securities laws or to take any action not
otherwise required under this Agreement to permit the transfer of any Owner
Trust Certificate or interest therein without registration or qualification.
Any Certificateholder desiring to effect a transfer of an Owner Trust
Certificate or an interest therein shall, and does hereby agree to, indemnify
the Issuer, the Depositor, the Administrator, the Owner Trustee, the Indenture
Trustee and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal
and state laws.
(c) No transfer of any Owner Trust Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx
plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, including, without limitation,
insurance company general accounts, that is subject to ERISA or the Code
(each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Owner Trust Certificate or interest therein on behalf of, or
with assets of, a Plan.
(d) The Owner Trust Certificates shall bear a legend describing or
referencing the restrictions on transferability set forth in Sections 12.1 (b)
and (c).
(e) Subject to compliance with Sections 12.1(b) and (c), upon
surrender for registration of transfer of the Owner Trust Certificates at the
office of the Certificate Registrar or at the office of its Agent in
Wilmington, Delaware, the Owner Trustee shall execute, and the Certificate
Registrar shall deliver and authenticate, in the name of the designated
transferee or transferees, one or more new Owner Trust Certificates, in
authorized denominations, evidencing in the aggregate a like aggregate
Percentage Interest and dated the date of authentication by the Certificate
Registrar.
(f) At the option of any Certificateholder, Owner Trust Certificates
may be exchanged for other Owner Trust Certificates, in authorized
denominations, evidencing in the aggregate a like aggregate Percentage
Interest upon surrender of the Owner Trust Certificates to be exchanged at the
office of the Certificate Registrar, or the office of its Agent in Wilmington,
Delaware. Whenever any Owner Trust Certificates are so surrendered for
exchange, the Owner Trustee shall execute and the Certificate Registrar shall
authenticate and deliver, the Owner Trust Certificates which the
Certificateholder is entitled to receive.
(g) If the Owner Trustee or the Certificate Registrar so requires,
every Owner Trust Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by, the Certificateholder thereof or such
person's attorney duly authorized in writing.
(h) No service charge shall be made to the requesting
Certificateholder for any registration of transfer or exchange of Owner Trust
Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed or any
reasonable expenses in connection with any registration of transfer or
exchange of Owner Trust Certificates.
(i) The Certificate Registrar shall cancel and retain or destroy, in
accordance with the Owner Trustee's retention policy then in effect, all Owner
Trust Certificates surrendered for registration of transfer or exchange.
SECTION 12.2 Mutilated, Destroyed, Lost or Stolen Owner Trust
Certificates.
If (i) any mutilated Owner Trust Certificate is surrendered to the
Owner Trustee or the Certificate Registrar, or the Owner Trustee and the
Certificate Registrar receive evidence to their satisfaction of the
destruction, loss or theft of any Owner Trust Certificate, and (ii) there is
delivered to the Owner Trustee and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of actual knowledge by a Responsible Officer of the Owner Trustee
or the Certificate Registrar that such Owner Trust Certificate has been
acquired by a bona fide purchaser, the Owner Trustee shall execute and the
Certificate Registrar shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Owner Trust Certificate,
a new Owner Trust Certificate of like tenor. Upon the issuance of any new
Owner Trust Certificate under this Section 12.2, the Owner 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 Certificate Registrar) connected therewith. Any
replacement Owner Trust Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership of the
corresponding interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Owner Trust Certificate shall be found at any
time and such original Owner Trust Certificate shall thereby be deemed
canceled.
SECTION 12.3 Persons Deemed Owners. Prior to due presentation of an
Owner Trust Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar, the Indenture Trustee and any agent of any of them may
treat the Person in whose name any Owner Trust Certificate is registered as
the owner of such Owner Trust Certificate for the purpose of receiving
distributions pursuant to Section 4.2 hereof and for all other purposes
whatsoever, and neither the Owner Trustee, the Certificate Registrar, the
Indenture Trustee nor any agent of any of them shall be affected by notice to
the contrary.
SECTION 12.4 Access to Names and Addresses.
(a) If any Certificateholder, the Depositor, the Indenture Trustee or
the Administrator (each, in such capacity, an "Applicant") applies in writing
to the Owner Trustee, and such application states that the Applicant desires
to communicate with Certificateholders with respect to their rights under this
Agreement or the Owner Trust Certificates and is accompanied by a copy of the
communication which such Applicant proposes to transmit, then the Owner
Trustee shall, at the expense of such Applicant, within ten Business Days
after the receipt of such application, furnish or cause to be furnished to
such Applicant a list of the names and addresses of the Certificateholders as
set forth in the Certificate Register.
(b) Every Certificateholder consents to the disclosure to any
Applicant of its identity and status as a Certificateholder and agrees with
the Owner Trustee that the Owner Trustee and the Certificate Registrar shall
not be held accountable in any way by reason of the disclosure of any
information as to the names and addresses of the Certificateholders hereunder,
regardless of the source from which such information was derived.
SECTION 12.5 Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or
by agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Owner Trustee. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Agreement and conclusive in favor of the Owner Trustee, if
made in the manner provided in this Section 12.5.
(b) The fact and date of the execution by any Certificateholder of
any such instrument or writing may be proved in any reasonable manner which
the Owner Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other action by a Certificateholder shall bind every transferee of
every Owner Trust Certificate issued upon the registration of transfer of such
Certificateholder's Owner Trust Certificate or in exchange therefor or in lieu
thereof, in respect of anything done, or omitted to be done, by the Owner
Trustee, in reliance thereon, whether or not notation of such action is made
upon such Owner Trust Certificate.
(d) The Owner Trustee may require such additional proof of any matter
referred to in this Section 12.5 as it shall deem necessary.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 No Legal Title to Trust Estate in the
Certificateholders. The Certificateholders shall not have legal title to any
part of the Trust Estate; provided, however, that the Certificateholders have
a beneficial interest in the Trust Estate (and initially shall have all right,
title and interest in and to the Owner Trust Certificates). No transfer by
operation of law or otherwise of any right, title or interest of the
Certificateholders in and to the Trust Estate or hereunder shall operate to
terminate this Agreement or the Trust or the trusts hereunder or entitle any
successor or transferee to an accounting or to the transfer to it of legal
title to any part of the Trust Estate.
SECTION 13.2 Action by the Owner Trustee is Binding. Any actions,
directions, approvals or consents by the Owner Trustee so long as such
actions, directions, consents or approvals are made pursuant to the terms of
this Agreement shall bind the Certificateholders and shall be effective to
consent to action taken by the parties. No such party shall be required to
inquire as to the authorization, necessity, expediency or regularity of such
consent by the Owner Trustee.
SECTION 13.3 Limitation on Rights of Others. Nothing in this
Agreement, whether express or implied, shall be construed to give to any
Person, other than the Bank, the Owner Trustee, the Depositor and the
Certificateholders, any legal or equitable right, remedy or claim under or in
respect of this Agreement, except as set forth in Section 13.15.
SECTION 13.4 Notices. All demands, notices and communications
hereunder shall be in writing, may be given by facsimile transmission, shall
be deemed to have been given upon receipt (except that notices being sent by
first class mail, postage prepaid, shall be deemed to be received five
Business Days following the mailing thereof) as follows: (i) in the case of
the Owner Trustee, [Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000], Attention: [Corporate Trust Administration]; (ii) in the case
of the Depositor, [IndyMac Bank, F.S.B.], [155 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000], Attention: [__________]; (iii) in the case of the Indenture
Trustee and the Rating Agencies, as set forth in the Indenture; and (iv) in
the case of a Certificateholder, to that Person's name and address as set
forth from time to time in the Certificate Register; or as to each such Person
such other address and/or facsimile number as any of them shall specify by
written notice to the other parties.
SECTION 13.5 Severability. To the extent permitted by law, any
provision of this Agreement that may be determined by competent authority to
be prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 13.6 Limitation on the Depositor's and the
Certificateholder's Respective Liability.
Neither the Depositor nor any Certificateholder shall have any
liability for the performance of this Agreement except as expressly set forth
herein.
SECTION 13.7 Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 13.8 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Bank,
the Owner Trustee and its successors and assigns, the Certificateholders and
the Depositor and its or their respective successors and assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by the Depositor shall bind the successors and assigns of
the Depositor and any request, notice, direction, consent, waiver or other
instrument or action by a Certificateholder shall bind the successors and
assigns of such Certificateholder.
SECTION 13.9 Headings. The headings of the various articles and
sections herein are for convenience of reference only and shall not define or
limit any of the terms or provision hereof.
SECTION 13.10 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 13.11 Administration of Trust. The principal place of
administration of the Trust shall be in the State of Delaware.
SECTION 13.12 Performance by the Depositor or the Administrator. Any
obligation of the Owner Trustee hereunder or under any Operative Agreement or
other document contemplated herein may be performed by the Depositor or the
Administrator and any such performance shall not be construed as a revocation
of the trusts created hereby.
SECTION 13.13 No Implied Waiver. No term or provision of this
Agreement may be changed, waived, discharged or terminated orally, but only by
an instrument in writing entered into as provided in Section 10.1 hereof; and
any such waiver of the terms hereof shall be effective only in the specific
instance and for the specific purpose given.
SECTION 13.14 Third Party Beneficiary. The Indenture Trustee for the
benefit of the Noteholders is an intended third-party beneficiary of this
Agreement from and including the date hereof to the date on which the Lien on
the Trust Estate created pursuant to the Indenture is satisfied, discharged
and released pursuant to Article III of the Indenture and shall be entitled to
rely upon and directly enforce the provisions of this Agreement.
SECTION 13.15 References. The definitions in Article I shall apply
equally to both the singular and plural forms of the terms defined. "Include",
"included", "includes" and "including" shall be deemed to be followed by
"without limitation". "Writing", "written" and comparable terms refer to
printing, typing, lithography or other means of reproducing words in a visible
form. Any agreement or instrument or any law, rule or regulation of any
Governmental Authority defined or referred to in Article I means such
agreement or instrument or such law, rule or regulation as from time to time
amended, modified or supplemented in accordance with the terms thereof,
including (in the case of agreements or instruments) by waiver or consent and
(in the case of such law, rule or regulation) by succession of any comparable
successor law, rule or regulation and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein. References to a Person are also to its successors and
permitted assigns. Any term defined above by reference to any agreement or
instrument or any law, rule or regulation of any Governmental Authority has
such meaning whether or not such agreement, instrument or law, rule or
regulation is in effect. "Agreement", "hereof', "herein", "hereto",
"hereunder" and comparable terms refer to this Agreement (including all
exhibits and schedules hereto) and not to any particular article, section,
clause or other subdivision hereof or attachment hereto. References to any
gender include, unless the context otherwise requires, references to all
genders, and references to the singular include, unless the context other
requires, references to the plural and vice versa. References in this
Agreement to "Article", "Section", "Clause" or another subdivision or to an
attachment are, unless the context otherwise requires, to an article, clause
or subdivision of or attachment to this Agreement.
SECTION 13.16 Tax Matters.
(a) It is the intention of the parties hereto that, solely for income
and franchise tax purposes, the Trust, shall be treated as a partnership if,
for federal income tax purposes, the Trust is considered to have more than one
Certificateholder, or as a division of the Certificateholder that is ignored
as an entity separate from the Certificateholder if, for federal income tax
purposes, there is a single Certificateholder. The parties agree that, unless
otherwise required by appropriate tax authorities, the Trust will file or
cause to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust, as it relates to the assets
in the Trust and the Owner Trust Certificates, as a partnership or division of
the Certificateholder, as just described, for such tax purposes.
(b) Net income of the Trust for any month as determined for federal
income tax purposes (and each item of income, gain, loss, credit and deduction
entering into the computation thereof) shall be allocated to the
Certificateholders, and apportioned among the Certificateholders pro rata
based upon their respective Percentage Interests.
(c) The Administrator shall (i) deliver (or cause to be delivered) to
each Certificateholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required (including Schedule K-1 to
IRS Form 1065, if the Trust, is treated as a partnership for federal income
tax purposes, to enable each Certificateholder to prepare its federal and
state income tax returns, (ii) prepare or cause to be prepared, and file or
cause to be filed, all tax returns relating to the Trust (including a
partnership information return, IRS Form 1065), if the Trust, is treated as a
partnership for and direct the Owner Trustee in writing to make such elections
as may from time to time be required or appropriate under any applicable state
or federal statute or rule or regulation thereunder so as to maintain the
characterization of the Trust as a partnership or division of a single
Certificateholder, as the case may be, for federal income tax purposes and
(iii) prepare or cause to be prepared, and file or cause to be filed, deliver
or cause to be delivered any annual or other necessary returns, reports or
forms relating to the Notes and the Owner Trust Certificates (including
information returns on IRS Form 1099). The Trust shall make all elections
pursuant to this Section as directed in writing by the Administrator. The
Owner Trustee shall sign all tax information returns relating to the Owner
Trust Certificates, if any, furnished to it in execution form by the
Administrator and any other returns as may be required by law and so furnished
to it by and at the written direction of the Administrator, and in doing so
shall be entitled to, and shall be fully protected if it shall, rely entirely
upon, and shall have no liability for information provided by, or calculations
provided by, the Administrator. All tax returns shall be signed by the
Depositor, and if the Depositor shall no longer hold any Owner Trust
Certificates, the Certificateholder holding of the greatest amount of
Percentage Interest, unless some other party is required by law to sign such
return (in which case such other party shall sign). If the Trust is
characterized as a partnership for federal income tax purposes the Depositor,
and if the Depositor shall no longer hold any Owner Trust Certificates, the
Certificateholder holding of the greatest amount of Percentage Interest, shall
be the "tax matters partner" of the Trust pursuant to the Code.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the date hereof.
[INDYMAC BANK, F.S.B.],
as Depositor
By:
-------------------------------------------------
Name:
Title:
[WILMINGTON TRUST COMPANY],
in its individual capacity and as Owner Trustee
By:
-------------------------------------------------
Name:
Title:
EXHIBIT A
[FORM OF OWNER TRUST CERTIFICATE]
INDYMAC TRUST SPMD [ ]
OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid % beneficial interest in IndyMac Trust
SPMD [ ], a Delaware business trust whose assets include a 100% percentage
interest in Home Equity Mortgage Loan Asset Backed Trust, Series SPMD [ ],
Class X Certificates (the "Underlying Certificate") deposited by [IndyMac
Bank, F.S.B.] (the "Depositor").
Date of Deposit Trust Agreement: Percentage Interest in Trust Evidenced
[ ] by this Owner Trust Certificate: ____%
Depositor: [IndyMac Bank, F.S.B.] Closing Date: [ ]
Owner Trust Certificate No. ____ Owner Trustee: [Wilmington Trust Company]
THIS OWNER TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN, OR
OBLIGATION OF, THE DEPOSITOR, THE OWNER TRUSTEE, ANY OF THEIR RESPECTIVE
AFFILIATES, OR ANY OTHER PERSON. NEITHER THIS OWNER TRUST CERTIFICATE NOR THE
UNDERLYING CERTIFICATE ARE INSURED OR GUARANTEED, IN WHOLE OR IN PART, BY ANY
GOVERNMENTAL ENTITY OR INSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.
THIS OWNER TRUST CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO
SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT
FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 12.1 OF THE TRUST
AGREEMENT (AS DEFINED HEREIN).
NO TRANSFER OF THIS OWNER TRUST CERTIFICATE TO (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH, A "PLAN") SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR
THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS OWNER TRUST CERTIFICATE OR INTEREST
HEREIN ON BEHALF OF, OR WITH ASSETS OF, A PLAN WILL BE REGISTERED.
This Owner Trust Certificate is issued pursuant to, and in
accordance with, the terms of a Deposit Trust Agreement, dated as of [ ] (the
"Trust Agreement"; terms not otherwise defined herein shall have the meanings
assigned to those terms in the Trust Agreement), between [IndyMac Bank,
F.S.B.], as depositor (the "Depositor") and [Wilmington Trust Company], as
owner trustee (the "Owner Trustee"), a summary of certain of the pertinent
provisions of which are set forth herein. This Owner Trust Certificate is
issued under and is subject to the terms, provisions and conditions of the
Trust Agreement, to which Trust Agreement the holder of this Owner Trust
Certificate by virtue of the acceptance hereof assents and by which such
Certificateholder is bound. In the event of a conflict between the provisions
of this Owner Trust Certificate and those of the Trust Agreement, the
provisions of the Trust Agreement shall control.
This certifies that ____________________ (the "Certificateholder") is
the registered owner of the beneficial interest evidenced by this Owner Trust
Certificate in the trust established pursuant to the Trust Agreement and
designated as IndyMac Trust SPMD [ ] (the "Trust"). The assets of the Trust
include the Underlying Certificate and the proceeds thereof.
Except to the extent of their execution and authentication,
respectively, of the Owner Trust Certificates, the Owner Trustee and the
Certificate Registrar make no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of this Owner Trust
Certificate, the Underlying Certificate or the assets in which the Underlying
Certificate evidence an interest. The Owner Trustee has executed this Owner
Trust Certificate in its limited capacity as Owner Trustee under the Trust
Agreement, and the Certificate Registrar has authenticated this Owner Trust
Certificate in its limited capacity as Certificate Registrar under the Trust
Agreement.
Distributions on the Owner Trust Certificates will be made, to the
extent of available funds, on the first Business Day following the Underlying
Distribution Date of such month in each case, commencing in [ ]. As more fully
described in the Trust Agreement, distributions allocable to the Owner Trust
Certificates will be made on each Payment Date up to the amount of
Certificateholder Funds for the related Payment Date and, to the extent not
previously paid, for all prior Payment Dates. As and to the extent described
in the Trust Agreement, distributions of Certificateholder Funds will be
limited to the amount available for such purpose in the Certificate Account.
Pursuant to the Trust Agreement, all payments made with respect to
the Owner Trust Certificates on any Payment Date shall be allocated pro rata
among the Certificateholders based upon their respective Percentage Interests.
Payments to the Certificateholders on each Payment Date will be made to the
Certificateholders of record on the related Record Date. Payments to any
Certificateholder on any Payment Date shall be made by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Owner Trustee in writing at least
five Business Days prior to the related Record Date and if such
Certificateholder is the registered owner of Owner Trust Certificates
representing at least a [331/3]% Percentage Interest, or otherwise by check
mailed by first class mail to the address of such Certificateholder appearing
in the Certificate Register. Final payment on each Owner Trust Certificate
will be made in like manner, but only upon presentment and surrender of such
Owner Trust Certificate at the Corporate Trust Office or such other location
specified in the notice to Certificateholders of such final payment.
This Owner Trust Certificate is one of a duly authorized issue of
Owner Trust Certificates designated as "IndyMac Trust SPMD [ ], Owner Trust
Certificates," representing a fractional undivided beneficial interest in the
Trust created by the Trust Agreement.
This Owner Trust Certificate does not purport to summarize the Trust
Agreement and reference is made to the Trust Agreement for the interests,
rights and limitations of rights, benefits, obligations and duties evidenced
hereby and the rights, duties and immunities of the Owner Trustee.
No transfer, sale, pledge or other disposition of this Owner Trust
Certificate or interest herein shall be made unless that transfer, sale,
pledge or the disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws,
or is otherwise made in accordance with the Securities Act and such state
securities laws. Neither the Issuer nor any trust fund in which an Underlying
Certificate evidences a beneficial ownership interest has been registered as
an investment company under the Investment Company Act, and no transfer of an
Owner Trust Certificate may be made (i) to any Person other than a QIB or an
Affiliate of the Depositor or (ii) to any Person that would require the Issuer
or any such trust fund to be registered as an investment company under the
Investment Company Act. If such transfer is to be made to any Person who is
not an Affiliate of the Depositor, then the Certificate Registrar shall refuse
to register such transfer unless it receives (and upon receipt, may
conclusively rely upon) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit B-1 to the
Trust Agreement and a certificate from such Certificateholder's prospective
transferee substantially in the form attached as Exhibit B-2 to the Trust
Agreement. None of the Trust, the Depositor, the Owner Trustee or the
Certificate Registrar is obligated to register or qualify this Owner Trust
Certificate under the Securities Act or any other securities laws or to take
any action not otherwise required under the Trust Agreement to permit the
transfer of this Owner Trust Certificate or interest herein without
registration or qualification. Any Certificateholder desiring to effect a
transfer of this Owner Trust Certificate or an interest herein shall, and does
hereby agree to, indemnify the Issuer, the Depositor, the Administrator, the
Owner Trustee, the Indenture Trustee and the Certificate Registrar against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of this Owner Trust Certificate or any interest herein
shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx
plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, including, without limitation,
insurance company general accounts, that is subject to ERISA or the Code
(each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing this Owner Trust Certificate or interest herein on behalf of, or
with assets of, a Plan.
Prior to transfer of this Owner Trust Certificate in accordance with
the foregoing and the Trust Agreement, the Owner Trustee, the Indenture
Trustee and the Certificate Registrar and any agent of any of them may treat
the Person in whose name this Owner Trust Certificate is registered as the
owner hereof for the purpose of receiving distributions pursuant to the Trust
Agreement, pursuant to the Indenture and for all other purposes whatsoever,
and neither the Owner Trustee, the Indenture Trustee, the Certificate
Registrar nor any agent of any of them shall be affected by notice to the
contrary.
As provided in the Trust Agreement and subject to certain limitations
herein and therein set forth, this Owner Trust Certificate is exchangeable for
other Owner Trust Certificates in authorized denominations representing a like
aggregate Percentage Interest, as requested by the Certificateholder
surrendering the same.
No service charge will be made to a Certificateholder for any such
registration of transfer or exchange, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge or reasonable expenses payable in connection therewith.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment of the Trust Agreement and the modification of the
rights of the Certificateholders at any time by the Owner Trustee with the
consent of Certificateholders owning a majority of the Percentage Interests
(except as provided in the Trust Agreement). Any consent by the
Certificateholder of this Owner Trust Certificate shall be conclusive and
binding on such Certificateholder and upon all future Certificateholders
issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Owner Trust
Certificate.
The Trust shall not be dissolved or terminated until the Notes have
been paid in full and the Lien on the Trust Estate created by the Indenture
has been released.
Unless the Certificate of Authentication on this Owner Trust
Certificate has been executed by or on behalf of the Certificate Registrar, by
manual signature, this Owner Trust Certificate shall not be entitled to any
benefit under the Trust Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Owner Trustee has caused this Owner Trust
Certificate to be duly executed.
INDYMAC TRUST SPMD [ ]
By: [WILMINGTON TRUST COMPANY],
not in its individual capacity
but solely as Owner Trustee
By:
-------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Owner Trust Certificates referred to in
the within-referenced Trust Agreement.
Dated:
----------
[WILMINGTON TRUST COMPANY],
not in its individual capacity
but solely as Certificate Registrar
By:
-------------------------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
-------------------------------------------------------------------------------
[Please print or typewrite name(s) and address(es), including postal zip code
of assignee(s)] ("Assignee(s)") that portion of the interest in the Trust
represented by the within Owner Trust Certificate set forth below and hereby
authorize(s) the transfer and registration of transfer of such interest to
Assignee(s) on the Certificate Register of the Trust.
I (we) further direct the Certificate Registrar to issue a new Owner Trust
Certificate for that portion of the interest in the Trust represented by the
within Owner Trust Certificate set forth below
to the above-named Assignee(s) and deliver such Owner Trust Certificate to the
following address: ; to issue a new Owner Trust Certificate for the remainder
of the interest in the Trust represented by the within Owner Trust Certificate
to the Assignor(s) and deliver such Owner Trust Certificate to the following
address:
; and to cancel the within Owner Trust Certificate.
Date:
------------------- ----------------------------------------------
Signature by or on behalf of Assignor(s)
Percentage Interest
Transferred:
--------- ----------------------------------------------
Taxpayer Identification Number
EXHIBIT B-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF THE OWNER TRUST CERTIFICATES
[Date]
[Wilmington Trust Company]
[Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000]
Attention: [Corporate Trust Administration]
Re: IndyMac Trust SPMD [ ], Owner Trust Certificates
(the "Owner Trust Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale
by _____________ (the "Transferor") to ______________________ (the
"Transferee") of the Owner Trust Certificates representing a ____% Percentage
Interest (the "Transferred Owner Trust Certificates"). The Owner Trust
Certificates, including the Transferred Owner Trust Certificates, were issued
pursuant to the Deposit Trust Agreement, dated as of [ ] (the "Agreement"),
among [IndyMac Bank, F.S.B.], as depositor (the "Depositor") and [Wilmington
Trust Company], as owner trustee (the "Owner Trustee"). All capitalized terms
used but not otherwise defined herein shall have the respective meanings set
forth in the Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the
Depositor, the Owner Trustee and the Transferee, that:
1. The Transferor is the lawful owner of the Transferred Owner
Trust Certificates with the full right to transfer such Owner Trust
Certificates free from any and all claims and encumbrances
whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Owner Trust Certificate, any interest in any Owner Trust Certificate
or any other similar security to any person in any manner, (b)
solicited any offer to buy or accept a transfer, pledge or other
disposition of any Owner Trust Certificate, any interest in any Owner
Trust Certificate or any other similar security from any person in
any manner, (c) otherwise approached or negotiated with respect to
any Owner Trust Certificate, any interest in any Owner Trust
Certificate or any other similar security with any person in any
manner, (d) made any general solicitation by means of general
advertising or in any other manner, or (e) taken any other action,
which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a distribution of any Owner
Trust Certificate under the Securities Act of 1933, as amended (the
"Securities Act"), or would render the disposition of any Owner Trust
Certificate a violation of Section 5 of the Securities Act or any
state securities laws, or would require registration or qualification
of any Owner Trust Certificate pursuant to the Securities Act or any
state securities laws.
3. The Transferor and any person acting on behalf of the
Transferor in this matter reasonably believe that the Transferee is a
"qualified institutional buyer" as that term is defined in Rule 144A
("Rule 144A") under the Securities Act (a "Qualified Institutional
Buyer") purchasing for its own account or for the account of a
Qualified Institutional Buyer. In determining whether the Transferee
is a Qualified Institutional Buyer, the Transferor and any person
acting on behalf of the Transferor in this matter have relied upon
the following method(s) of establishing the Transferee's ownership
and discretionary investments of securities (check one or more):
____ (a) The Transferee's most recent publicly available
financial statements, which statements present the
information as of a date within 16 months preceding
the date of sale of the Transferred Owner Trust
Certificate in the case of a U.S. purchaser and
within 18 months preceding such date of sale for a
foreign purchaser; or
____ (b) The most recent publicly available information
appearing in documents filed by the Transferee with
the Securities and Exchange Commission or another
United States federal, state, or local governmental
agency or self-regulatory organization, or with a
foreign governmental agency or self-regulatory
organization, which information is as of a date
within 16 months preceding the date of sale of the
Transferred Owner Trust Certificate in the case of
a U.S. purchaser and within 18 months preceding
such date of sale for a foreign purchaser; or
____ (c) The most recent publicly available information
appearing in a recognized securities manual, which
information is as of a date within 16 months
preceding the date of sale of the Transferred Owner
Trust Certificate in the case of a U.S. purchaser
and within 18 months preceding such date of sale
for a foreign purchaser; or
____ (d) A certification by the chief financial officer,
a person fulfilling an equivalent function, or
other executive officer of the Transferee,
specifying the amount of securities owned and
invested on a discretionary basis by the Transferee
as of a specific date on or since the close of the
Transferee's most recent fiscal year, or, in the
case of a Transferee that is a member of a "family
of investment companies", as that term is defined
in Rule 144A, a certification by an executive
officer of the investment adviser specifying the
amount of securities owned by the "family of
investment companies" as of a specific date on or
since the close of the Transferee's most recent
fiscal year.
4. The Transferor and any person acting on behalf of the
Transferor understand that in determining the aggregate amount of
securities owned and invested on a discretionary basis by an entity
for purposes of establishing whether such entity is a Qualified
Institutional Buyer:
(a) the following instruments and interests shall
be excluded: securities of issuers that are
affiliated with the Transferee; securities that are
part of an unsold allotment to or subscription by
the Transferee, if the Transferee is a dealer;
securities of issuers that are part of the
Transferee's "family of investment companies", if
the Transferee is a registered investment company;
bank deposit notes and certificates of deposit;
loan participations; repurchase agreements;
securities owned but subject to a repurchase
agreement; and currency, interest rate and
commodity swaps;
(b) the aggregate value of the securities shall be
the cost of such securities, except where the
entity reports its securities holdings in its
financial statements on the basis of their market
value, and no current information with respect to
the cost of those securities has been published, in
which case the securities may be valued at market;
(c) securities owned by subsidiaries of the entity
that are consolidated with the entity in its
financial statements prepared in accordance with
generally accepted accounting principles may be
included if the investments of such subsidiaries
are managed under the direction of the entity,
except that, unless the entity is a reporting
company under Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, securities owned
by such subsidiaries may not be included if the
entity itself is a majority-owned subsidiary that
would be included in the consolidated financial
statements of another enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the
Transferor is relying on the exemption from the provisions of Section
5 of the Securities Act provided by Rule 144A.
6. The Transferor or a person acting on its behalf has
furnished, or caused to be furnished, to the Transferee all
information regarding (a) the Transferred Owner Trust Certificates
and payments thereon, (b) the Notes and payments thereon, (c) the
nature and performance of the Underlying Certificate and the Mortgage
Loans and (d) the Indenture, the Agreement and the Trust Estate, that
the Transferee has requested.
Very truly yours,
(Transferor)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXHIBIT B-2
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF THE OWNER TRUST CERTIFICATES
[Date]
[Wilmington Trust Company]
[Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000]
Attention: [Corporate Trust Administration]
Re: IndyMac Trust SPMD [ ], Owner Trust Certificates
(the "Owner Trust Certificates")
Ladies and Gentlemen:
_______________________ (the "Transferee") intends to
purchase from ______________________ (the "Transferor") the Owner Trust
Certificates representing a ___% Percentage Interest (the "Transferred Owner
Trust Certificates"). The Owner Trust Certificates, including the Transferred
Owner Trust Certificates, were issued pursuant to the Deposit Trust Agreement,
dated as of [ ] (the "Agreement"), among [IndyMac Bank, F.S.B.], as depositor
(the "Depositor") and [Wilmington Trust Company], as owner trustee (the "Owner
Trustee"). All capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Agreement. The Transferee hereby certifies,
represents and warrants to you, as Certificate Registrar, and for the benefit
of the Depositor, the Owner Trustee and the Transferor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act"), and has
completed one of the forms of certification to that effect attached hereto as
Annex 1 and Annex 2. The Transferee is aware that the sale to it of the
Transferred Owner Trust Certificates is being made in reliance on Rule 144A.
The Transferee is acquiring the Transferred Owner Trust Certificates for its
own account or for the account of a Qualified Institutional Buyer, and
understands that such Transferred Owner Trust Certificates may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
Qualified Institutional Buyer that purchases for its own account or for the
account of a Qualified Institutional Buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Transferred Owner Trust Certificates and payments thereon, (b) the
nature and performance of the Underlying Certificate and the Mortgage Loans,
(c) the Indenture, (d) the Agreement and (e) any credit enhancement mechanism
associated with the Transferred Owner Trust Certificates, that it has
requested.
3. The Transferee represents that it is not any employee benefit plan
(a "Plan") subject to the Employee Retirement Income Security Act of 1974, as
amended, or the Internal Revenue Code of 1986, as amended, or a Person acting,
directly or indirectly, on behalf of, or with the assets of, a Plan.
4. The Transferee agrees to be bound by the terms of the Agreement.
Very truly yours,
(Transferee)
By:
-------------------------
Name:
-----------------------
Title:
----------------------
ANNEX 1 TO EXHIBIT B-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the Owner Trust Certificates being transferred (the
"Transferred Owner Trust Certificates") as described in the Transferee
Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Owner Trust Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $________________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and
(ii) the Transferee satisfies the criteria in the category marked below.
____ Corporation, etc. The Transferee is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by
the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy of which is attached hereto, as of a date not more than
16 months preceding the date of sale of the Owner Trust
Certificates in the case of a U.S. bank, and not more than
18 months preceding such date of sale for a foreign bank or
equivalent institution.
____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority
having supervision over any such institutions or is a
foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date
not more than 16 months preceding the date of sale of the
Owner Trust Certificates in the case of a U.S. savings and
loan association, and not more than 18 months preceding such
date of sale for a foreign savings and loan association or
equivalent institution.
____ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of 1934,
as amended.
____ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks underwritten
by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or
agency of a State, U.S. territory or the District of
Columbia.
____ State or Local Plan. The Transferee is a plan established
and maintained by a State, its political subdivisions, or
any agency or instrumentality of the State or its
political subdivisions, for the benefit of its employees.
____ ERISA Plan. The Transferee is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974, as amended.
____ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act of
1940, as amended.
____ Other. (Please supply a brief description of the entity and
a cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it
qualifies. Note that registered investment companies should
complete Annex 2 rather than this Annex 1.)_________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee,
the Transferee did not include any of the securities referred to in this
paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities were
valued at market. Further, in determining such aggregate amount, the
Transferee may have included securities owned by subsidiaries of the
Transferee, but only if such subsidiaries are consolidated with the Transferee
in its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Transferee's direction. However, such securities were not included
if the Transferee is a majority-owned, consolidated subsidiary of another
enterprise and the Transferee is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Owner Trust Certificates are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be in
reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred Owner Trust
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Owner Trust Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Transferee
is a bank or savings and loan as provided above, the Transferee agrees that it
will furnish to such parties any updated annual financial statements that
become available on or before the date of such purchase, promptly after they
become available.
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Print Name of Transferee
By:
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Name:
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Title:
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Date:
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ANNEX 2 TO EXHIBIT B-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the Owner Trust Certificates being transferred (the
"Transferred Owner Trust Certificates") as described in the Transferee
Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act of 1933, as amended
("Rule 144A"), because the Transferee is part of a `Family of Investment
Companies (as defined below), is an executive officer of the investment
adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the
end of the Transferee's most recent fiscal year. For purposes of determining
the amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies,
as the case may be, reports its securities holdings in its financial
statements on the basis of their market value, and no current information with
respect to the cost of those securities has been published, in which case the
securities of such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary
basis $_____________________ in securities (other than the,
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a "Family of Investment
Companies" which owned in the aggregate $________________
in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of
the Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps. For purposes of determining
the aggregate amount of securities owned and/or invested on a discretionary
basis by the Transferee, or owned by the Transferee's Family of Investment
Companies, the securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to
the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Owner Trust Certificates only for the Transferee's
own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred Owner
Trust Certificates will constitute a reaffirmation of this certification by
the undersigned as of the date of such purchase.
Print Name of Transferee or Adviser
By:
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Name:
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Title:
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IF AN ADVISER:
Print Name of Transferee
Date:
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EXHIBIT C
[FORM OF CERTIFICATE OF TRUST]
CERTIFICATE OF TRUST OF
INDYMAC TRUST SPMD [ ]
This Certificate of Trust of IndyMac Trust SPMD [ ] (the "Trust") is
being duly executed and filed by [Wilmington Trust Company], a Delaware
banking corporation, as trustee, to form a business trust under the Delaware
Business Trust Act (12 Del. Code, ss. 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is IndyMac
Trust SPMD [ ].
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is [Wilmington Trust Company], [Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000],
Attention: [Corporate Trust Administration.]
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
[WILMINGTON TRUST
COMPANY], not in its
individual capacity but
solely as Owner Trustee
of the Trust.
By:
------------------------------------------
Name:
Title:
