Exhibit 99.1
6
EXECUTION COPY
CWMBS, INC.,
Depositor
BEAR, XXXXXXX & CO. INC.,
Underlying Certificate Seller
and
THE BANK OF NEW YORK,
Trustee, Securities Intermediary and Bank
-------------------------------
TRUST AGREEMENT
Dated as of November 26, 2004
-------------------------------
CWMBS, Inc.
Resecuritization Pass-Through Trust 2004-28R
Resecuritization Pass-Through Certificates, Series 2004-28R
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms..........................................................................5
ARTICLE II
CONVEYANCE OF THE DEPOSITED UNDERLYING CERTIFICATES; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of the Deposited Underlying Certificates...................................18
Section 2.02 Acceptance by Trustee.................................................................19
Section 2.03 Representations and Warranties of the Underlying Certificate Seller...................19
Section 2.04 Representations and Warranties of the Depositor.......................................21
Section 2.05 Issuance of Certificates..............................................................22
Section 2.06 REMIC Matters.........................................................................22
Section 2.07 Presentation for Transfer.............................................................23
ARTICLE III
ADMINISTRATION OF THE TRUST FUND; PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01 Defaults by the Underlying Trust......................................................24
Section 3.02 Distribution Account and Securities Account...........................................24
Section 3.03 Permitted Withdrawals From the Distribution Account...................................25
Section 3.04 Distributions.........................................................................26
Section 3.05 Reserved..............................................................................27
Section 3.06 Allocation of Realized Losses.........................................................27
Section 3.07 Determination of Pass-Through Rates for LIBOR Certificates............................27
Section 3.08 Statements to Certificateholders......................................................29
Section 3.09 Reports of the Trustee; Distribution Account..........................................30
Section 3.10 Access to Certain Documentation and Information.......................................30
ARTICLE IV
THE CERTIFICATES
Section 4.01 The Certificates......................................................................31
Section 4.02 Certificate Register; Registration of Transfer and Exchange of Certificates...........31
Section 4.03 Mutilated, Destroyed, Lost or Stolen Certificates.....................................35
Section 4.04 Persons Deemed Owners.................................................................36
Section 4.05 Access to List of Certificateholders' Names and Addresses.............................36
Section 4.06 Maintenance of Office or Agency.......................................................36
ARTICLE V
CONCERNING THE TRUSTEE
Section 5.01 Duties of Trustee.....................................................................37
Section 5.02 Certain Matters Affecting the Trustee.................................................37
Section 5.03 Trustee Not Liable for Certificates or Deposited Underlying Certificates..............39
Section 5.04 Trustee May Own Certificates..........................................................39
Section 5.05 Trustee's Fees and Expenses...........................................................39
Section 5.06 Indemnification of the Trustee........................................................39
Section 5.07 Eligibility Requirements for Trustee..................................................39
Section 5.08 Resignation and Removal of Trustee....................................................40
Section 5.09 Successor Trustee.....................................................................41
Section 5.10 Merger or Consolidation of Trustee....................................................41
Section 5.11 Appointment of Co-Trustee or Separate Trustee.........................................41
Section 5.12 Tax Matters...........................................................................42
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liability of the Depositor............................................................45
Section 6.02 Merger, Consolidation or Conversion of the Depositor..................................45
Section 6.03 Limitation on Liability of the Depositor and Others...................................45
ARTICLE VII
TERMINATION
Section 7.01 Termination...........................................................................46
Section 7.02 Final Distribution on the Certificates................................................46
Section 7.03 Additional Termination Requirements...................................................47
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01 Amendment.............................................................................49
Section 8.02 Action Under and Conflicts With the Underlying Agreement..............................50
Section 8.03 Recordation of Agreement..............................................................51
Section 8.04 Certain REMIC Matters.................................................................51
Section 8.05 Limitation on Rights of Certificateholders............................................51
Section 8.06 Governing Law.........................................................................52
Section 8.07 Notices...............................................................................52
Section 8.08 Severability of Provisions............................................................52
Section 8.09 Successors and Assigns................................................................53
Section 8.10 Article and Section Headings..........................................................53
Section 8.11 Certificates Nonassessable and Fully Paid.............................................53
Section 8.12 Protection of Assets..................................................................53
Schedule I List of Deposited Underlying Certificates and Underlying
Agreements
Schedule II Planned Balance Schedule
Exhibit A - Form of Class A Certificate ....................................A-1
Exhibit B - [Reserved]......................................................B-1
Exhibit C - Form of Residual Certificate....................................C-1
Exhibit D - Form of Reverse of Certificate..................................D-1
Exhibit E - Form of Transferor Affidavit....................................E-1
Exhibit F - Form of Transfer Affidavit for the Class A-R Certificate........F-1
TRUST AGREEMENT, dated as of November 26, 2004, by and among CWMBS, Inc.,
as depositor (the "Depositor"), Bear, Xxxxxxx & Co. Inc., as underlying
certificate seller (the "Underlying Certificate Seller"), and The Bank of New
York, as trustee (the "Trustee") and in its capacities as Securities
Intermediary and as Bank (each as defined below).
W I T N E S S E T H:
WHEREAS, the Depositor, the Underlying Certificate Seller and the Trustee
desire to enter into a trust agreement dated as of the date hereof (the "Trust
Agreement"); and
WHEREAS, the Underlying Certificate Seller has transferred its interests
in and to the Deposited Underlying Certificates (as defined herein) to the
Depositor pursuant to a xxxx of sale executed by the Underlying Certificate
Seller in favor of the Depositor;
NOW THEREFORE, in consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. As provided herein, the Trustee
will elect that the Trust Fund be treated for federal income tax purposes as a
real estate mortgage investment conduit (the "Master REMIC"). The Certificates
will represent the entire beneficial ownership interest in the Master REMIC.
The Classes of Certificates that are designated as the Regular Certificates
will constitute Regular Interests in the Master REMIC. The Class A-R
Certificates will represent the sole Class of Residual Interests in the Master
REMIC. The "latest possible maturity date", for federal income tax purposes, of
all Regular Interests created hereby will be the Latest Possible Maturity Date.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess
thereof in which such Classes shall be issuable (except that one Certificate of
each Class of Certificates may be issued in a different amount and, in
addition, one Residual Certificate representing the Tax Matters Person
Certificate may be issued in a different amount):
Integral
Initial Class Pass-Through Multiples
Class Certificate Rate Minimum in Excess of
Designation Balance (per annum) Denomination Minimum
Class A-1 $261,435,000.00 5.50% $1,000.00 $1,000.00
Class A-2 $13,924,335.00 5.50% $1,000.00 $1,000.00
Class A-3 $9,250,000.00 5.50% $1,000.00 $1,000.00
Class A-4 $4,750,000.00 5.50% $1,000.00 $1,000.00
Class A-5 $32,151,000.00 5.50% $25,000.00 $1,000.00
Class A-R (1) $100.00 5.50% (2) (2)
1. The Class A-R Certificate evidences the sole Class of residual
interest in the Master REMIC.
2. The Class A-R Certificate shall be issued as two separate
certificates, one with an initial Certificate Balance of $99.99 and
the Tax Matters Person Certificate with an initial Certificate
Balance of $0.01.
2
Set forth below are designations of Classes of Certificates to the categories
used herein:
Accretion Directed
Certificates........................ None.
Accrual Certificates................ None.
Accrual Components.................. None.
Book-Entry Certificates............. All Classes of Certificates other
than the Physical Certificates.
Component Certificates.............. None.
Components.......................... For purposes of calculating
distributions, the Component
Certificates will be comprised of
multiple payment components having
the designations, Initial Component
Balances and Pass-Through Rates set
forth below:
Initial
Component Pass-Through
Designation Balance Rate
----------- ------- ----
N/A N/A N/A
Delay Certificates.................. All interest-bearing Classes of
Certificates other than the
Non-Delay Certificates, if any.
ERISA-Restricted
Certificates........................ Residual Certificates; and any
Certificate of a Class that ceases
to satisfy the applicable rating
requirement under the Underwriter's
Exemption.
Floating Rate Certificates.......... None.
Inverse Floating Rate
Certificates........................ None.
COFI Certificates................... None.
LIBOR Certificates.................. Floating Rate and Inverse Floating
Rate Certificates.
Non-Delay Certificates.............. LIBOR Certificates.
Notional Amount
3
Certificates........................ None.
Notional Amount Components.......... None.
Offered Certificates................ All Classes of Certificates.
Physical Certificates............... Residual Certificates.
Planned Principal Classes........... None.
Planned Principal Components........ None.
Principal Only Certificates ........ None.
Rating Agencies..................... Xxxxx'x and Fitch.
Regular Certificates................ All Classes of Certificates other
than the Residual Certificates.
Residual Certificates............... Class A-R Certificate.
Scheduled Principal
Classes............................. None.
Senior Certificates................. Class X-0, Xxxxx X-0, Class A-3,
Class A-4, Class A-5 and Class A-R
Certificates.
Subordinated Certificates........... None.
Targeted Principal Classes ......... None.
Targeted Principal
Components.......................... None.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
It is not intended that the Class A-R Certificates be entitled to any cash
flow pursuant to this Agreement except as provided in Section 3.04(a)(ii) and
(b)(i) hereunder, (that is, its entitlement to $100 plus interest thereon in
the waterfall).
4
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Aggregate Planned Balance: With respect to any group of Planned Principal
Classes or Components and any Distribution Date, the amount set forth for such
group for such Distribution Date in Schedule II hereto.
Aggregate Targeted Balance: With respect to any group of Targeted
Principal Classes or Components and any Distribution Date, the amount set forth
for such group for such Distribution Date in Schedule II hereto.
Agreement: This Trust Agreement and all amendments hereof and supplements
hereto.
Allocated Underlying Net Interest Shortfalls: As to any Distribution Date,
the Underlying Net Interest Shortfalls allocated to the Deposited Underlying
Certificates in accordance with the Underlying Agreement in connection with
distributions thereon for such Distribution Date.
Allocated Underlying Net Prepayment Interest Shortfalls: As to any
Distribution Date, the Underlying Net Prepayment Interest Shortfalls allocated
to the Deposited Underlying Certificates in accordance with the Underlying
Agreement in connection with distributions thereon for such Distribution Date.
Allocated Underlying Realized Losses: As to any Distribution Date, the
Underlying Realized Losses (including Underlying Excess Losses) allocated to
the Deposited Underlying Certificates in accordance with the Underlying
Agreement in connection with distributions thereon for such Distribution Date.
Available Interest Funds: As to any Distribution Date, the aggregate of
all previously undistributed amounts received by the Trustee on or prior to
such Distribution Date as distributions of interest on the Deposited Underlying
Certificates.
Available Principal Funds: As to any Distribution Date, the aggregate of
all previously undistributed amounts received by the Trustee on or prior to
such Distribution Date as distributions of principal on the Deposited
Underlying Certificates, reduced by the sum of expenses and liabilities
reimbursable to the Depositor pursuant to Section 6.03 hereof and any taxes
imposed on the Trust Fund to be paid from amounts otherwise distributable to
Certificateholders pursuant to Section 5.12 hereof (in each case, that have not
been previously paid by a reduction of Available Principal Funds).
Bank: As defined in Section 3.02.
BNY: The Bank of New York, a New York Banking corporation, or its
successor in interest.
5
Book-Entry Certificate: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day
on which banking institutions in the City of New York, New York, or the State
of California or the city in which the Corporate Trust Office of the Trustee is
located are authorized or obligated by law or executive order to be closed.
Certificate: Any one of the Certificates executed by the Trustee
substantially in the forms attached hereto as exhibits.
Certificate Balance: With respect to any Certificate at any date, the
maximum dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the Denomination thereof (A) plus any
Underlying Subsequent Recoveries added to the Certificate Balance of such
Certificate pursuant to Section 3.04, and (B) minus the sum of (i) all
distributions of principal previously made with respect thereto and (ii) all
Underlying Realized Losses allocated thereto and, all other reductions in
Certificate Balance (including the pro rata portion of certain expenses and
liabilities reimbursable to the Depositor pursuant to Section 3.03(b) and any
taxes imposed on the Trust Fund paid pursuant to Section 3.03(c)) previously
allocated thereto pursuant to Section 3.06.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided,
however, that if any such Person (including the Depositor) owns 100% of the
Percentage Interests evidenced by a Class of Certificates, such Certificates
shall be deemed to be Outstanding for purposes of any provision hereof that
requires the consent of the Holders of Certificates of a particular Class as a
condition to the taking of any action hereunder. The Trustee is entitled to
rely conclusively on a certification of the Depositor or any affiliate of the
Depositor in determining which Certificates are registered in the name of an
affiliate of the Depositor.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate. For the purposes of
this Agreement, in order for a Certificate Owner to enforce any rights
hereunder, it shall first have to provide evidence of its beneficial ownership
in a Certificate that is reasonably satisfactory to the Trustee or the
Depositor, as applicable.
Certificate Register: The register maintained pursuant to Section 4.02(a).
Class: All Certificates bearing the same Class designation as set forth in
the Preliminary Statement.
Class A-R Certificate: Collectively, the single Certificate and the Tax
Matters Person Certificate, in each case executed and countersigned by the
Trustee.
6
Class Certificate Balance: With respect to any Class and as to any date of
determination, the aggregate of the Certificate Balances of all Certificates of
such Class as of such date.
Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest bearing Class or, with respect to any interest
bearing component, the sum of (i) one month's interest accrued during the
related Interest Accrual Period at the Pass-Through Rate for such Class on the
related Class Certificate Balance, Component Balance, Notional Amount, or
Component Notional Amount, as applicable, immediately prior to such
Distribution Date, subject to reduction as provided in 3.04(e) and (ii) any
Class Unpaid Interest Amounts for such Class or Component.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest bearing Certificates, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount
distributed on such Class on prior Distribution Dates pursuant to clause (ii)
of the definition of Class Optimal Interest Distribution Amount.
Closing Date: November 30, 2004.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Component Balance: With respect to any Component and any Distribution
Date, the Initial Component Balance thereof on the Closing Date, (A) plus any
Underlying Subsequent Recoveries added to the Component Balance of such
Component pursuant to Section 3.04, (B) minus the sum of all amounts applied in
reduction of the principal balance of such Component and Realized Losses
allocated thereto on previous Distribution Dates.
Component Certificates: As specified in the Preliminary Statement.
Component Notional Amount: Not applicable.
Corporate Trust Office: The designated office of the Trustee in the State
of New York at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of
the execution of this Agreement is located at 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx,
Xxx Xxxx 00000 (Attn: Resecuritization Group, CWMBS, Inc. Series 2004-28R,
facsimile no. (000) 000-0000/9), and which is the address to which notices to
and correspondence with the Trustee should be directed.
Corresponding Classes of Certificates: Not applicable.
Delivery: When used with respect to any Distribution Account Property or
Securities Account Property means delivery of such Distribution Account
Property or Securities Account
7
Property, as applicable, as follows (terms used in the following provisions
that are not otherwise defined are used as defined in Article 8 of the UCC):
(1) in the case of each certificated security (other than a clearing
corporation security (as defined below)) or instrument, by:
(A) the delivery of such certificated security or instrument to the
Securities Intermediary registered in the name of the Securities
Intermediary or its affiliated nominee or endorsed to the Securities
Intermediary or in blank,
(B) the Securities Intermediary continuously indicating by book-entry
that such certificated security or instrument is credited to the
Securities Account, and
(C) the Securities Intermediary maintaining continuous possession of
such certificated security or instrument in the State of New York;
(2) in the case of each uncertificated security (other than a clearing
corporation security), by causing:
(A) such uncertificated security to be continuously registered on the
books of the issuer thereof to the Securities Intermediary, and
(B) the Securities Intermediary continuously indicating by book-entry
that such uncertificated security is credited to the Securities Account;
(3) in the case of each security in the custody of or maintained on
the books of a clearing corporation or its nominee (a "clearing corporation
security"), by causing:
(A) the relevant clearing corporation to credit such clearing
corporation security to the securities account of the Securities
Intermediary, and
(B) the Securities Intermediary continuously indicating by book-entry
that such clearing corporation security is credited to the Securities
Account;
(4) in the case of each security issued or guaranteed by the United
States of America or agency or instrumentality thereof and that is maintained
in book-entry records of the Federal Reserve Bank of New York ("FRBNY") (each
such security, a "government security"), by causing:
(A) the creation of a security entitlement to such government
security by the credit of such government security to the securities
account of the Securities Intermediary at the FRBNY, and
(B) the Securities Intermediary continuously indicating by book-entry
that such government security is credited to the Securities Account;
(5) in the case of each security entitlement not governed by clauses
(1) through (4) above, by:
8
(A) causing a securities intermediary (x) to indicate by book-entry
that the underlying "financial asset" (as defined in Section 8-102(a)(9)
of the UCC) has been credited to be the Securities Intermediary's
securities account, (y) to receive a financial asset from the Securities
Intermediary or acquiring the underlying financial asset for the
Securities Intermediary, and in either case, accepting it for credit to
the Securities Intermediary's securities account or (z) to be become
obligated under other law, regulation or rule to credit the underlying
financial asset to the Security Intermediary's securities account,
(B) the making by such securities intermediary of entries on its
books and records continuously identifying such security entitlement as
belonging to the Securities Intermediary and continuously indicating by
book-entry that such securities entitlement is credited to the Securities
Intermediary's securities account, and
(C) the Securities Intermediary continuously indicating by book-entry
that such security entitlement (or all rights and property of the
Securities Intermediary representing such securities entitlement) is
credited to the Securities Account; and
(6) in the case of cash or money, by:
(A) the delivery of such cash or money to the Bank, and
(B) the Bank's continuously crediting such cash or money to the
Distribution Account.
Denomination: With respect to each Certificate, the amount set forth on
the face thereof as the "Initial Certificate Balance of this Certificate" or
the "Initial Notional Amount of this Certificate" or, if neither of the
foregoing, the Percentage Interest appearing on the face thereof.
Deposited Underlying Certificates: As set forth on Schedule I hereto.
Depositor: CWMBS, Inc., a Delaware corporation, or its successors in
interest.
Depository: The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates is Cede &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New York and
a "clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Definitive Certificate: Any definitive, fully registered Certificate.
Delay Certificates: As specified in the Preliminary Statement.
9
Distribution Account: The separate Eligible Account created and maintained
by the Trustee pursuant to Section 3.02 in the name of the Trustee for the
benefit of the Certificateholders and designated "The Bank of New York in trust
for registered holders of CWMBS, Inc. Resecuritization Pass-Through Trust
2004-28R, Resecuritization Pass-Through Certificates, Series 2004-28R." Funds
in, and other property credited to, the Distribution Account shall be held in
trust for the Certificateholders for the uses and purposes set forth in this
Agreement.
Distribution Account Property: The Distribution Account, all amounts,
investments and other property held from time to time in the Distribution
Account, and all proceeds of the foregoing.
Distribution Date: The same day as each Underlying Distribution Date.
Eligible Account: Any of (i) a segregated account or accounts maintained
with a federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of Moody's and one of the two highest short-term ratings of
S&P, if S&P is a Rating Agency, at the time any amounts are held on deposit
therein, or (ii) a segregated account or accounts in a depository institution
or trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee and to each Rating Agency, the Certificateholders have a claim with
respect to the funds in such account or a perfected first priority security
interest against any collateral securing such funds that is superior to claims
of any other depositors or creditors of the depository institution or trust
company in which such account is maintained, or (iii) a segregated trust
account or accounts maintained with the trust department of a federal or state
chartered depository institution subject to regulations regarding fiduciary
funds on deposit similar to Title XII of the C.F.R. Section 9.10(b) which in
either case has corporate trust powers acting in its fiduciary capacity, (iv)
any other account acceptable to each Rating Agency. Eligible Accounts may bear
interest, and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated as a
Rating Agency in the Preliminary Statement, the address for notices to
Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Pass-Through Monitoring, or such other address as Fitch
may hereafter furnish to the Depositor.
Initial Class Certificate Balance: With respect to each Class of
Certificates, the Class Certificate Balance of such Class on the Closing Date.
10
Interest Accrual Period: With respect to each Class of Delay Certificates
and any Distribution Date, the calendar month prior to the month of such
Distribution Date. With respect to any Class of Non-Delay Certificates and any
Distribution Date , the one month period commencing on the 25th day of the
month preceding the month in which such Distribution Date occurs and ending on
the 24th day of the month in which such Distribution Date occurs.
Interest Determination Date: With respect to any Interest Accrual Period
for any LIBOR Certificates, the second Business Day prior to the first day of
such Interest Accrual Period.
Interest Rate: Not applicable.
Investment Company Act: The Investment Company Act of 1940, as amended.
Latest Possible Maturity Date: The Distribution Date in August 2033.
LIBOR: The London interbank offered rate for one-month United States
dollar deposits calculated in the manner described in ----- Section 3.07.
LIBOR Certificates: As specified in the Preliminary Statement.
Majority in Interest: As to any Class of Certificates, the Holders of
Certificates of such Class evidencing, in the aggregate, at least 51% of the
Percentage Interests evidenced by all Certificates of such Class.
Master REMIC: As described in the Preliminary Statement.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto. If
Xxxxx'x is designated as a Rating Agency in the Preliminary Statement,
the address for notices to Moody's shall be Xxxxx'x Investors Service, Inc., 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Pass-Through
Monitoring, or such other address as Moody's may hereafter furnish to the
Depositor.
Non-Delay Certificates: As specified in the Preliminary Statement.
Notional Amount: Not applicable.
Notional Amount Certificates: As specified in the Preliminary Statement.
Officers' Certificate: A certificate in the case of the Depositor, signed
by the Chairman of the Board, the Vice Chairman of the Board, the President, a
Managing Director, a Vice President (however denominated), an Assistant Vice
President, the Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant Secretaries of the Depositor.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Depositor, including, in-house counsel, reasonably acceptable to the
Trustee; provided, however, that with respect to the interpretation or
application of the REMIC Provisions, such counsel must (i) in fact be
independent of the Depositor, (ii) not have any direct financial interest in
the Depositor or in any affiliate thereof, and (iii) not be connected with the
Depositor as an officer,
11
employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
Ownership Interest: As to any Residual Certificate, any ownership interest
in such Certificate including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Pass-Through Rate: For any interest bearing Class of Certificates or
Component, the per annum rate set forth or calculated in the manner described
in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Transferee: Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Code Section 521) which is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by
Code Section 511 on unrelated business taxable income) on any excess inclusions
(as defined in Code Section 860E(c)(1)) with respect to any Class A-R
Certificate, (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(c), (v) an "electing partnership" as defined in Code Section
775, (vi) a Person that is not a citizen or resident of the United States, a
corporation, partnership, or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, an estate or
trust whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
fiduciaries have the authority to control all substantial decisions of the
trust unless such Person has furnished the transferor and the Trustee with a
duly completed Internal Revenue Service Form W-8ECI or any applicable successor
form, and (vii) any other Person so designated by the Trustee based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Class A-R
Certificate to such Person may cause the Trust Fund to fail to qualify as a
REMIC at any time that certain Certificates are Outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in Code Section 7701 or successor provisions. A corporation will not be
treated as an instrumentality of the United States or of any State or political
subdivision thereof if
12
all of its activities are subject to tax, and with the exception of the FHLMC,
a majority of its board or directors is not selected by such governmental unit.
Person: Any individual, corporation, partnership, joint venture, limited
liability company, association, joint-stock company, trust, unincorporated
organization or government, or any agency or political subdivision thereof.
Physical Certificate: As specified in the Preliminary Statement.
Planned Balance: With respect to any group of Planned Principal Classes or
Components in the aggregate and any Distribution Date appearing in Schedule II
hereto, the Aggregate Planned Balance for such group and Distribution Date.
With respect to any other Planned Principal Class or Component and any
Distribution Date appearing in Schedule II hereto, the applicable amount
appearing opposite such Distribution Date for such Class or Component.
Planned Principal Classes: As specified in the Preliminary Statement.
Priority Amount: As to any Distribution Date, the amount equal to the
product of (A) the Available Principal Amount, (B) the Shift Percentage and (C)
the Priority Percentage.
Priority Percentage: As to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the Class Certificate
Balance of the Class A-5 Certificates immediately prior to such Distribution
Date, and the denominator of which is the aggregate Class Certificate Balance
of the Certificates immediately prior to such Distribution Date.
Prospectus Supplement: The Prospectus Supplement, dated November 23, 2004,
to the Prospectus dated August 24, 2004, relating to the Offered Certificates.
Purchase Price: As defined in Section 2.03(a) hereof.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, as is designated by the Depositor,
notice of which designation shall be given to the Trustee. References herein to
a given rating category of a Rating Agency shall mean such rating category
without giving effect to any modifiers.
Record Date: With respect to each Distribution Date, the last day of the
calendar month preceding the month in which such Distribution Date occurs.
Reference Bank: As defined in Section 3.07 hereof.
Regular Certificates: As specified in the Preliminary Statement.
Regular Interest: A "regular interest" (as defined in Section 860G(a)(1)
of the Code) in any REMIC described in the Preliminary
Statement.
13
REMIC: A "real estate mortgage investment conduit" within the meaning of
section 860D of the Code.
REMIC Change of Law: Any proposed, temporary or final regulation, revenue
ruling, revenue procedure or other official announcement or interpretation
relating to REMICs and the REMIC Provisions issued after the Closing Date.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from time
to time as well as provisions of applicable state laws.
Residual Certificates: As described in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant
Secretary, any Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also to whom, with respect to a particular matter, such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Rule 3a-7: Rule 3a-7 of the Investment Company Act, as then in effect (or
any successor rule).
Securities Account: As defined in Section 3.02 hereof.
Securities Account Property: The Securities Account, all amounts,
investments and other property held from time to time in the Securities
Account, including the Deposited Underlying Certificates, and all proceeds of
the foregoing.
Securities Intermediary: As defined in Section 3.02(b) hereof.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc. If
S&P is designated as a Rating Agency in the Preliminary Statement, the address
for notices to S&P shall be Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Mortgage Surveillance Monitoring, or such other address
as S&P may hereafter furnish to the Depositor.
Shift Percentage: As to any Distribution Date occurring during the five
years beginning on the first Distribution Date, 0%. For any Distribution Date
occurring on or after the fifth anniversary of the first Distribution Date will
be as follows: for any Distribution Date in the first year thereafter, 30%; for
any Distribution Date in the second year thereafter, 40%; for any Distribution
Date in the third year thereafter, 60%; for any Distribution Date in the fourth
year thereafter, 80%; and for any Distribution Date thereafter, 100%.
SR-A-R Interest: Not applicable.
Startup Day: The Closing Date.
Subsidiary REMIC: Not applicable.
14
Subsidiary REMIC Interest: Not applicable.
Subsidiary REMIC Regular Interest: Not applicable.
Targeted Balance: With respect to any group of Targeted Principal Classes
or Components in the aggregate and any Distribution Date appearing in Schedule
II hereto, the Aggregate Targeted Balance for such group and Distribution Date.
With respect to any other Targeted Principal Class or Component and any
Distribution Date appearing in Schedule II hereto, the applicable amount
appearing opposite such Distribution Date for such Class or Component.
Targeted Principal Classes: As specified in the Preliminary Statement.
Tax Matters Person: The person designated as "tax matters person" in the
manner provided under Treasury regulation ss. 1.860F-4(d)
and temporary Treasury regulation ss. 301.6231(a)(7)1T. Initially, the Tax
Matters Person shall be the Trustee.
Tax Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.01.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: A certificate substantially in the form of Exhibit F
annexed hereto.
Transferor Affidavit: A certificate substantially in the form of Exhibit E
hereto.
Trustee: The Bank of New York and its successors and, if a successor
trustee is appointed hereunder, such successor.
Trust Fund: The corpus of the trust created by this Agreement and
evidenced by the Certificates, consisting of: (A) the Deposited Underlying
Certificates, (B) all distributions thereon due to the holders of the Deposited
Underlying Certificates after November 26, 2004 in respect of the terms
thereof, (C) the Distribution Account and the Securities Account, (D) all
investment property, deposit accounts, accounts, general intangibles, money,
instruments, documents and other property evidencing any and all of the
foregoing, and (E) all proceeds of any and all of the foregoing.
UCC: The Uniform Commercial Code as in effect in the State of New York.
Underlying Agreement: The Pooling and Servicing Agreement, dated as of
June 1, 2003, among CWMBS, Inc., as depositor, Countrywide Home Loans, Inc., as
seller, Countrywide Home Loans Servicing LP, as master servicer, and The Bank
of New York, as trustee, related to CHL Mortgage Pass-Through Trust 2003-29,
Mortgage Pass-Through Certificates, Series 2003-29, as it may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
15
Underlying Certificate Account: Means the "Certificate Account" as defined
in the Underlying Agreement.
Underlying Certificate Seller: Bear, Xxxxxxx & Co. Inc., a Delaware
corporation, or its successors in interest.
Underlying Distribution Date: Means the "Distribution Date" as defined in
the Underlying Agreement.
Underlying Event of Default: Means "Event of Default" as defined in the
Underlying Agreement.
Underlying Excess Losses: Means "Excess Losses" as defined in the
Underlying Agreement.
Underlying Liquidated Mortgage Loan: Means "Liquidated Mortgage Loan" as
defined in the Underlying Agreement.
Underlying Net Interest Shortfalls: Means "Net Interest Shortfalls" as
defined in the Underlying Agreement.
Underlying Net Prepayment Interest Shortfalls: Means "Net Prepayment
Interest Shortfalls" as defined in the Underlying Agreement.
Underlying Realized Losses: Means "Realized Losses" (other than any
Underlying Excess Losses) as defined in the Underlying Agreement.
Underlying Relief Act Reductions: Means any "Relief Act Reductions" as
defined in the Underlying Agreement.
Underlying Senior Credit Support Depletion Date: Means the "Senior Credit
Support Depletion Date" as defined in the Underlying Agreement.
Underlying Subsequent Recoveries: Means "Subsequent Recoveries" as defined
in the Underlying Agreement.
Underlying Trust: Means the "Trust Fund" as defined in the Underlying
Agreement.
Underlying Trustee: Means "Trustee" as defined in the Underlying
Agreement.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41, 67 Fed.
Reg. 54487 (2002), as amended (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of Labor.
Voting Rights: The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. As of any date of determination, (a) 1%
of all Voting Rights shall be allocated to each Class of Notional Amount
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their
16
respective Percentage Interests), and (b) the remaining Voting Rights (or 100%
of the Voting Rights if there is no Class of Notional Amount Certificates)
shall be allocated among Holders of the remaining Classes of Certificates in
proportion to the Certificate Balances of their respective Certificates on such
date.
17
ARTICLE II
CONVEYANCE OF THE DEPOSITED UNDERLYING CERTIFICATES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of the Deposited Underlying Certificates. The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, convey, sell and assign to the Trustee, on behalf of the Holders of
the Certificates, without recourse, all the right, title and interest of the
Depositor in and to the Deposited Underlying Certificates with appropriate
endorsements and other documentation sufficient under the Underlying Agreement
to transfer each such Deposited Underlying Certificate to the Trustee,
including all distributions thereon due after November 26, 2004, and all
proceeds of the foregoing. Each of the Underlying Certificate Seller and the
Depositor severally agrees to transfer to the Trustee (by wire transfer of
immediately available funds), any amounts it receives in respect of the
Deposited Underlying Certificates due thereon after November 26, 2004 on the
same day it receives such funds.
The transfer of the Deposited Underlying Certificates and all other assets
constituting the Trust Fund is absolute and is intended by the parties hereto
as a sale. The Underlying Certificate Seller hereby confirms that it has caused
the beneficial ownership interest in the Deposited Underlying Certificates to
be registered with a Depository Participant or an indirect participant in the
Depository in the name of the Securities Intermediary for the benefit of the
Trustee on behalf of the Certificateholders.
The Securities Intermediary hereby confirms to the Trustee that (i) the
Deposited Underlying Certificates have been confirmed by the Depository to have
been delivered to the Trustee (on behalf of the Certificateholders), subject to
no other interests, and held with the Securities Intermediary, as a Depository
Participant, in book-entry form, and (ii) the Securities Intermediary is
holding such Deposited Underlying Certificate for the account of the Trustee,
on behalf of the Certificateholders. The Trustee hereby acknowledges the
receipt by it and the Securities Intermediary of the Deposited Underlying
Certificates and the other documents and instruments referenced above, in good
faith and without actual notice of any adverse claim, and declares that it
holds and will hold the Deposited Underlying Certificates and the other
documents and instruments, and that it holds and will continuously hold all
other assets in the Trust Fund, in each case, in the State of New York, in
trust for the exclusive use and benefit of all present and future
Certificateholders. The Trustee shall not permit the Deposited Underlying
Certificates or any other asset constituting the Trust Fund to be subjected to
any lien, claim or encumbrance arising by, through or under the Trustee or any
person claiming by, through or under the Trustee. The Depositor agrees to
provide to the Trustee all documents required for the transfer to the Trustee
of the Deposited Underlying Certificates.
It is intended that the conveyance of the Deposited Underlying
Certificates by the Depositor to the Trustee as provided in this Section be,
and be construed as, a sale of the Deposited Underlying Certificates by the
Depositor to the Trustee for the benefit of the Certificateholders. It is,
further, not intended that such conveyance be deemed a pledge of the Deposited
Underlying Certificates by the Depositor to the Trustee to secure a debt or
other obligation of the Depositor. However, in the event that the Deposited
Underlying Certificates
18
are held to be the property of the Depositor, or if for any reason this
Agreement is held or deemed to create a security interest in the Deposited
Underlying Certificates, then it is intended that this Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
UCC and the corresponding articles of the Uniform Commercial Code of any other
applicable jurisdiction; and the Depositor hereby grants to the Trustee for the
benefit of the Certificateholders a security interest in all of the Depositor's
right, title and interest, whether now owned or existing or hereafter acquired
or arising, in and to the Trust Fund. The Depositor and the Trustee, at the
Depositor's direction and expense, shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Deposited Underlying
Certificates and other assets constituting the Trust Fund described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the
term of the Agreement.
Section 2.02 Acceptance by Trustee. The Trustee hereby confirms that it
has confirmation from BNY, in its capacity as Securities Intermediary for the
Trustee that (i) the Deposited Underlying Certificates in book-entry form have
been confirmed by the Depository to have been delivered to the Trustee, subject
to no other interests, and held in the Securities Intermediary in book-entry
form, as a participant in the Depository and (ii) the Securities Intermediary
is holding such Deposited Underlying Certificates in book-entry form for the
account of the Trustee, as owner of the Deposited Underlying Certificates in
its capacity as trustee for the Certificateholders. The Trustee declares that
it shall hold ownership interest in the Deposited Underlying Certificates in
trust and shall hold all proceeds of any of the foregoing and all other rights,
titles or interests of the Trustee in any asset included in the Trust Fund from
time to time in trust, upon the terms herein set forth, for the use and benefit
of all present and future Certificateholders. The Trustee agrees, for the
benefit of Certificateholders, to confirm that the class designation and
original principal balance with respect to the Deposited Underlying
Certificates conform to the information set forth on Schedule I on the Closing
Date.
Section 2.03 Representations and Warranties of the Underlying Certificate
Seller. The Underlying Certificate Seller hereby represents and warrants to the
Depositor and the Trustee
(a) With respect to the Deposited Underlying Certificates as of the
Closing Date as follows:
(i) prior to the transfer of the Deposited Underlying Certificates to
the Depositor, the Underlying Certificate Seller was the sole owner of the
Deposited Underlying Certificates free and clear of any lien, pledge,
charge or encumbrance of any kind;
(ii) the Underlying Certificate Seller has not assigned any interest
in the Deposited Underlying Certificates or any distributions thereon,
except as contemplated herein;
(iii) the crediting of the Deposited Underlying Certificates to the
Securities Account is sufficient to effect the transfer of the Deposited
Underlying Certificates to the Trustee pursuant to Section 2.01 hereof;
and
19
(iv) the Deposited Underlying Certificates constitute a "securities
entitlement" within the meaning of the UCC.
The representations and warranties set forth in this Section 2.03(a) shall
survive the transfer and assignment of the Deposited Underlying Certificates by
the Depositor to the Trustee up to and including the Distribution Date in
January 2005. Upon discovery by the Underlying Certificate Seller, the
Depositor or a Responsible Officer of the Trustee of a breach of any of the
foregoing representations and warranties which materially and adversely affects
the interests of the Certificateholders in the Deposited Underlying
Certificates, the Underlying Certificate Seller, the Depositor or the Trustee
shall give prompt written notice to the other parties and to the
Certificateholders. If such notice is given or received on or prior to the
Distribution Date in January 2005, the Underlying Certificate Seller shall cure
such breach in all material respects or, if such breach cannot be cured, the
Underlying Certificate Seller shall repurchase the Deposited Underlying
Certificates from the Trustee on the Distribution Date immediately following
the date on which the Underlying Certificate Seller is so directed by Holders
of a Majority in Interest of the related Class or Classes of Regular
Certificates. Any such repurchase of the Deposited Underlying Certificates by
the Underlying Certificate Seller shall be accomplished on the Distribution
Date of repurchase, by the payment on the Business Day prior to such
Distribution Date by the Underlying Certificate Seller to the Trustee of an
amount (in immediately available funds) (the "Purchase Price") equal to the
principal balance of the Deposited Underlying Certificates immediately prior to
the Distribution Date of such repurchase plus unpaid interest thereon due on or
prior to the Distribution Date of such repurchase (it being understood that all
distributions made on the Deposited Underlying Certificates up to immediately
prior to the Distribution Date of such repurchase shall be property of the
Trust Fund). The payment of the Purchase Price shall be considered a prepayment
in full of the Deposited Underlying Certificates and shall be delivered to the
Trustee for deposit in the Distribution Account in accordance with the
provisions of Section 3.02 hereof. Upon such deposit into such Distribution
Account, the repurchased Deposited Underlying Certificates shall be released to
the Underlying Certificate Seller, and the Trustee and the Depositor shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be reasonably requested and provided by the
Underlying Certificate Seller to vest in the Underlying Certificate Seller, or
its designee or assignee, title to the Deposited Underlying Certificates
repurchased pursuant hereto. The obligation of the Underlying Certificate
Seller to cure such breach of representations and warranties or effect such
repurchase of the Deposited Underlying Certificates shall constitute the sole
remedy respecting such breach available to Certificateholders or the Trustee on
behalf of Certificateholders.
(b) With respect to the Underlying Certificate Seller:
(i) The Underlying Certificate Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware with full power and authority to execute, deliver and
perform this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Underlying Certificate Seller and constitutes the legal, valid and
binding agreement of the Underlying Certificate Seller, enforceable in
accordance with its terms, except as enforcement hereof may be limited by
bankruptcy, insolvency, reorganization
20
moratorium or other similar laws now or hereafter in effect relating
to or affecting creditors' rights generally or by general principles
of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
(iii) Neither the execution nor the delivery of this Agreement
nor the issuance, delivery and sale of the Certificates, nor the
consummation of any other of the transactions contemplated herein nor
the fulfillment of the terms of this Agreement or the Certificates
will result in the breach of any term or provision of the charter,
by-laws or resolutions of the Underlying Certificate Seller or
conflict with, result in a breach, violation or acceleration of or
constitute a default under, the terms of any material indenture or
other agreement or instrument to which the Underlying Certificate
Seller is a party or by which it is bound, or any statute, order or
regulation applicable to the Underlying Certificate Seller of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over the Underlying Certificate Seller.
(iv) There are no actions or proceedings against, or
investigations of, the Underlying Certificate Seller pending, or, to
the knowledge of the Underlying Certificate Seller, threatened,
before any court, administrative agency or other tribunal (A)
asserting the invalidity of this Agreement or the Certificates, (B)
seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this
Agreement, or (C) which might materially and adversely affect the
validity or enforceability of this Agreement or the Certificates.
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(b) shall survive delivery of the Trust Fund to the
Trustee. Upon discovery by the Underlying Certificate Seller, the Depositor or
a Responsible Officer of the Trustee of a breach of any of the foregoing
representations and warranties which breach materially and adversely affects
the interests of the Certificateholders, the party discovering such breach
shall give prompt written notice to the other parties and to the Rating
Agencies.
Section 2.04 Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee as of the Closing Date
as follows:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with full
power and authority to execute, deliver and perform this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Depositor and constitutes the legal, valid and binding agreement of
the Depositor, enforceable in accordance with its terms, except as
enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally or by general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(iii) Neither the execution nor the delivery of this Agreement nor
the issuance, delivery and sale of the Certificates, nor the consummation
of any other of the
21
transactions contemplated herein nor the fulfillment of the terms of
this Agreement or the Certificates will result in the breach of any
term or provision of the charter or by-laws of the Depositor or
conflict with, result in a breach, violation or acceleration of or
constitute a default under, the terms of any material indenture or
other agreement or instrument to which the Depositor is a party or by
which it is bound, or any statute, order or regulation applicable to
the Depositor of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Depositor.
(iv) There are no actions or proceedings against, or
investigations of, the Depositor pending, or, to the knowledge of the
Depositor, threatened, before any court, administrative agency or
other tribunal (A) asserting the invalidity of this Agreement or the
Certificates, (B) seeking to prevent the issuance of the Certificates
or the consummation of any of the transactions contemplated by this
Agreement, or (C) which might materially and adversely affect the
validity or enforceability of this Agreement or the Certificates.
(v) The Distribution Account constitutes a "deposit account" (as
defined in Section 9-102(a)(29) of the UCC). The Securities Account
constitutes a "securities account" (as defined in Section 8-501(a) of
the UCC). The Deposited Underlying Certificates have been credited to
the Securities Account. The Securities Intermediary has agreed to
treat all assets credited to the Securities Account as "financial
assets" (as defined in Section 8-102(a)(9) of the UCC).
(vi) This Agreement is an agreement pursuant to which the
Securities Intermediary or the Bank, as the case may be, has agreed
to comply with all instructions or directions originated by the
Trustee relating to the Distribution Account and the Securities
Account without further consent by the Depositor.
(vii) Neither the Distribution Account nor the Securities
Account is in the name of any person other than the Trustee.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the Trust Fund to the
Trustee. Upon discovery by the Depositor or a Responsible Officer of the
Trustee of a breach of any of the foregoing representations and warranties
which breach materially and adversely affects the interests of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the other party and to the Rating Agencies.
Section 2.05 Issuance of Certificates. The Trustee acknowledges the
receipt by it of the Deposited Underlying Certificates and concurrently with
such receipt, the Trustee has duly executed, countersigned and delivered, to or
upon the order of the Depositor, the Certificates in authorized denominations
and registered in such names as the Depositor has directed in writing.
Section 2.06 REMIC Matters. The Preliminary Statement sets forth the
designations and "latest possible maturity date" for federal income tax
purposes of all interests created hereby. The "Startup Day" for purposes of the
REMIC Provisions shall be the Closing Date. The "tax
22
matters person" with respect to each REMIC hereunder shall be the Trustee and
the Trustee shall hold the Tax Matters Person Certificate. Each REMIC's fiscal
year shall be the calendar year.
Section 2.07 Presentation for Transfer. On the Closing Date, the
Underlying Certificate Seller, the Depositor and/or the Trustee (as
appropriate) shall present the documents described in Section 2.01 for
registration of transfer of the Deposited Underlying Certificates to the
Trustee, pursuant to the requirements under the Underlying Agreement.
23
ARTICLE III
ADMINISTRATION OF THE TRUST FUND;
PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01 Defaults by the Underlying Trust. In connection with its
receipt of any distribution on the Deposited Underlying Certificates on any
Distribution Date, if (i) the amount of any distribution varies from the amount
due thereon pursuant to the terms of the Underlying Agreement, (ii) the Trustee
shall not have received a distribution by the close of business on such
Distribution Date, or (iii) a Responsible Officer of the Trustee shall gain
actual knowledge of any default under the Underlying Agreement, the Trustee
shall promptly notify the Depositor, the Underlying Certificate Seller and the
Certificateholders, and shall, subject to the provisions of Article V hereof,
pursue such remedies as may be available to it as holder of such Deposited
Underlying Certificates in accordance with the terms of the Underlying
Agreement.
Section 3.02 Distribution Account and Securities Account. (a) The Trustee,
for the benefit of the Certificateholders, shall establish and maintain an
account (the "Distribution Account") at the Bank, which shall be an Eligible
Account, entitled "CWMBS, Inc. Resecuritization Pass-Through Trust 2004-28R."
The Distribution Account shall be maintained as a "deposit account" (as defined
in Section 9-102(a)(29) of the UCC), bearing a designation clearly indicating
that the account and all funds deposited in it are held for the exclusive
benefit of the Certificateholders. All amounts on deposit in the Distribution
Account shall remain uninvested. The Bank of New York ("BNY") hereby confirms
the following with respect to the Distribution Account: (A) the Distribution
Account shall be established and maintained as a "deposit account" (as defined
in Section 9-102(a)(29) of the UCC), (B) BNY is an organization engaged in the
business of banking and is acting in such capacity (in such capacity, the
"Bank") in maintaining the Distribution Account and (C) the Trustee is the
Bank's sole "customer" (within the meaning of Section 9-104 of the UCC) with
respect to the Distribution Account (other than the Securities Account).
Notwithstanding anything to the contrary and for the avoidance of doubt, if at
any time the Bank shall receive any instructions originated by the Trustee
directing the disposition of funds in the Distribution Account, the Bank shall
comply with such instructions without further consent by the Depositor, the
Underlying Certificate Seller or any other Person. Notwithstanding anything to
the contrary, the Bank's "jurisdiction" (within the meaning of Section 9-304 of
the UCC) is the State of New York.
The Distribution Account Property shall be Delivered to the Securities
Intermediary in accordance with the definition of "Delivery."
(b) By the date of this Indenture, the Indenture Trustee shall
establish an account (the "Securities Account") which shall be established and
maintained as a "securities account" as defined in Section 8-501 of the UCC to
which financial assets are or may be credited, (B) BNY shall act in the
capacity of a "securities intermediary" as defined in Section 8-102(a)(14) of
the UCC (in such capacity, the "Securities Intermediary") with respect to the
Securities Account, and (C) the Securities Intermediary shall treat the Trustee
as the sole "entitlement holder" (within the meaning of Section 8-102(a)(7) of
the UCC) of the Securities Account and the sole Person entitled to exercise the
rights that comprise any financial asset credited to the Securities Account.
24
The Securities Account Property, including the Deposited Underlying
Certificates, shall be Delivered to the Securities Intermediary in accordance
with the definition of "Delivery."
(c) Notwithstanding anything to the contrary and for the avoidance of
doubt, if at any time the Securities Intermediary shall receive any
notifications or entitlement orders from the Trustee directing it to transfer
or redeem any financial asset or other property relating to the Securities
Account, the Securities Intermediary shall comply with such notification or
other entitlement order without further consent by the Depositor or any other
Person. Notwithstanding anything to the contrary, the Securities Intermediary's
jurisdiction (as defined in Section 8-110(e) of the UCC) shall be the State of
New York.
(d) The Trustee shall upon receipt deposit in the Distribution Account the
following payments and collections in respect of the Deposited Underlying
Certificates:
(i) all distributions due and received on the Deposited Underlying
Certificates after November 26, 2004; and
(ii) any amount required to be deposited in the Distribution Account
pursuant to Section 2.03(a) hereof in connection with the repurchase of a
Deposited Underlying Certificate by the Underlying Certificate Seller.
(e) Upon a determination by the Trustee that the final distribution shall
be made in respect of a Deposited Underlying Certificate, the Trustee shall
take such steps as may be necessary in connection with the final payment
thereon in accordance with the terms and conditions of the Underlying
Agreement. The Trustee shall promptly deposit in the Distribution Account the
final distribution received upon presentment and surrender of the affected
Deposited Underlying Certificate.
(f) The Depositor shall give notice to the Trustee, the Underlying
Certificate Seller and each Rating Agency of any proposed change of the
location of the Distribution Account or the Securities Account prior to any
change thereof.
(g) If the Bank or the Securities Intermediary has or subsequently obtains
by agreement, operation of law, or otherwise a security interest in the
Distribution Account or the Securities Account, each of the Bank and the
Securities Intermediary hereby agrees that the security interest shall be
subordinate to the security interest of the Trustee for the benefit of the
Certificateholders.
Section 3.03 Permitted Withdrawals From the Distribution Account. The
Trustee may from time to time withdraw funds from the Distribution Account for
the following purposes:
(a) to make payments to Certificateholders in the amounts and in the
manner provided in Section 3.04;
(b) to reimburse the Depositor for expenses incurred by and reimbursable
to the Depositor with respect to each REMIC hereunder pursuant to Section 6.03;
25
(c) to pay any taxes imposed upon each REMIC hereunder, as provided in
Section 5.12; and
(d) to clear and terminate the Distribution Account upon the termination
of the Trust Fund.
Section 3.04 Distributions.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account the Available Interest Funds for such Distribution Date
and apply such funds to the distributions of interest on the Certificates, in
the following order of priority:
(i) concurrently to each Class of Certificates, an amount equal to
the related Class Optimal Interest Distribution Amount, any shortfall
being allocated pro rata among such Classes based on their respective
Class Optimal Interest Distribution Amounts before reductions for such
shortfalls; and
(ii) the amount remaining (if any) to the Holder of the Class A-R
Certificate.
(b) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account the Available Principal Funds for such Distribution Date
and apply such funds to distributions in respect of principal on the
Certificates in the following order of priority:
(i) to the Class A-R Certificates, until its Class Certificate
Balance is reduced to zero;
(ii) to the Class A-5 Certificates, the Priority Amount, until its
Class Certificate Balance is reduced to zero;
(iii) sequentially, to the Class A-1, Class A-2, Class A-3 and Class
A-4 Certificates, in that order, until their respective Class Certificate
Balances are reduced to zero;
(iv) to the Class A-5 Certificates, without regard to the Priority
Amount, until its Class Certificate Balance is reduced to zero; and
(v) the amount remaining (if any) to the Holder of the Class A-R
Certificates.
Notwithstanding the priorities set forth in this Section 3.04(b), on each
Distribution Date on and after the Underlying Senior Credit Support Depletion
Date, Available Principal Funds will be distributed concurrently, as principal
to the Classes and Components of Certificates, pro rata, in accordance with
their respective Class Certificate Balances and Component Balances immediately
before that Distribution Date.
(c) [Reserved].
(d) On each Distribution Date, the amount referred to in clause (i) of the
definition of Class Optimal Interest Distribution Amount for each Class of
Certificates for such Distribution
26
Date shall be reduced by such Class's pro rata share (based on interest then
due and payable to such Class) of Allocated Underlying Net Interest Shortfalls
for such Distribution Date.
(e) If Subsequent Recoveries have been received with respect to an
Underlying Liquidated Mortgage Loan and are applied to increase the Class
Certificate Balance of the Deposited Underlying Certificates, that amount will
be applied pro rata to increase the Class Certificate Balance of each Class of
Certificates to which Realized Losses have been allocated, but in each case by
not more than the amount of Underlying Realized Losses previously allocated to
that Class of Certificates pursuant to Section 3.06. Holders of such
Certificates will not be entitled to any payment in respect of the Class
Optimal Interest Distribution Amount on the amount of such increases for any
Interest Accrual Period preceding the Distribution Date on which such increase
occurs. Any such increases shall be applied pro rata to the Certificate Balance
of each Certificate of such Class.
Section 3.05 Reserved.
Section 3.06 Allocation of Realized Losses.
(a) On or prior to the beginning of the second Business Day prior to each
Distribution Date, the Trustee shall determine the total amount of Allocated
Underlying Realized Losses for such Distribution Date. The Trustee shall make
such determination on the basis of amounts on deposit in the Underlying
Certificate Account (which Underlying Certificate Account it holds as
Underlying Trustee) or on the basis of the agreement referred to in the last
sentence of Section 5.07.
(b) Allocated Underlying Realized Losses with respect to any Distribution
Date shall be allocated to the Certificates, pro rata on the basis of their
respective Class Certificate Balances until the respective Class Certificate
Balance of each such Class is reduced to zero.
(c) Any Allocated Underlying Realized Loss allocated to a Class of
Certificates or any reduction in the Class Certificate Balance of a Class of
Certificates pursuant to Section 3.06(b) above shall be allocated among the
Certificates of such Class in proportion to their respective Certificate
Balances.
(d) Any allocation of Allocated Underlying Realized Losses to a
Certificate or any reduction in the Certificate Balance of a Certificate,
pursuant to Section 3.06(a) above shall be accomplished by reducing the
Certificate Balance thereof immediately following the distributions made on the
related Distribution Date in accordance with the definition of "Certificate
Balance."
Section 3.07 Determination of Pass-Through Rates for LIBOR Certificates.
(a) On each Interest Determination Date so long as any LIBOR Certificates
are outstanding, the Trustee will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. dollars as found on Telerate page 3750 as of 11:00 a.m. London time on
each LIBOR Determination Date. "Telerate Page 3750" means the display page
currently so designated on the Moneyline Telerate Service
27
(formerly the Dow Xxxxx Markets) (or such other page as may replace that page
on that service for the purpose of displaying comparable rates or prices).
(b) If on any Interest Determination Date, LIBOR cannot be determined as
provided in paragraph (A) of this Section 4.08, the Trustee shall either (i)
request each Reference Bank to inform the Trustee of the quotation offered by
its principal London office for making one-month United States dollar deposits
in leading banks in the London interbank market, as of 11:00 a.m. (London time)
on such Interest Determination Date or (ii) in lieu of making any such request,
rely on such Reference Bank quotations that appear at such time on the Reuters
Screen LIBO Page (as defined in the International Swap Dealers Association Inc.
Code of Standard Wording, Assumptions and Provisions for Swaps, 1986 Edition),
to the extent available. LIBOR for the next Interest Accrual Period will be
established by the Trustee on each interest Determination Date as follows:
(i) If on any Interest Determination Date two or more Reference Banks
provide such offered quotations, LIBOR for the next applicable Interest
Accrual Period shall be the arithmetic mean of such offered quotations
(rounding such arithmetic mean upwards if necessary to the nearest whole
multiple of 1/32%).
(ii) If on any Interest Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period shall be whichever is the higher of (i) LIBOR as
determined on the previous Interest Determination Date or (ii) the Reserve
Interest Rate. The "Reserve Interest Rate" shall be the rate per annum
which the Trustee determines to be either (i) the arithmetic mean (rounded
upwards if necessary to the nearest whole multiple of 1/32%) of the
one-month United States dollar lending rates that New York City banks
selected by the Trustee are quoting, on the relevant Interest
Determination Date, to the principal London offices of at least two of the
Reference Banks to which such quotations are, in the opinion of the
Trustee, being so made, or (ii) in the event that the Trustee can
determine no such arithmetic mean, the lowest one-month United States
dollar lending rate which New York City banks selected by the Trustee are
quoting on such Interest Determination Date to leading European banks.
(iii) If on any Interest Determination Date the Trustee is required
but is unable to determine the Reserve Interest Rate in the manner
provided in paragraph (b) above, LIBOR for the related Classes of
Certificates shall be LIBOR as determined on the preceding applicable
Interest Determination Date.
Until all of the LIBOR Certificates are paid in full, the Trustee will at
all times retain at least four Reference Banks for the purpose of determining
LIBOR with respect to each Interest Determination Date. The Underlying
Certificate Seller initially shall designate the Reference Banks. Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Trustee and shall have an
established place of business in London. If any such Reference Bank should be
unwilling or unable to act as such or if the Underlying Certificate Seller
should terminate its appointment as Reference Bank, the Trustee shall promptly
appoint or cause to be appointed another Reference Bank. The Trustee shall have
no liability or
28
responsibility to any Person for (i) the selection of any Reference Bank for
purposes of determining LIBOR or (ii) any inability to retain at least four
Reference Banks which is caused by circumstances beyond its reasonable control.
(c) The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Trustee on each Interest
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement.
In determining LIBOR, any Pass-Through Rate for the LIBOR Certificates,
any Interest Settlement Rate, or any Reserve Interest Rate, the Trustee may
conclusively rely and shall be protected in relying upon the offered quotations
(whether written, oral or on the Dow Xxxxx Markets) from the BBA designated
banks, the Reference Banks or the New York City banks as to LIBOR, the Interest
Settlement Rate or the Reserve Interest Rate, as appropriate, in effect from
time to time. The Trustee shall not have any liability or responsibility to any
Person for (i) the Trustee's selection of New York City banks for purposes of
determining any Reserve Interest Rate or (ii) its inability, following a
good-faith reasonable effort, to obtain such quotations from, the BBA
designated banks, the Reference Banks or the New York City banks or to
determine such arithmetic mean, all as provided for in this Section 3.07.
The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
Section 3.08 Statements to Certificateholders. Concurrently with each
distribution on a Distribution Date, the Trustee will forward by mail to the
Holder of each Certificate, each Rating Agency a statement generally setting
forth the following information:
(i) Available Interest Funds and Available Principal Funds for such
Distribution Date, and the amount (if any) by which Available Principal
Funds has been reduced on account of the payment of certain expenses,
liabilities and taxes described in the definition thereof;
(ii) with respect to such Distribution Date, the aggregate amount of
principal and interest, stated separately, distributed to Holders of each
Class of Certificates;
(iii) with respect to such Distribution Date, the amount of any
interest shortfall for each Class of Certificates, together with the
amount of any unpaid interest shortfall for such Class immediately
following such Distribution Date;
(iv) with respect to each Class of Certificates, the losses allocated
to such Class with respect to such Distribution Date;
(v) the Class Certificate Balance of each Class of Certificates,
after giving effect to distributions of principal of such Certificates on
such Distribution Date;
29
(vi) the Pass-Through Rate for each Class of LIBOR Certificates for
the current and following Distribution Dates; and
(vii) any additional amount distributed to the Holder of the Class
A-R Certificate on such Distribution Date.
In addition, the Trustee will furnish to Certificateholders copies of the
statements received by the Trustee as the holder of the Deposited Underlying
Certificates on behalf of the Trust Fund.
Within a reasonable period of time after the end of each calendar year,
the Trustee will prepare and deliver to each person who at any time during the
previous calendar year was a Certificateholder of record a statement containing
the information required to satisfy any requirements of the Code, the REMIC
Provisions and regulations thereunder as from time to time are in force. For
purposes of this Section 3.08, the Trustee's duties are limited to the extent
that adequate information is reasonably available to the Trustee as described
herein.
Section 3.09 Reports of the Trustee; Distribution Account. Upon request of
a Certificateholder or Certificate Owner and at the expense of such
Certificateholder or Certificate Owner, the Trustee shall make available to
Certificateholders or Certificate Owners within 15 days after the date of
receipt of such request a statement setting forth the status of the
Distribution Account as of the close of business on the last day of the
calendar month immediately preceding such request, and showing, for the period
covered by such statement, the aggregate of deposits into and withdrawals from
the Distribution Account.
Section 3.10 Access to Certain Documentation and Information. The Trustee
shall provide the related Certificateholders or Certificate Owners with access
to a copy of each report, if any, received by it as holder of the Deposited
Underlying Certificates under the Underlying Agreement. The Trustee shall also
provide the Depositor and the Underlying Certificate Seller with access to any
such report and to all written reports, documents and records required to be
maintained by the Trustee in respect of its duties hereunder. Such access shall
be afforded without charge but only upon reasonable request evidenced by prior
written notice received by the Trustee two Business Days prior to the date of
such proposed access and during normal business hours at offices designated by
the Trustee.
30
ARTICLE IV
THE CERTIFICATES
Section 4.01 The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum denomination) and aggregate denominations per
Class set forth in the Preliminary Statement.
Subject to Section 7.01 hereof respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder at a
bank or other entity having appropriate facilities therefor, if (i) such Holder
has so notified the Trustee at least five Business Days prior to the related
Record Date and (ii) such Holder shall hold (A) a Notional Amount Certificate,
(B) 100% of the Class Certificate Balance of any Class of Certificates or (C)
Certificates of any Class with aggregate principal Denominations of not less
than $1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trust by an authorized officer of the Trustee. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures were affixed, authorized to sign on behalf of the Trustee
shall bind the Trustee, notwithstanding that such individuals or any of them
have ceased to be so authorized prior to the countersignature and delivery of
such Certificates or did not hold such offices at the date of such Certificate.
No Certificate shall be entitled to any benefit under this Agreement, or be
valid for any purpose, unless countersigned by the Trustee by manual signature,
and such countersignature upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly executed and
delivered hereunder. All Certificates shall be dated the date of their
countersignature. On the Closing Date, the Trustee shall countersign the
Certificates to be issued at the direction of the Depositor, or any affiliate
thereof.
The Depositor shall provide, or cause to be provided, to the Trustee on a
continuous basis, an adequate inventory of Certificates to facilitate
transfers.
Section 4.02 Certificate Register; Registration of Transfer and Exchange
of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in accordance
with the provisions of Section 4.06 hereof, a Certificate Register for the
Trust Fund in which, subject to the provisions of subsections (b) and (c) below
and to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. Upon surrender for registration of transfer of
any
31
Certificate, the Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance with
the Trustee's customary procedures.
(b) [reserved]
(c) No transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received either (i) a representation from the transferee
of such Certificate acceptable to and in form and substance satisfactory to the
Trustee (in the event such Certificate is a Residual Certificate such
requirement is satisfied only by the Trustee's receipt of a Representation
Letter from the Transferee substantially in the form of Exhibit F to the effect
that (x) such transferee is not an employee benefit plan or arrangement subject
to Section 406 of ERISA or a plan or arrangement subject to Section 4975 of the
Code, or a person acting on behalf of any such plan or arrangement or using the
assets of any such plan or arrangement to effect such transfer, or (y) a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificate satisfies the requirements for expemptive relief under Sections I
and III of PTCE 95-60 or (ii) in the case of any ERISA-Restricted Certificate
presented for registration in the name of an employee benefit plan or
arrangement subject to ERISA, or a plan or arrangement subject to Section 4975
of the Code (or comparable provisions of any subsequent enactments), or a
trustee or any other person acting on behalf of any such plan or arrangement,
or using such plan's or arrangement's assets, an Opinion of Counsel
satisfactory to the Trustee, which Opinion of Counsel shall not be an expense
of either the Trustee or the Trust Fund, addressed to the Trustee to the effect
that the purchase and holding of such ERISA-Restricted Certificate will not
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code and will not subject the Trustee to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
For purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Residual Certificate, in the event the representation
letter or opinion of counsel referred to in the preceding sentence is not so
furnished, none of the representations in clause (i), as appropriate, shall be
32
deemed to have been made to the Trustee by the transferee's (including an
initial acquiror's) acceptance of the ERISA-Restricted Certificates.
Notwithstanding anything else to the contrary herein, any purported transfer of
an ERISA-Restricted Certificate to or on behalf of an employee benefit plan
subject to ERISA or to Section 4975 of the Code without the delivery to the
Trustee of an Opinion of Counsel satisfactory to the Trustee as described above
shall be void and of no effect.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 4.02(c) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(d) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form attached hereto as Exhibit F.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Residual Certificate in violation of the provisions of this Section
4.02(d) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
4.02(d), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section
33
4.02(c) and this Section 4.02(d) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the
Transfer was registered after receipt of the related Transfer Affidavit
and Transferor Certificate. The Trustee shall be entitled but not
obligated to recover from any Holder of a Residual Certificate that was in
fact not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Residual Certificate at and after either such time.
Any such payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in this
Section 4.02(d) shall cease to apply (and the applicable portions of the legend
on a Residual Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of
Counsel shall not be an expense of the Trust Fund, the Trustee, the Underlying
Certificate Seller or the Depositor, to the effect that the elimination of such
restrictions will not cause each REMIC hereunder to fail to qualify as a REMIC
at any time that the Certificates are outstanding or result in the imposition
of any tax on the Trust Fund, a Certificateholder or another Person. Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
hereby consents to any amendment of this Agreement which, based on an Opinion
of Counsel furnished to the Trustee, is reasonably necessary (a) to ensure that
the record ownership of, or any beneficial interest in, a Residual Certificate
is not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(e) The preparation and delivery of all certificates and opinions referred
to above in this Section 4.02(e) in connection with transfer shall be at the
expense of the parties to such transfers.
(f) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate
34
Owners; and (vi) the Trustee may rely and shall be fully protected in relying
upon information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor or (y) after the occurrence of an Underlying
Event of Default, the Certificate Owners representing at least 51% of the
Certificate Balance of the Book-Entry Certificates together advise the Trustee
and the Depository through the Depository Participants in writing that
continuation of the book-entry system through the Depository is no longer in
the best interests of the Certificate Owners, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully-registered Certificates (the
"Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the
Depository, accompanied by the instructions from the Depository for
registration, the Trustee shall issue the Definitive Certificates. Neither the
Depositor nor the Trustee shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in
relying on, such instructions. The Depositor shall provide the Trustee with an
adequate inventory of certificates to facilitate the issuance and transfer of
Definitive Certificates. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Trustee, to
the extent applicable with respect to such Definitive Certificates and the
Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder; provided that the Trustee shall not by virtue of
its assumption of such obligations become liable to any party for any act or
failure to act of the Depository.
Section 4.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and (b) there is delivered to the Depositor and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee that such Certificate
has been acquired by a bona fide purchaser, the Trustee shall execute,
countersign and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 4.03, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 4.03 shall constitute complete and
35
indefeasible evidence of ownership, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 4.04 Persons Deemed Owners.
The Depositor, the Trustee and any agent of the Depositor or the Trustee
may treat the Person in whose name any Certificate is registered as the owner
of such Certificate for the purpose of receiving distributions as provided in
this Agreement and for all other purposes whatsoever, and neither the
Depositor, the Trustee nor any agent of the Depositor or the Trustee shall be
affected by any notice to the contrary.
Section 4.05 Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders and/or Certificate Owners (a) request
such information in writing from the Trustee, (b) state that such
Certificateholders and/or Certificate Owners desire to communicate with other
Certificateholders and/or Certificate Owners with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders and/or Certificate Owners propose
to transmit, or if the Depositor shall request such information in writing from
the Trustee, then the Trustee shall, within ten Business Days after the receipt
of such request, provide the Depositor or such Certificateholders and/or
Certificate Owners at such recipients' expense the most recent list of the
Certificateholders of such Trust Fund held by the Trustee, if any. The
Depositor and every Certificateholder and/or Certificate Owner, by receiving
and holding a Certificate or beneficial interest therein, agree that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 4.06 Maintenance of Office or Agency. The Trustee will maintain or
cause to be maintained at its expense an office or offices or agency or
agencies in New York City where Certificates may be surrendered for
registration of transfer or exchange. The Trustee initially designates its
Corporate Trust Office for such purposes. The Trustee will give prompt written
notice to the Certificateholders of any change in such location of any such
office or agency.
36
ARTICLE V
CONCERNING THE TRUSTEE
Section 5.01 Duties of Trustee.
The Trustee shall undertake to perform such duties and only such duties as
are specifically set forth in this Agreement.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it believed in good
faith to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, unless
it shall be finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of Holders of Certificates evidencing not less than 25% of the Voting
Rights of Certificates relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Agreement.
Section 5.02 Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 5.01:
(i) the Trustee may request and rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
37
presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(iv) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing so to do by Holders of Certificates
evidencing not less than 25% of the Voting Rights allocated to each Class of
Certificates;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys;
(vi) the Trustee shall not be required to risk or expend its own funds or
otherwise incur any financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers hereunder if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it;
(vii) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have offered
to the Trustee reasonable security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities which may be incurred therein or
thereby;
(viii) whenever in the administration of this Agreement the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, conclusively rely upon an Officers' Certificate; and
(ix) the Trustee shall not be deemed to have notice of any breach by the
Underlying Certificate Seller of any representation, warranty or covenant or
any default or event of default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default or breach is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Certificates and this
Agreement.
All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of such Certificates, or the production thereof at the trial
or other proceeding relating thereto, and any such suit, action or
38
proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of such Certificates, subject to the provisions of
this Agreement.
Section 5.03 Trustee Not Liable for Certificates or Deposited Underlying
Certificates. The recitals contained herein and in the Certificates shall be
taken as the statements of the Depositor or the Underlying Certificate Seller,
as the case may be, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Deposited
Underlying Certificates or related document other than with respect to the
Trustee's execution and counter-signature of the Certificates. The Trustee
shall not be accountable for the use or application by the Depositor or the
Underlying Certificate Seller of any funds paid to the Depositor or the
Underlying Certificate Seller in respect of the Deposited Underlying
Certificates.
Section 5.04 Trustee May Own Certificates. The Trustee in its individual
or any other capacity may become the owner or pledgee of Certificates with the
same rights as it would have if it were not the Trustee.
Section 5.05 Trustee's Fees and Expenses. The Trustee acknowledges that on
the Closing Date it will receive as compensation for all services rendered by
it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder and for reimbursement of
certain expenses (including, for the first four tax years of the Trust Fund,
REMIC tax preparation expenses), payment of a mutually agreed upon one time fee
from the Underlying Certificate Seller. In the event of the resignation or
removal of the Trustee pursuant to the terms of this Agreement, such Trustee
will transfer, deliver and otherwise convey a pro rated portion of such payment
to the successor Trustee as compensation to the successor trustee.
Section 5.06 Indemnification of the Trustee. The Underlying Certificate
Seller hereby covenants and agrees to indemnify the Trustee and any director,
officer, employee, or agent of the Trustee for and to hold them harmless
against, any and all losses, liabilities, damages, claims or expenses arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder (including, without limitation, any losses, liabilities,
damages, claims or expenses arising from the failure of the Underlying
Certificate Seller to perform its obligations in accordance with the provisions
of this Agreement or of defending itself against any claim or liability in
connection with the exercise or performance of any powers or duties hereunder),
other than those resulting from the negligence or bad faith in the performance
of any of the Trustee's duties hereunder or by reason of reckless disregard of
the Trustee's obligations and duties hereunder. Such indemnification shall
survive the termination of this Agreement and the Trust Fund created hereby or
the resignation or removal of the Trustee pursuant to the terms hereof.
Section 5.07 Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be a corporation or association organized and doing business
under the laws of a state or the United States of America, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
federal or state authority and with a credit rating which would not cause
either of the Rating Agencies to reduce or withdraw their respective then
current ratings of the Certificates (or having provided such security from time
to time as is sufficient to avoid such reduction as
39
evidenced in writing by each rating agency). If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 5.07 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 5.07, the Trustee shall resign immediately in the
manner and with the effect specified in Section 5.08 hereof. The entity serving
as Trustee may have normal banking and trust relationships with the Depositor
and its affiliates and with the Underlying Certificate Seller and its
affiliates; provided, however, that such entity cannot be an affiliate of the
Depositor or the Underlying Certificate Seller. The Trustee hereunder shall at
all times be the same Person as the Underlying Trustee or shall have an
agreement with the Underlying Trustee to have access to the information
relating to the Underlying Certificate Account in order to enable the Trustee
to perform its duties under Section 3.06(a).
Section 5.08 Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Underlying Certificate Seller and each Rating Agency not less than 60 days
before the date specified in such notice when, subject to Section 5.09, such
resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 5.09 meeting the qualifications set forth in Section
5.07. If no successor trustee meeting such qualifications shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice or resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.07 hereof and shall fail to resign after written
request thereto by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a
tax is imposed with respect to the Trust Fund by any state in which the Trustee
or the Trust Fund is located and the imposition of such tax would be avoided by
the appointment of a different trustee, then the Depositor may remove the
Trustee and appoint a successor trustee by written instrument, in triplicate,
one copy of which instrument shall be delivered to the Trustee, one copy of
which shall be delivered to the Depositor and one copy to the successor
trustee.
The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered by the successor Trustee to the Depositor, one complete set to the
Trustee so removed and one complete set to the successor so appointed. Notice
of any removal of the Trustee shall be given to each Rating Agency and the
Underlying Certificate Seller by the successor trustee.
40
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 5.08 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 5.09 hereof.
Section 5.09 Successor Trustee.
Any successor trustee appointed as provided in Section 5.08 hereof shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Depositor an instrument accepting such appointment hereunder
and thereupon the resignation or removal of the predecessor trustee shall
become effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor and the predecessor trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for more fully and certainly vesting and confirming in the
successor trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this Section
5.09 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 5.07 hereof and its appointment shall
not adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in this
Section 5.09, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates. If the Depositor fails to mail such
notice within 10 days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of
the Depositor.
Section 5.10 Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall be eligible
under the provisions of Section 5.07 hereof without the execution or filing of
any paper or further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 5.11 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund at the time be located, the Depositor and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund or any part thereof, whichever
is applicable, and, subject to the other provisions of this Section 5.11, such
powers, duties, obligations, rights and trusts as the Depositor and the Trustee
may consider necessary or
41
desirable. If the Depositor shall not have joined in such appointment within 15
days after the receipt by it of a request to do so, the Trustee alone shall
have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 5.07 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 5.09.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this Section
5.11, all rights, powers, duties and obligations conferred or imposed upon the
Trustee shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Depositor hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason of any
act or omission of any other trustee hereunder and such appointment shall not,
and shall not be deemed to, constitute any such separate trustee or co-trustee
as agent of the Trustee; and
(iii) The Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the separate trustees and co-trustees, when and
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article V. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Trustee, to the extent permitted by law, without the appointment of a
new or successor trustee.
Section 5.12 Tax Matters.
42
It is intended that the assets with respect to which any REMIC election is
to be made, as set forth in the Preliminary Statement, shall constitute, and
that the conduct of matters relating to such assets shall be such as to qualify
such assets as, a "real estate mortgage investment conduit" as defined in and
in accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of any such REMIC and that in such
capacity it shall: (a) prepare and file, or cause to be prepared and filed, in
a timely manner, a U.S. Real Estate Mortgage Investment Conduit Income Tax
Return (Form 1066 or any successor form adopted by the Internal Revenue
Service) and prepare and file or cause to be prepared and filed with the
Internal Revenue Service and applicable state or local tax authorities income
tax or information returns for each taxable year with respect to any such
REMIC, containing such information and at the times and in the manner as may be
required by the Code or state or local tax laws, regulations, or rules, and
furnish or cause to be furnished to Certificateholders the schedules,
statements or information at such times and in such manner as may be required
thereby; (b) within thirty days of the Closing Date, furnish or cause to be
furnished to the Internal Revenue Service, on Forms 8811 or as otherwise may be
required by the Code, the name, title, address, and telephone number of the
person that the holders of the Certificates may contact for tax information
relating thereto, together with such additional information as may be required
by such Form, and update such information at the time or times in the manner
required by the Code; (c) make or cause to be made elections that such assets
be treated as a REMIC on the federal tax return for its first taxable year
(and, if necessary, under applicable state law); (d) prepare and forward, or
cause to be prepared and forwarded, to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including without limitation, the
calculation of any original issue discount using the Prepayment Assumption; (e)
provide information necessary for the computation of tax imposed on the
transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
Non-Permitted Transferee, or a pass-through entity in which a Non-Permitted
Transferee is the record holder of an interest (the reasonable cost of
computing and furnishing such information may be charged to the Person liable
for such tax); (f) to the extent that they are under its control conduct
matters relating to such assets at all times that any Certificates are
outstanding so as to maintain the status as a REMIC under the REMIC Provisions;
(g) not knowingly or intentionally take any action or omit to take any action
that would cause the termination of the REMIC status of any REMIC; (h) pay,
from the sources specified in the last paragraph of this Section 5.12, the
amount of any federal or state tax, including prohibited transaction taxes as
described below, imposed on any such REMIC prior to its termination when and as
the same shall be due and payable (but such obligation shall not prevent the
Trustee or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Trustee from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings); (i) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other person as may be required
to sign such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to any such REMIC, including but not limited to
the income, expenses, assets and liabilities thereof and the fair market value
and adjusted basis of the assets determined at such intervals as may be
required by the Code, as may be necessary to prepare the foregoing returns,
schedules, statements or information; and (k) as and when necessary and
appropriate, represent
43
any such REMIC in any administrative or judicial proceedings relating to an
examination or audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of any such REMIC, enter into
settlement agreements with any governmental taxing agency, extend any statute
of limitations relating to any tax item of any such REMIC, and otherwise act on
behalf of any such REMIC in relation to any tax matter or controversy involving
it.
In order to enable the Trustee to perform its duties as set forth herein,
the Depositor and the Underlying Certificate Seller shall provide, or cause to
be provided, to the Trustee within ten (10) days after the Closing Date all
information or data that the Trustee requests in writing and determines to be
relevant for tax purposes to the valuations and offering prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flows of the Certificates and the Deposited
Underlying Certificate. Thereafter, the Depositor and the Underlying
Certificate Seller shall provide to the Trustee promptly upon written request
therefor, any such additional information or data that the Trustee may, from
time to time, reasonably request in order to enable the Trustee to perform its
duties as set forth herein. The Underlying Certificate Seller hereby
indemnifies the Trustee for any losses, liabilities, damages, claims or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor or the Underlying
Certificate Seller to provide, or to cause to be provided, accurate information
or data to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of any
REMIC hereunder as defined in Section 860F(a)(2) of the Code, on the "net
income from foreclosure property" of any REMIC hereunder as defined in Section
860G(c) of the Code, on any contribution to such REMIC after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed,
including, without limitation, any minimum tax imposed upon the REMIC hereunder
pursuant to Sections 23153 and 24874 of the California Revenue and Taxation
Code, if not paid as otherwise provided for herein, such tax shall be paid by
(i) the Trustee, if any such other tax arises out of or results from a breach
by the Trustee of any of its obligations under this Agreement, (ii) the
Depositor, in the case of any such minimum tax, or if such tax arises out of or
results from a breach by the Depositor of any of its obligations under this
Agreement, (iii) the Underlying Certificate Seller, if any such tax arises out
of or results from the Underlying Certificate Seller's obligation to repurchase
the Deposited Underlying Certificates pursuant to Section 2.03 or (iv) in all
other cases, or in the event that the Trustee, the Depositor or the Underlying
Certificate Seller fails to honor its obligations under the preceding clauses
(i),(ii) or (iii), any such tax will be paid with amounts otherwise to be
distributed to the Certificateholders, as provided in Section 3.03.
44
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liability of the Depositor. The Depositor shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
upon and undertaken by the Depositor herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor. The
Depositor will keep in full effect its existence, rights and franchises as a
corporation under the laws of the United States or under the laws of one of the
states thereof and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement to perform its duties under this Agreement.
Any Person into which the Depositor may be merged or consolidated, or any
Person resulting from any merger or consolidation to which the Depositor shall
be a party, or any person succeeding to the business of the Depositor, shall be
the successor of the Depositor hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 6.03 Limitation on Liability of the Depositor and Others. None of
the Depositor, or any of the directors, officers, employees or agents of the
Depositor shall be under any liability to the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor or any such Person against any breach
of representations or warranties made by it herein or protect the Depositor or
any such Person from any liability which would otherwise be imposed by reasons
of willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Depositor and any director, officer, employee or agent of the Depositor may
rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder. The
Depositor and any director, officer, employee or agent of the Depositor shall
be indemnified by the Trust Fund and held harmless against any loss, liability
or expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. The Depositor, shall be under no
obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or liability; provided, however, that the Depositor
may in its discretion undertake any such action that it may deem necessary or
desirable in respect of this Agreement and the rights and duties of the parties
hereto and interests of the Trustee and the Certificateholders hereunder. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust Fund,
and the Depositor shall be entitled to be reimbursed therefor out of the
Distribution Account.
45
ARTICLE VII
TERMINATION
Section 7.01 Termination.
Subject to Section 7.03, the obligations and responsibilities of the
Depositor, the Underlying Certificate Seller and the Trustee created hereby
with respect to the Trust Fund shall terminate upon the later of (i) a
termination of the Underlying Trust pursuant to Article IX of the Underlying
Agreement, (ii) the receipt of the final distribution to be made on the
Deposited Underlying Certificates in accordance with the terms and conditions
of the Underlying Agreement and (iii) the distribution to Certificateholders of
all amounts required to be distributed to them pursuant to this Agreement. In
no event shall the trusts created hereby continue beyond the earlier of (i) the
expiration of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof and (ii) the Latest Possible Maturity Date.
Section 7.02 Final Distribution on the Certificates.
If the Trustee receives notice that the Underlying Trust is to be
terminated in accordance with the terms of the Underlying Agreement, notice
shall be given by the Trustee to Certificateholders as promptly as practicable
thereafter.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee by letter to Certificateholders mailed not earlier than the 10th day
and no later than the 15th day of the month next preceding the month of such
final distribution and not later than as promptly practicable after the Trustee
receives notice that the Underlying Trust is to be terminated in accordance
with the terms of the Underlying Agreement. Any such notice shall specify (a)
the Distribution Date upon which final distribution on the Certificates will be
made upon presentation and surrender of Certificates at the office therein
designated, (b) the amount of such final distribution, (c) the location of the
office or agency at which such presentation and surrender must be made, and (d)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of
the Certificates at the office therein specified. The Trustee will also give
such notice to each Rating Agency at the time such notice is given to
Certificateholders.
Upon the final distribution with respect to the Trust Fund, the Trustee
shall promptly release to the Holder of the Class A-R Certificate the Deposited
Underlying Certificates.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in the order
set forth in Section 3.04. hereof, on the final Distribution Date in proportion
to their respective Percentage Interests, with respect to Certificateholders of
the same Class, an amount equal to (i) as to each Class of Regular
Certificates, the Certificate Balance thereof plus accrued interest thereon (or
on their Notional
46
Amount, if applicable) in the case of an interest bearing Certificate and (ii)
as to the Residual Certificates, the amount, if any, which remains on deposit
in the Distribution Account (other than the amounts retained to meet claims)
after application pursuant to clause (i) above. Notwithstanding the reduction
of the Class Certificate Balance of any Class of Certificates to zero, such
Class will be outstanding hereunder (solely for the purpose of receiving
distributions and not for any other purpose) until the termination of the
respective obligations and responsibilities of the Depositor, the Underlying
Certificate Seller, and the Trustee hereunder in accordance with Article VII.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Trustee may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation, the Class A-R
Certificateholder shall be entitled to all unclaimed funds and other assets of
the Trust Fund which remain subject hereto.
Section 7.03 Additional Termination Requirements.
(a) Upon the receipt of the final distribution to be made on the Deposited
Underlying Certificates in accordance with the terms and conditions of the
Underlying Agreement, the Holder of the Class A-R Certificate shall cause the
Trust Fund to be terminated in accordance with the following additional
requirements, unless the Trustee has been supplied with an Opinion of Counsel,
at the expense of the Holder of the Class A-R Certificate, to the effect that
the failure to comply with the requirements of this Section 7.03 will not (i)
result in the imposition of taxes on "prohibited transactions" on any REMIC as
defined in section 860F of the Code, or (ii) cause any REMIC to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
(1) Upon receipt of the notice given pursuant to the Underlying
Agreement, but in no event later than 90 days prior to the final
Underlying Distribution Date set forth in the notice given by the Master
Servicer in accordance with the terms of the Underlying Agreement, the
Trustee shall prepare, at the expense of the "tax matters person," and
adopt a plan of complete liquidation within the meaning of section
860F(a)(4) of the Code which, as evidenced by an Opinion of Counsel (which
opinion shall not be an expense of the Trustee or the Tax Matters Person),
meets the requirements of a qualified liquidation; and
(2) Within 90 days after the time of adoption of such a plan of
complete liquidation, the Trustee shall sell all of the assets of the
Trust Fund to the Holder of the Class A-R Certificate for cash in
accordance with Section 7.01.
(b) The Trustee as agent for any REMIC created herunder hereby agrees to
adopt and sign such a plan of complete liquidation upon the written request of
the Holder of the Class A-R Certificate, and the receipt of the Opinion of
Counsel referred to in Section 7.03(a)(1) and to take
47
such other action in connection therewith as may be reasonably requested by the
Holder of the Class A-R Certificate.
(c) By their acceptance of the Certificates, the Holders thereof hereby
authorize the Holder of the Class A-R Certificate to prepare and the Trustee to
adopt and sign a plan of complete liquidation.
48
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01 Amendment. This Agreement may be amended from time to time by
the Depositor and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake; (ii) to correct any
defective provision herein or to supplement any provision herein which may be
inconsistent with any other provision herein; (iii) to conform this Agreement
to the final Prospectus Supplement provided to investors in connection with the
initial offering of the Certificates; (iv) to add to the duties of the
Depositor; (v) to modify, alter, amend, add, or to rescind any of the terms or
provisions contained in this Agreement to comply with any rules or regulations
promulgated by the Securities and Exchange Commission from time to time; (vi)
to add any other provisions with respect to matters or questions arising
hereunder; or (vii) to modify, alter, amend, add to or rescind any of the terms
or provisions contained in this Agreement; provided, that any action pursuant
to clauses (vi) or (vii) above shall not, as evidenced by an Opinion of Counsel
(which Opinion of Counsel shall not be an expense of the Trustee or the Trust
Fund), adversely affect in any material respect the interests of any
Certificateholder; provided, however, that the amendment shall not be deemed to
adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. Notwithstanding the foregoing, no amendment that
significantly changes the permitted activities of the Trust created by this
Agreement may be made without the consent of a Majority in Interest of each
Class of Certificates affected by such amendment. Each party to this Agreement
hereby agrees that it will cooperate with each other party in amending this
Agreement pursuant to clause (v) above. The Trustee and the Depositor also may
at any time and from time to time amend this Agreement without the consent of
the Certificateholders to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or helpful to (i) maintain the qualification
of any REMIC as a REMIC under the Code, (ii) avoid or minimize the risk of the
imposition of any tax on any REMIC pursuant to the Code that would be a claim
at any time prior to the final redemption of the Certificates or (iii) comply
with any other requirements of the Code, provided that the Trustee has been
provided an Opinion of Counsel, which opinion shall be an expense of the party
requesting such opinion but in any case shall not be an expense of the Trustee
or the Trust Fund, to the effect that such action is necessary or helpful to,
as applicable, (i) maintain such qualification, (ii) avoid or minimize the risk
of the imposition of such a tax or (iii) comply with any such requirements of
the Code.
This Agreement may also be amended from time to time by the Depositor and
the Trustee with the consent of the Underlying Certificate Seller (which will
not be unreasonably withheld) and the consent of the Holders of a Majority in
Interest of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the
49
amount of, or delay the timing of, payments required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in (i), without the
consent of the Holders of Certificates of such Class evidencing, as to such
Class, Percentage Interests aggregating 66 2/3% or (iii) reduce the aforesaid
percentages of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all such Certificates
then outstanding.
Any amendment made pursuant to either of the preceding two paragraphs that
materially and adversely affects the rights of the Underlying Certificate
Seller shall not be made without the prior written consent of the Underlying
Certificate Seller.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which opinion shall not be an expense of the
Trustee or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on any REMIC or the Certificateholders or cause any REMIC
to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent shall approve the substance thereof. The manner
of obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations
as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund) satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement and
that all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material respect
the interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 8.01.
Section 8.02 Action Under and Conflicts With the Underlying Agreement.
Subject to the terms hereof, in the event that there shall be any matters
arising under the Underlying Agreement which require the vote or direction of
the holders of the Deposited Underlying Certificates, the Trustee, as holder of
the Deposited Underlying Certificates, shall vote the Deposited Underlying
Certificates in accordance with instructions received from Holders of a
Majority in Interest of the related Class of Regular Certificates. In the
absence of any such instructions, the Trustee shall not vote; provided,
however, that, notwithstanding the absence of such instructions, in the event a
required distribution pursuant to the Underlying Agreement shall not have been
made, the Trustee shall, subject to the provisions of Article V hereof, pursue
such remedies as may be available to it as holder of such Deposited Underlying
Certificates in accordance with the terms of the Underlying Agreement.
50
Section 8.03 Recordation of Agreement. This Agreement (or an abstract
hereof, if acceptable by the applicable recording office) is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdiction in which any or all of the
properties subject to the underlying mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Depositor at its expense but only upon direction by the Trustee
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 8.04 Certain REMIC Matters. The Depositor, upon request, shall
promptly furnish the Trustee with all such information as may be reasonably
required in connection with the Trustee's preparation of all Tax Returns of
each REMIC hereunder or to enable the Trustee to respond to reasonable requests
for information made by related Certificateholders in connection with tax
matters.
Section 8.05 Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of
an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless
there shall have been a failure to pay amounts due under this Agreement to the
Certificateholders and the Holders of Certificates evidencing not less than 25%
of the Voting Rights evidenced by the Certificates shall also have made written
request to the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and
intended, and being expressly covenanted by each Certificateholder with every
other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice
51
the rights of the Holders of any other of the Certificates, or to obtain or
seek to obtain priority over or preference to any other such Holder or to
enforce any right under this Agreement, except in the manner herein provided
and for the common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 8.05, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 8.06 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 8.07 Notices. (a) The Trustee shall use its best efforts to
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The resignation or termination of the Trustee and the
appointment of any successor;
3. The repurchase of the Deposited Underlying Certificates pursuant
to Section 2.03;
4. The final payment to Certificateholders; and
5. Any rating action involving the Deposited Underlying
Certificates, which notice shall be made by first-class mail
within two Business Days after the Trustee gains actual
knowledge thereof.
In addition, the Trustee shall promptly furnish to each Rating Agency, the
Underlying Certificate Seller copies of each report to Certificateholders
described in Section 3.08.
All demands, notices and directions hereunder shall be in writing and
shall be deemed effective when delivered to: (i) in the case of the Depositor,
CWMBS, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Structured Finance, and a copy to CWMBS, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: General Counsel, (ii) in the case of the
Underlying Certificate Seller, Bear, Xxxxxxx & Co. Inc., 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 Attention: Legal and (iii) in the case of the Trustee,
The Bank of New York, 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust - Resecuritization Unit, or such other address as
may hereafter be furnished by any party to the others. Any notice required or
permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register; any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or
not the Certificateholder receives such notice.
Section 8.08 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held
52
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the
other provisions of this Agreement or of the Certificates or the rights of the
Holders thereof.
Section 8.09 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto, and all such provisions shall inure to the
benefit of the Certificateholders.
Section 8.10 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 8.11 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 8.12 Protection of Assets.
(a) Except for transactions and activities entered into in connection with
the securitization that is the subject of this Agreement, the Trust Fund
created by this Agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell
assets; or
(iii) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid.
* * *
53
IN WITNESS WHEREOF, the Depositor, the Underlying Certificate Seller and
the Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
CWMBS, INC.,
as Depositor
By: /s/ Xxxxxx Xxxxx
_________________
Name: Xxxxxx Xxxxx
Title: Vice President
BEAR, XXXXXXX & CO. INC.,
as Underlying Certificate Seller
By: /s/ Xxxx Xxxxxxxx
_______________
Name: Xxxx Xxxxxxxx
Title: Senior Managing Director
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By: /s/ Xxxxxx X'Xxxxxx
___________________
Name: Xxxxxx X'Xxxxxx
Title: Assistant Treasurer
SCHEDULE I
LIST OF DEPOSITED UNDERLYING CERTIFICATES AND THE UNDERLYING AGREEMENT
DEPOSITED UNDERLYING PRINCIPAL BALANCE AS
CERTIFICATES OF NOVEMBER 26, 2004(1) UNDERLYING AGREEMENT
------------------------ --------------------------- ---------------------
An approximately 91.35% interest in CWMBS, $321,510,435.63 Pooling and Servicing Agreement, dated
Inc., CHL Mortgage Pass-Through Trust as of June 1, 2003 among CWMBS, Inc.,
2003-29, Mortgage Pass-Through as depositor, Countrywide Home Loans,
Certificates, Series 2003-29, Class A-1 Inc., as seller, Countrywide Home
Certificates Loans Servicing LP, as master
servicer, and The Bank of New York, as
trustee.
----------
(1) After giving effect to distributions made on such date.
S-1-1
SCHEDULE II
Principal Balances Schedule
[not applicable]
S-II-1
EXHIBIT A
[FORM OF SENIOR CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
A-1
Certificate No. : 1
Cut-off Date : November 26, 2004
First Distribution Date : December 27, 2004
Initial Certificate Balance
of this Certificate
("Denomination") : $[o]
Initial Certificate Balance
of all Certificates
of this Class : $[o]
CUSIP : [o]
Interest Rate : [o]%
Maturity Date : [August 25, 2033]
CWMBS, INC.
Resecuritization Pass-Through Trust 2004-28R
Resecuritization Pass-Through Certificates, Series 2004-28R
Class [o]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class with
respect to a Trust Fund consisting primarily of the Deposited
Underlying Certificates.
CWMBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the Underlying Certificate Seller or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Deposited
Underlying Certificates are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that [___________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balance
of all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
A-2
Deposited Underlying Certificates deposited by CWMBS, Inc. (the "Depositor").
The Trust Fund was created pursuant to a Trust Agreement dated as of the
Cut-off Date specified above (the "Agreement") among the Depositor, Bear,
Xxxxxxx & Co. Inc., as underlying certificate seller (the "Underlying
Certificate Seller"), and The Bank of New York, as trustee, securities
intermediary and bank (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November ___, 0000
XXX XXXX XX XXX XXXX,
as Trustee
By ______________________
Countersigned:
By
---------------------------------------------
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
A-4
EXHIBIT B
[RESERVED]
B-1
EXHIBIT C
[FORM OF RESIDUAL CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON RESIDUAL INTEREST" ISSUED
UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY NOT BE
TRANSFERRED TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE
TRANSFEREE OF THE DUTIES OF THE SERVICER UNDER SUCH AGREEMENT.]
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT TO
SECTION 4975 OF THE CODE, OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY WHICH IS
PURCHASING CERTIFICATES WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY GENERAL
ACCOUNTS" AS SUCH TERM IS DEFINED IN SECTION V(e) of prohibited transaction
class exemption 95-60 ("ptce 95-60"), and the purchase and holding of such
certificates are covered under sections i and iii of ptce 95-60 OR AN OPINION
OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO
THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
C-1
Certificate No. : [o]
Cut-off Date : November 26, 2004
First Distribution Date : December 27, 2004
Initial Certificate Balance
of this Certificate
("Denomination") : $[o]
Initial Certificate Balance
of all Certificates
of this Class : $[o]
CUSIP : [o]
Interest Rate : [o]%
Maturity Date : [August 25, 2033]
CWMBS, INC.
Resecuritization Pass-Through Trust 2004-28R
Resecuritization Pass-Through Certificates, Series 2004-28R
Class A-R
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class with
respect to a Trust Fund consisting primarily of the Deposited
Underlying Certificates.
CWMBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the Underlying Certificate Seller or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Deposited
Underlying Certificates are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that [_________________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balance
of all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting
C-2
primarily of the Deposited Underlying Certificates deposited by CWMBS, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Trust Agreement
dated as of the Cut-off Date specified above (the "Agreement") among the
Depositor, Bear, Xxxxxxx & Co. Inc., as underlying certificate seller (the
"Underlying Certificate Seller"), and The Bank of New York, as trustee,
securities intermediary and bank (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust Fund
will be made only upon presentment and surrender of this Class A-R Certificate
at the Corporate Trust Office or the office or agency maintained by the Trustee
in New York, New York.
No transfer of a Class A-R Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code,
nor a person acting on behalf of or investing plan assets of any such plan,
which representation letter shall not be an expense of the Trustee or the
Depositor, (ii) or that such Transferee is an insurance company which is
purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that purchase and holding
of such Certificates are covered under Sections I and III of PTCE 95-60 or
(iii) an Opinion of Counsel satisfactory to the Trustee and the Depositor to
the effect that the purchase or holding of such Class A-R Certificate will not
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code and will not subject the Trustee or the Depositor to
any obligation in addition to those undertaken in this Agreement, which Opinion
of Counsel shall not be an expense of the Trustee or the Depositor.
Notwithstanding anything else to the contrary herein, any purported transfer of
a Class A-R Certificate to or on behalf of an employee benefit plan subject to
ERISA or to the Code without the opinion of counsel satisfactory to the Trustee
as described above shall be void and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have agreed to
be bound by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest
in this Class A-R Certificate must be a Permitted Transferee, (ii) no Ownership
Interest in this Class A-R Certificate may be transferred without delivery to
the Trustee of (a) a transfer affidavit of the proposed transferee and (b) a
transfer certificate of the transferor, each of such documents to be in the
form described in the Agreement, (iii) each person holding or acquiring any
Ownership Interest in this Class A-R Certificate must agree to require a
transfer affidavit and to deliver a transfer certificate to the Trustee as
required pursuant to the Agreement, (iv) each person holding or acquiring an
Ownership Interest in this Class A-R Certificate must agree not to transfer an
Ownership Interest in this Class A-R Certificate if it has actual knowledge
that the proposed transferee is not a
C-4
Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Class A-R Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
C-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November ___, 0000
XXX XXXX XX XXX XXXX,
as Trustee
By ______________________
Countersigned:
By
---------------------------------------------
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
C-5
EXHIBIT D
[FORM OF REVERSE OF CERTIFICATE]
CWMBS, INC.
Resecuritization Pass-Through Trust 2004-28R
Resecuritization Pass-Through Certificates, Series 2004-28R
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, Inc. Resecuritization Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificates are limited in right of payment to certain distributions
in respect of the Deposited Underlying Certificates, all as more specifically
set forth in the Agreement. The Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds on deposit in the
Distribution Account for payment hereunder and that the Trustee is not liable
to the Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such day is not a Business Day, the Business Day
immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the
D-2
Certificateholders under the Agreement at any time by the Depositor, the
Underlying Certificate Seller and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation of the Deposited
Underlying Certificates or the disposition of all property in respect thereof
and the distribution to Certificateholders of all amounts required to be
distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent with
that meaning.
D-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto -------------------------------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
-------------------------------------------------------------------------
Dated:
------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to, -----------------------------------------------------------
-------------------------------------------------------------------------------
------------------------------------------------------------------------------,
for the account of ------------------------------------------------------------
account number ------------------------, or, if mailed by check, to
-------------------------------------------------------------------------------
Applicable statements should be mailed to -------------------------------------,
-------------------------------------------------------------------------------
------------------------------------------------------------------------------.
This information is provided by ------------------------------------------,
the assignee named above, or -------------------------------------------------,
as its agent.
D-3
STATE OF )
) ss.:
COUNTY OF )
On the _____day of ___________________, 20__ before me, a notary public in
and for said State, personally appeared _____________________________________,
known to me who, being by me duly sworn, did depose and say that he executed
the foregoing instrument.
---------------------------------
Notary Public
[Notarial Seal]
D-4
EXHIBIT E
FORM OF TRANSFEROR'S AFFIDAVIT
---------------------
Date
CWMBS, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Resecuritization Group
CWMBS, Inc. Series 2004-28R
Re: CWMBS, Inc.
Resecuritization Mortgage Certificates, Series 2004-28R
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the Class A-R Certificate issued
pursuant to the Trust Agreement dated as of November 26, 2004 among CWMBS,
Inc., as depositor, Bear, Xxxxxxx & Co. Inc., as underlying certificate seller,
and The Bank of New York, as trustee, we certify that to the extent we are
disposing of a Class A-R Certificate, we have no knowledge the Transferee is
not a Permitted Transferee.
Very truly yours,
--------------------------------------
Print Name of Transferor
By:-----------------------------------
Authorized Officer
E-1
EXHIBIT F
TRANSFER AFFIDAVIT
CWMBS, Inc.
Resecuritization Mortgage Certificates, Series 2004-28R
-------------------------------------------------------
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1 The undersigned is an officer of , the proposed Transferee of an
Ownership Interest in a Class A-R Certificate (the "Certificate") issued
pursuant to the Trust Agreement, (the "Agreement") dated as of November 26,
2004 among CWMBS, Inc., as depositor (the "Depositor"), Bear, Xxxxxxx & Co.
Inc., as underlying certificate seller, and The Bank of New York, as trustee.
Capitalized terms used, but not defined herein or in Exhibit 1 hereto, shall
have the meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee.
2 The Transferee is, as of the date hereof, and will be, as of the date of
the Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate for its own account or as the nominee, trustee or
agent of another Person, in which case the Transferee has attached hereto an
affidavit from such Person in substantially the same form as this affidavit.
The Transferee has no knowledge that any such affidavit is false.
3 The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman)
for a Person that is not a Permitted Transferee, on the agent; and (iii) the
Person otherwise liable for the tax shall be relieved of liability for the tax
if the subsequent Transferee furnished to such Person an affidavit that such
subsequent Transferee is a Permitted Transferee and, at the time of Transfer,
such Person does not have actual knowledge that the affidavit is false.
4 The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a
F-1
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives and, except as
may be provided in Treasury Regulations, persons holding interests in
pass-through entities as a nominee for another Person.)
5 The Transferee has reviewed the provisions of Section 4.02(d) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 4.02(d) of the Agreement and the restrictions noted
on the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the Transfer
to the Transferee contemplated hereby null and void.
6 The Transferee agrees to require a Transfer Affidavit from any Person to
whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7 The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the
Certificate.
8 The Transferee's taxpayer identification number is . ------------
9 The Transferee is a U.S. Person as defined in Code Section 7701(a)(30).
10 The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
11 The Transferee anticipates that it will, so long as it holds the Class
A-R Certificates, have sufficient assets to pay any taxes owed by the holder of
such Class A-R Certificates, and hereby represents to and for the benefit of
the person from whom it acquired the Class A-R Certificates that the Transferee
intends to pay taxes associated with holding such Class A-R Certificates as
they become due, fully understanding that it may incur tax liabilities in
excess of any cash flows generated by the Class A-R Certificates. The
Transferee has provided financial statements or other financial information
requested by the Transferor in connection with the transfer of the Class A-R
Certificates to permit the Transferor to assess the financial capability of the
Transferee to pay such taxes.
F-2
12 Either (i) the Transferee is not an employee benefit plan subject to
Section 406 of ERISA or Section 4975 of the Code, nor a person acting on behalf
of any such plan or using the assets of such plan to effect such acquisition,
or, (ii) the source of funds for the purchase of such Class A-R Certificate is
an "insurance company general account" within the meaning of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60"), 60 Fed. Reg. 35925 (July 12,
1995), and the terms and conditions of Sections I and III of PTCE 95-60 are
applicable to the acquisition and holding of such Class A-R Certificate.
* * *
F-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this ___ day of _______________, 20__.
--------------------------------------
PRINT NAME OF TRANSFEREE
By:-----------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
----------------------------------
[Assistant] Secretary
Personally appeared before me the above-named ______________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the __________________ of the Transferee, and acknowledged that he executed
the same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this day of , 20 . ----- --------- --
---------------------------------
NOTARY PUBLIC
My Commission expires the
___ day of _______________, 20__
F-4
EXHIBIT 1
to EXHIBIT F
Certain Definitions
-------------------
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Code Section 521) which is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by
Code Section 511 on unrelated business taxable income) on any excess inclusions
(as defined in Code Section 860E(c)(1)) with respect to any Class A-R
Certificate, (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(c), (v) an "electing partnership" as defined in Code Section
775, (vi) a Person that is not a citizen or resident of the United States, a
corporation, partnership, or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, an estate or
trust whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
fiduciaries have the authority to control all substantial decisions of the
trust unless such Person has furnished the transferor and the Trustee with a
duly completed Internal Revenue Service Form W-8ECI or any applicable successor
form, and (vii) any other Person so designated by the Trustee based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Class A-R
Certificate to such Person may cause the Trust Fund to fail to qualify as a
REMIC at any time that certain Certificates are Outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in Code Section 7701 or successor provisions. A corporation will not be
treated as an instrumentality of the United States or of any State or political
subdivision thereof if all of its activities are subject to tax, and with the
exception of the FHLMC, a majority of its board or directors is not selected by
such governmental unit.
"Person": Any individual, corporation, partnership, joint venture, bank,
joint stock company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
1-F-1
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
1-F-2
EXHIBIT 2
to EXHIBIT F
Section 4.02(d) of the Agreement
--------------------------------
(d) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition
of such Ownership Interest to have agreed to be bound by the
following provisions, and the rights of each Person acquiring any
Ownership Interest in a Residual Certificate are expressly subject to
the following provisions:
Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in
its status as a Permitted Transferee.
No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and
the Trustee shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to
be delivered to the Trustee under subparagraph (b) above, the
Trustee shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in
the form attached hereto as Exhibit F.
Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer
Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest in a Residual Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with
any Transfer of a Residual Certificate and (C) not to Transfer
its Ownership Interest in a Residual Certificate or to cause the
Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is
not a Permitted Transferee.
Any attempted or purported Transfer of any Ownership Interest in
a Residual Certificate in violation of the provisions of this
Section 4.02(d) shall be absolutely null and void and shall vest
no rights in the purported Transferee. If any purported
transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 4.02(d), then the
last preceding Permitted Transferee shall be restored to all
rights as Holder thereof retroactive to the date of registration
of Transfer of such Residual Certificate. The Trustee shall be
under no liability to any Person for any registration of
Transfer of a Residual Certificate that is in fact not permitted
by Section 4.02(c) and this Section 4.02(d) or for making any
2-F-1
payments due on such Certificate to the Holder thereof or taking
any other action with respect to such Holder under the
provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit and
Transferor Certificate. The Trustee shall be entitled but not
obligated to recover from any Holder of a Residual Certificate
that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other
than a Permitted Transferee, all payments made on such Residual
Certificate at and after either such time. Any such payments so
recovered by the Trustee shall be paid and delivered by the
Trustee to the last preceding Permitted Transferee of such
Certificate.
The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of
the Code as a result of a Transfer of an Ownership Interest in a
Residual Certificate to any Holder who is not a Permitted
Transferee.
The restrictions on Transfers of a Residual Certificate set forth in this
Section 4.02(d) shall cease to apply (and the applicable portions of the legend
on a Residual Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of
Counsel shall not be an expense of the Trust Fund, the Trustee, the Underlying
Certificate Seller or the Depositor, to the effect that the elimination of such
restrictions will not cause each REMIC hereunder to fail to qualify as a REMIC
at any time that the Certificates are outstanding or result in the imposition
of any tax on the Trust Fund, a Certificateholder or another Person. Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
hereby consents to any amendment of this Agreement which, based on an Opinion
of Counsel furnished to the Trustee, is reasonably necessary (a) to ensure that
the record ownership of, or any beneficial interest in, a Residual Certificate
is not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
2-F-2
