EXHIBIT 99.5
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CWHEQ, INC.
Depositor
WILMINGTON TRUST COMPANY
Owner Trustee
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TRUST AGREEMENT
Dated as of August 24, 2005
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CWHEQ REVOLVING HOME EQUITY LOAN TRUST, SERIES 2005-E
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Table of Contents
Page
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ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.01. Definitions ............................................ 1
Section 1.02. Rules of Construction....................................3
ARTICLE II
ORGANIZATION
Section 2.01. Name ....................................................5
Section 2.02. Office ..................................................5
Section 2.03. Purposes and Powers .....................................5
Section 2.04. Appointment of Owner Trustee ............................6
Section 2.05. Initial Capital Contribution of Assets ..................6
Section 2.06. Declaration of Trust ....................................6
Section 2.07. Liability of the Transferor .............................6
Section 2.08. Title to Trust Property .................................6
Section 2.09. Location of Trust .......................................6
Section 2.10. Representations and Warranties of Depositor .............7
ARTICLE III
THE TRANSFEROR CERTIFICATES
Section 3.01. Initial Beneficiary of Trust ............................8
Section 3.02. Issuance of the Transferor Certificates .................8
Section 3.03. Authentication of Transferor Certificates ...............9
Section 3.04. Registration of and Transfer and Exchange of
Transferor Certificates .................................9
Section 3.05. Mutilated, Destroyed, Lost, or Stolen Transferor
Certificate ............................................10
Section 3.06. Maintenance of Office or Agency ........................10
Section 3.07. Persons Considered Certificateholders ..................10
Section 3.08. Access to List of Certificateholders' Names and
Addresses ..............................................11
Section 3.09. Appointment of Certificate Paying Agent ................11
Section 3.10. Restrictions on Transfer; Legends ......................11
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders Regarding
Certain Matters ........................................14
Section 4.02. Action by Certificateholders Regarding Certain Matters..15
Section 4.03. Action by Certificateholders Regarding Bankruptcy ......15
Section 4.04. Restrictions on Certificateholder's Power ..............15
Section 4.05. Majority Interest ......................................16
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Application of Trust Funds .............................16
Section 5.02 . Method of Payment ......................................16
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority ......................................17
Section 6.02. General Duties .........................................17
Section 6.03. Action on Instruction ..................................17
Section 6.04. No Duties Except as Specified in the Agreement or
in Instructions ........................................18
Section 6.05. No Action Except Under Specified Documents or
Instructions ...........................................19
Section 6.06. Restrictions ...........................................19
ARTICLE VII
CONCERNING OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties ........................19
Section 7.02. Furnishing Documents ...................................20
Section 7.03. Representations and Warranties .........................20
Section 7.04. Reliance; Advice of Counsel ............................21
Section 7.05. Not Acting in Individual Capacity ......................21
Section 7.06. Owner Trustee Not Liable for Transferor
Certificates or Payment Obligations ....................21
Section 7.07. Owner Trustee May Own Notes ............................22
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees ...................................22
Section 8.02. Reimbursement and Indemnification ......................22
Section 8.03. Payments to Owner Trustee ..............................23
ARTICLE IX
TERMINATION OF AGREEMENT
Section 9.01. Termination of Agreement ...............................24
Section 9.02. Credit Enhancer's Rights Regarding Actions,
Proceedings, or Investigations .........................24
Section 9.03. Rights of the Credit Enhancer ..........................26
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Resignation or Removal of Owner Trustee ................26
Section 10.02. Successor Owner Trustee ................................27
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Section 10.03. Merger or Consolidation of Owner Trustee ...............27
Section 10.04. Appointment of Co-Trustee or Separate Trustee ..........28
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments .............................29
Section 11.02. Limitations on Rights of Others ........................29
Section 11.03. Notices ................................................30
Section 11.04. Severability ...........................................31
Section 11.05. Separate Counterparts ..................................31
Section 11.06. Successors and Assigns .................................31
Section 11.07. Nonpetition Covenant ...................................31
Section 11.08. No Recourse ............................................31
Section 11.09. Headings ...............................................31
Section 11.10. GOVERNING LAW ..........................................31
Section 11.11. Rule 144A Information ..................................32
Section 11.12. Third-Party Beneficiary ................................32
EXHIBITS
EXHIBIT A Form of Certificate of Trust of Revolving
Home Equity Loan Trust, Series 2005-E..........................A-1
EXHIBIT B Form of Series 2005-E Transferor Certificates..................B-1
EXHIBIT C Form of Representation Letter..................................C-1
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This TRUST AGREEMENT, dated as of August 24, 2005, between CWHEQ, INC.,
a Delaware corporation, as Depositor, and WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as Owner Trustee,
WITNESSETH:
WHEREAS, the parties to this Agreement will create the CWHEQ Revolving
Home Equity Loan Trust, Series 2005-E and provide for, among other things, the
issuance of the Transferor Certificates;
NOW, THEREFORE, the parties to this Agreement agree as follows.
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.01. Definitions.
Unless the context requires a different meaning, capitalized terms are
used in this Agreement as defined below. Capitalized terms used in this
Agreement that are not otherwise defined have the meanings given to them in
the Indenture.
"Administration Agreement" means the Administration Agreement, dated as
of August 30, 2005, between the Administrator, the Indenture Trustee, and the
Trust.
"Administrator" means Countrywide Home Loans, Inc. and its permitted
successors and assigns.
"Agreement" means this trust agreement.
"Assets" means all assets and property of the Trust pursuant to the Sale
and Servicing Agreement.
"Certificate of Trust" means the Certificate of Trust in the form of
Exhibit A to be filed for the Trust pursuant to Section 3810(a) of the
Statutory Trust Statute.
"Certificateholder" means the registered holder of a Transferor
Certificate issued in connection with the creation of the Trust.
"Code" means the Internal Revenue Code of 1986.
"Closing Date" means August 30, 2005.
"Credit Enhancer" means MBIA Insurance Corporation and its permitted
successors and assigns.
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"ERISA" means the Employee Retirement Income Security Act of 1974.
"Indenture" means the indenture, dated as of August 30, 2005 entered
into between the Trust, and the Indenture Trustee, specifying the principal
terms pursuant to which the Notes are issued.
"Indenture Trustee" means JPMorgan Chase Bank, N.A. and its
permitted successors and assigns.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other), preference, participation
interest, priority, or other security agreement or preferential arrangement of
any kind or nature whatsoever resulting in an encumbrance against real or
personal property of a person, including any conditional sale or other title
retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and any evidence of any of the
foregoing.
"Mortgage Loan" has the meaning given to it in the Sale and Servicing
Agreement.
"Noteholder" means a holder of one or more Notes.
"Notes" means the notes issued by the Trust pursuant to the Indenture.
"Opinion of Counsel" means a written opinion of counsel acceptable to
the Owner Trustee and the counsel may be in-house counsel for the Depositor,
its Affiliates, or the Transferor, which opinion shall be addressed, in
addition to any other party specified in this Agreement, to the Credit
Enhancer.
"Rating Agency Condition" has the meaning given to it in the Indenture.
"Responsible Officer" means any officer in the corporate trust
department of the Owner Trustee, including any vice president, assistant vice
president, managing director, treasurer, assistant treasurer, trust officer,
or any other officer of the Owner Trustee who customarily performs functions
similar to those performed by the persons who at the time are those officers,
or to whom any corporate trust matter is referred because of the officer's
knowledge of and familiarity with the particular subject and who has direct
responsibility for the administration of this Agreement or the Indenture.
"Sale and Servicing Agreement" means the sale and servicing agreement,
dated as of August 30, 2005, entered into between the Depositor, Countrywide
Home Loans, Inc., as sponsor and master servicer, the Trust and the Indenture
Trustee, pursuant to which, among other things, the Depositor transfers all
its interests in the Mortgage Loans to the Trust.
"Statutory Trust Statute" means the Delaware Statutory Trust
Act (12 Del. Code, ss. 3801 et seq.).
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"Transaction Documents" means collectively the Indenture and any other
document designated in the Indenture as a "Transaction Document" for the
purposes of this Agreement.
"Transferor" means the holder of a Transferor Certificate of the Trust.
"Transferor Certificate" means the certificate representing the interest
in the Trust that is the right to receive any amounts available for
distribution that are not allocable to the Notes and that is executed and
authenticated in accordance with this Agreement substantially in the form
attached to this Agreement as Exhibit B.
"Transferor Certificate Register" means the register maintained by the
Indenture Trustee pursuant to Section 3.04.
"Trust" means the trust formed pursuant to this Agreement.
Section 1.02. Rules of Construction.
Except as otherwise expressly provided in this Agreement or unless the
context clearly requires otherwise:
(a) Defined terms include, as appropriate, all genders and the plural as
well as the singular.
(b) References to designated articles, sections, subsections, exhibits,
and other subdivisions of this Agreement, such as "Section 6.12 (a)," refer to
the designated article, section, subsection, exhibit, or other subdivision of
this Agreement as a whole and to all subdivisions of the designated article,
section, subsection, exhibit, or other subdivision. The exhibits and other
attachments to this Agreement are a part of this Agreement. The words
"herein," "hereof," "hereto," "hereunder," and other words of similar import
refer to this Agreement as a whole and not to any particular article, section,
exhibit, or other subdivision of this Agreement.
(c) The recitals located before Article I are not a part of the
agreement of the parties. Whether or not they are correct, the recitals shall
not affect the agreement of the parties or the interpretation of this
Agreement, and they shall not be interpreted as representations, warranties,
covenants, or any other matter of substance. The headings of the various
Articles and Sections in this Agreement are for convenience of reference only
and shall not define or limit any of the provisions of this Agreement.
(d) Any term that relates to a document or a statute, rule, or
regulation includes any amendments, modifications, supplements, or any other
changes that may have occurred since the document, statute, rule, or
regulation came into being, including changes that occur after the date of
this Agreement. References to law are not limited to statutes. References to
statutes include any rules or regulations promulgated under them by a
governmental authority charged with the administration of the statute. Any
reference to any person includes references to its successors and assigns.
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(e) Any party may execute any of the requirements under this Agreement
either directly or through others, and the right to cause something to be done
rather than doing it directly shall be implicit in every requirement under
this Agreement. Unless a provision is restricted as to time or limited as to
frequency, all provisions under this Agreement are implicitly available from
time to time.
(f) The term "including" and all its variations mean "including but not
limited to." Except when used in conjunction with the word "either," the word
"or" is always used inclusively (for example, the phrase "A or B" means "A or
B or both," not "either A or B but not both").
(g) A reference to "a [thing]" or "any [of a thing]" does not imply the
existence or occurrence of the thing referred to even though not followed by
"if any," and "any [of a thing]" is any and all of it. A reference to the
plural of anything as to which there could be either one or more than one does
not imply the existence of more than one (for instance, the phrase "the
obligors on a note" means "the obligor or obligors on a note"). "Until
[something occurs]" does not imply that it must occur, and will not be
modified by the word "unless." The word "due" and the word "payable" are each
used in the sense that the stated time for payment has passed. The word
"accrued" is used in its accounting sense, i.e., an amount paid is no longer
accrued. In the calculation of amounts of things, differences and sums may
generally result in negative numbers, but when the calculation of the excess
of one thing over another results in zero or a negative number, the
calculation is disregarded and an "excess" does not exist. Portions of things
may be expressed as fractions or percentages interchangeably. The word "shall"
is used in its imperative sense, as for instance meaning a party agrees to
something or something must occur or exist.
(h) All accounting terms used in an accounting context and not otherwise
defined, and accounting terms partly defined in this Agreement, to the extent
not completely defined, shall be construed in accordance with generally
accepted accounting principles in the United States. To the extent that the
definitions of accounting terms in this Agreement are inconsistent with their
meanings under generally accepted accounting principles, the definitions in
this Agreement shall control. Capitalized terms used in this Agreement without
definition that are defined in the Uniform Commercial Code of the relevant
jurisdiction are used in this Agreement as defined in that Uniform Commercial
Code.
(i) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the words "from" and "beginning"
mean "from and including," the word "after" means "from but excluding," the
words "to" and "until" mean "to but excluding," and the word "through" means
"to and including." Likewise, in setting deadlines or other periods, "by"
means "on or before." The words "preceding," "following," and words of similar
import, mean immediately preceding or following. References to a month or a
year refer to calendar months and calendar years.
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(j) Any reference to the enforceability of any agreement against a party
means that it is enforceable against the party in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, and other
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(k) Generally only the registered holder of a Security is recognized,
such as in Section 3.07. Persons Considered Owner and payment provisions.
However, for the purposes of the transfer restrictions and related provisions,
such as agreements, representations, and warranties by holders of Securities,
references to Securityholders, holders, and the like refer equally to
beneficial owners who have an interest in a Security but are not reflected in
the applicable register as the owner and references to transfers of Securities
include transfers of interests in a Security.
ARTICLE II
ORGANIZATION
Section 2.01. Name.
This Trust shall be known as "CWHEQ Revolving Home Equity Loan
Trust, Series 2005-E," in which name the Owner Trustee may issue
Notes and otherwise conduct the business of the Trust.
Section 2.02. Office.
The office of the Trust shall be in care of the Owner Trustee at "Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention:
Corporate Trust Administration" or at any other address in the State of
Delaware that the Owner Trustee may designate by notice to the Depositor.
Section 2.03. Purposes and Powers.
(a) The Trust is authorized to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture;
(ii) to issue the Transferor Certificates pursuant to this
Agreement;
(iii) to Grant the Assets to the Indenture Trustee pursuant to the
Indenture;
(iv) to distribute to the Transferor pursuant to this Agreement
and the Transaction Documents, any portion of the Assets released from
the Lien of the Indenture and any other amounts provided for in the Sale
and Servicing Agreement;
(v) to enter into and perform its obligations under the
Transaction Documents to which it becomes a party;
(vi) to engage in those activities, including entering into
agreements, that are appropriate to accomplish any of the foregoing or
are incidental to them; and
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(vii) subject to compliance with the Transaction Documents, to
engage in any other activities appropriate to conserve the Assets and
make distributions to any Transferor and the holders of Notes.
The Trust shall not engage in any activity other than in connection with
the foregoing activities or other than as required or authorized by this
Agreement or the other Transaction Documents.
Section 2.04. Appointment of Owner Trustee.
The Depositor appoints the Owner Trustee as trustee of the Trust
effective as of the date of this Agreement to have all the rights and
obligations in this Agreement.
Section 2.05. Initial Capital Contribution of Assets.
The Depositor hereby remits to the Owner Trustee the sum of $1. The
Owner Trustee hereby acknowledges receipt in trust from the Depositor of the
foregoing contribution. The Depositor shall pay organizational expenses of the
Trust as they may arise or shall promptly reimburse the Owner Trustee on
request for any such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust.
The Owner Trustee hereby declares that it will hold the Assets on the
terms of this Agreement, for the benefit of the Transferor, subject to the
obligations of the Trust under the Transaction Documents. The Trust is a
statutory trust under the Statutory Trust Statute and this Agreement is the
governing instrument of the statutory trust. The Owner Trustee shall have all
rights and obligations in this Agreement and in the Statutory Trust Statute
for accomplishing the purposes of the Trust. The Owner Trustee shall file with
the Secretary of State of the State of Delaware a Certificate of Trust of the
Trust.
Section 2.07. Liability of the Transferor.
Except to the extent otherwise provided in this Agreement or in the
other Transaction Documents, the Transferor shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the general corporation law of the
State of Delaware.
Section 2.08. Title to Trust Property.
Legal title to all the Assets shall be vested in the Trust as a separate
legal entity except where applicable law in any jurisdiction requires title to
any part of the Assets to be vested in a trustee, in which case title shall be
vested in the Owner Trustee or any co-trustee or separate trustee, as the case
may be.
Section 2.09. Location of Trust.
The Trust will be located in Delaware and administered in Delaware. Any
bank accounts maintained by the Owner Trustee on behalf of the Trust shall be
located in Delaware or Illinois. The Trust shall not have any employees in any
State other than Delaware. Nothing in this Agreement shall restrict the Owner
Trustee from having employees within or without
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Delaware. Payments will be received by the Trust only in Delaware, Illinois,
or California, and payments will be made by the Trust only from Delaware or
Illinois.
Section 2.10. Representations and Warranties of Depositor.
The Depositor represents and warrants to the Owner Trustee as of the
date of this Agreement, and as to any Transaction Document, as of its date
that:
(a) Organization and Good Standing. The Depositor is a corporation duly
organized and validly existing under the laws of Delaware, with full power and
authority to own its properties and to conduct its business as presently owned
or conducted and to execute, deliver, and perform this Agreement and any other
document related to this Agreement to which it is a party and to perform its
obligations as contemplated by them.
(b) Due Qualification. The Depositor is duly qualified to do business as
a Delaware corporation in good standing and has obtained all necessary
licenses and approvals in each jurisdiction in which failure to so qualify or
to obtain required licenses or approvals would have a material adverse effect
on its ability to perform its obligations under this Agreement and the
Transaction Documents to which the Depositor is a party.
(c) Due Authorization; Enforceability. The Depositor has full power and
authority to execute, deliver, and perform this Agreement and the Transaction
Documents to which it is a party and to carry out their respective terms. The
Depositor has full power and authority to sell and assign the Assets. The
execution, delivery, and performance by the Depositor of this Agreement and
the Transaction Documents to which the Depositor is a party have been duly
authorized by the Depositor by all necessary action. This Agreement and the
Transaction Documents executed by the Depositor have been duly executed and
delivered and constitute the valid and legally binding obligations of the
Depositor enforceable against the Depositor in accordance with their terms.
(d) No Conflict. The Depositor's execution and delivery of this
Agreement and the Transaction Documents to which the Depositor is a party,
performance of the transactions contemplated by them, and fulfillment of their
terms applicable to the Depositor do not conflict with any requirements of law
applicable to the Depositor or conflict with, result in any breach of any of
the provisions of, or with or without notice or lapse of time constitute a
default under, any indenture, contract, or other instrument to which the
Depositor is a party or by which it or its properties are bound.
(e) Consents. No authorization, consent, license, order, or approval of
or registration or declaration with, any governmental authority is required to
be obtained, effected, or given by the Depositor in connection with the
execution and delivery of this Agreement or the Transaction Documents by the
Depositor or its performance of its obligations under any of them or the
transactions contemplated by any of them, or the transfer of the Assets to the
Trust.
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(f) Litigation. No actions, proceedings, or investigations are pending
or, to the best of the Depositor's knowledge, threatened against the Depositor
before any governmental authority having jurisdiction over the Depositor
(i) asserting the invalidity of this Agreement or any other
Transaction Documents to which the Depositor is a party,
(ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any other Transaction
Documents to which the Depositor is a party,
(iii) seeking any determination that might materially and
adversely affect the performance by the Depositor of its obligations
under, or the validity or enforceability of, this Agreement or any other
Transaction Documents to which the Depositor is a party, or
(iv) seeking to affect adversely the income tax attributes of the
Trust under the United States federal or New York State or Delaware
income tax law.
ARTICLE III
THE TRANSFEROR CERTIFICATES
Section 3.01. Initial Beneficiary of Trust.
Upon the formation of the Trust by the contribution by the Depositor
pursuant to Section 2.05 and until the issuance of the Transferor
Certificates, the Depositor shall be the sole beneficiary of the Trust.
Section 3.02. Issuance of the Transferor Certificates.
(a) On the Closing Date, the Trust will issue one class of Certificates
designated as the "Revolving Home Equity Loan Asset Backed Transferor
Certificates, Series 2005-E" (the "Transferor Certificates") pursuant to the
provisions of this Agreement and deliver them to the order of the Depositor
when authenticated.
(b) The Transferor Certificates will be issued in definitive, fully
registered form and will be substantially in the form of Exhibit B. The
Transferor Certificates will, on the Closing Date, be executed, authenticated,
and delivered by the Owner Trustee to the order of the Depositor concurrently
with the transfer of the Mortgage Loans to the Trust.
(c) The Transferor Certificates will be executed by manual or facsimile
signature on behalf of the Owner Trustee by an authorized officer. Transferor
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time their signatures were affixed, authorized to sign on behalf
of the Owner Trustee shall bind the Trust, notwithstanding that any of them
have ceased to be so authorized before the authentication and delivery of the
Transferor Certificates or did not hold such offices at the date of the
Transferor Certificate. The Transferor Certificates will not be book-entry
certificates.
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Section 3.03. Authentication of Transferor Certificates.
No Transferor Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless the Transferor Certificate is
manually authenticated by the Owner Trustee substantially in the form provided
in this Agreement, and the authentication on any Transferor Certificate will
be conclusive evidence, and the only evidence, that the Transferor Certificate
has been duly authenticated and delivered. All Transferor Certificates shall
be dated the date of their authentication.
The Trust initially appoints the Indenture Trustee to act as the
authentication agent of the Owner Trustee. All references to the
authentication of the Transferor Certificates shall be considered to include
the authentication agent.
Section 3.04. Registration of and Transfer and Exchange of Transferor
Certificates.
The Trust shall keep a Transferor certificate register (the "Certificate
Register") in which, subject to any reasonable regulations it may prescribe,
the Trust shall provide for the registration of the Transferor Certificates
and, to the extent permitted by this Agreement, of transfers and exchanges of
the Transferor Certificates. The certificate registrar (the "Certificate
Registrar") is initially the Indenture Trustee.
Whenever any Transferor Certificate is surrendered for registration of
transfer at the office or agency of the Certificate Registrar maintained for
that purpose and the conditions of this Section have been satisfied, the Owner
Trustee, on behalf of the Trust, shall execute, authenticate, and deliver in
the name of the designated transferees, one or more new Transferor
Certificates in authorized denominations of a like aggregate amount dated the
date of authentication by the Owner Trustee or any authenticating agent.
At the option of its Holder, each Transferor Certificate may be
exchanged for other Transferor Certificates, in authorized denominations of a
like aggregate amount, by surrendering the Transferor Certificate to be
exchanged at the office or agency of the Certificate Registrar maintained for
that purpose.
Every Transferor Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a fully completed
representation letter, substantially in the form of Exhibit C, delivered at
the expense of the Certificateholder, and duly executed by the
Certificateholder or an attorney-in-fact for the Certificateholder duly
authorized in writing. Each Holder of a Transferor Certificate must satisfy
the transfer restrictions in the representation letter. Each Transferor
Certificate surrendered for registration of transfer or exchange shall be
cancelled and subsequently disposed of by the Owner Trustee in accordance with
its customary practice.
No service charge shall be made for the registration of transfer or
exchange of any Transferor Certificate, but the Owner Trustee or the
Certificate Registrar may require payment
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of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of the Transferor
Certificate.
The preceding provisions of this Section notwithstanding, the Owner
Trustee need not transfer or exchange, and the Certificate Registrar need not
register transfers or exchanges, of Transferor Certificates during the fifteen
days preceding the due date for any payment on the Transferor Certificates.
The Certificate Registrar shall at all times maintain an office or
agency where Transferor Certificates may be surrendered for registration of
transfer or exchange.
Section 3.05. Mutilated, Destroyed, Lost, or Stolen Transferor
Certificate.
If (a) the Owner Trustee receives evidence to its satisfaction of the
destruction, loss, or theft of a Transferor Certificate and the Owner Trustee
receives the security or indemnity it requires to hold it harmless or (b) any
mutilated Transferor Certificate is surrendered to the Owner Trustee, then in
the absence of notice that the Transferor Certificate has been acquired by a
Protected Purchaser, the Owner Trustee shall execute, authenticate, and
deliver, in exchange for or in lieu of the mutilated, destroyed, lost, or
stolen Transferor Certificate, a new Transferor Certificate of like tenor and
denomination. The Owner Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed on the issuance
of the new Transferor Certificate under this Section. Any duplicate Transferor
Certificate issued pursuant to this Section shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not
the lost, stolen, or destroyed Transferor Certificate is found.
Section 3.06. Maintenance of Office or Agency.
The Trust shall maintain an office or agency where notices and demands
on the Trust regarding the Transferor Certificates and the Transaction
Documents may be served. The Trust initially designates Indenture Trustee as
its office for those purposes. The Owner Trustee shall give prompt written
notice to the Certificateholders of the location, and any change in the
location, of this office or agency. If the Trust ever fails to maintain this
office or agency, then presentations, surrenders, notices, and demands may be
made or served at the Corporate Trust Office of the Owner Trustee.
Section 3.07. Persons Considered Certificateholders.
Before due presentation of a Transferor Certificate for registration of
transfer, the Owner Trustee, the Certificate Registrar, and any paying agent
for the Transferor Certificates shall treat the person in whose name any
Transferor Certificate is registered in the Certificate Register as the owner
of the Transferor Certificate for the purpose of receiving distributions
pursuant to Section 5.02 and for all other purposes whatsoever, and none of
the Owner Trustee, the Certificate Registrar, and any paying agent for the
Transferor Certificates shall be bound by any notice to the contrary.
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Section 3.08. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish to the Depositor or the Owner
Trustee a list of the names and addresses of the Transferor Certificateholders
as of the most recent Record Date within fifteen days after receipt by the
Certificate Registrar of a written request for it from the Depositor or the
Owner Trustee.
Section 3.09. Appointment of Certificate Paying Agent.
The paying agent for the Transferor Certificates shall make
distributions to the holder of each Transferor Certificate pursuant to this
Agreement and shall report the amounts of those distributions to the Owner
Trustee. The Administrator, on behalf of the Trust, may remove the Certificate
Paying Agent if the Administrator determines in its sole discretion that the
Certificate Paying Agent has failed to perform its obligations under this
Agreement in any material respect. The Certificate Paying Agent initially
shall be the Indenture Trustee. The Certificate Paying Agent shall be
permitted to resign as Certificate Paying Agent on thirty days' written notice
to the Owner Trustee. If the Indenture Trustee is no longer the Certificate
Paying Agent, the Administrator shall appoint a bank or trust company as
successor to act as Certificate Paying Agent. The Administrator shall cause
the successor Certificate Paying Agent or any additional Certificate Paying
Agent appointed by the Administrator to execute and deliver to the Trust an
instrument in which the successor Certificate Paying Agent or additional
Certificate Paying Agent agrees with the Trust that, as Certificate Paying
Agent, the successor Certificate Paying Agent or additional Certificate Paying
Agent will hold any sums held by it for payment to the Certificateholders in
trust for the benefit of the Certificateholders entitled to them until those
sums are paid to the appropriate Certificateholders. The Certificate Paying
Agent shall return all unclaimed funds to the Trust, and upon removal of a
Certificate Paying Agent, the Certificate Paying Agent shall also return all
funds in its possession to the Trust. Any reference in this Agreement to the
Certificate Paying Agent shall include any co-Certificate Paying Agent unless
the context requires otherwise.
Section 3.10. Restrictions on Transfer; Legends.
(a) The Transferor Certificates shall be assigned, transferred,
exchanged, pledged, financed, hypothecated, or otherwise conveyed
(collectively, for purposes of this Section and any other Section referring to
the Transferor Certificates, "transferred" or a "transfer") only in accordance
with this Section.
(b) No transfer of a Transferor Certificate will be made unless the
transfer is exempt from the registration requirements of the Securities Act of
1933 (the "Act") and any applicable state securities laws or is made in
accordance with the Act and those laws. Except for the initial issuance of a
Transferor Certificate to the Transferor (and any subsequent transfer by that
Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to
and in form and substance satisfactory to the Owner Trustee certifying
to the Owner Trustee the facts surrounding the transfer, which
investment letter shall not be an expense of the Owner Trustee or
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(ii) an Opinion of Counsel acceptable to and in form and substance
satisfactory to the Owner Trustee and the Depositor that the transfer
may be made pursuant to an exemption from the Act, describing the
applicable exemption and its basis, or is being made pursuant to the
Act, which Opinion of Counsel shall not be an expense of the Owner
Trustee or the Depositor.
The holder of a Transferor Certificate desiring to effect a transfer
shall indemnify the Trust against any liability that may result if the
transfer is not so exempt or is not made in accordance with any federal and
state laws.
(c) No transfer of an interest in a Transferor Certificate will be made
unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor,
acceptable to and in form and substance satisfactory to the Owner
Trustee, to the effect that the proposed Transferor is not an employee
benefit plan subject to Section 406 of ERISA or a plan subject to
Section 4975 of the Code, or a person acting on behalf of, or investing
plan assets of, any such plan, which representation letter shall not be
an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the
effect that the purchase or holding of the Transferor Certificate will
not result in a non-exempt prohibited transaction under ERISA or Section
4975 of the Code and will not subject the Owner Trustee to any
obligation in addition to those undertaken in this Agreement, which
Opinion of Counsel shall not be an expense of the Owner Trustee or the
Depositor;
except that, in the case of the initial issuance of a Transferor Certificate
to the Transferor (and any subsequent transfer by the Transferor to one of its
Affiliates), the representation in clause shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its
initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the
laws of the United States or any State and expressly assumes the
performance of every obligation of the existing Transferor under this
Agreement and the other Transaction Documents pursuant to an agreement
acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an
Officer's Certificate stating that the transfer complies with this
Section 3.10 and that all the conditions in this Section 3.10 have been
complied with, and an Opinion of Counsel stating that all the conditions
in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the
transfer;
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(iv) the proposed Transferor delivers to the Owner Trustee an
Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the
characterization of the Notes after the transfer as debt for
federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject
to tax at the entity level for federal or applicable State tax
purposes,
(C) the transfer will not have any material adverse effect
on the federal or applicable State income taxation of any Holder
of the Notes or any person who is the beneficial owner of a
book-entry Note, and
(D) the transfer will not result in the Trust being
characterized as a taxable mortgage pool as defined in Section
7701(i) of the Code; and
(v) all filings and other actions necessary to continue the
perfection of the interest of the Trust in the Mortgage Loans and the
other Assets has been taken or made.
The requirement that the proposed Transferor be organized and existing
under the laws of the United States or any State shall not apply if the Rating
Agency Condition (without regard to the Policy, as defined in the Indenture)
has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the
following form:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO THE SECURITIES ACT
OF 1933 AND THE SECURITIES LAWS OF ANY STATE OR IS SOLD OR TRANSFERRED IN
TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933 AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
SECTION 3.10 OF THE TRUST AGREEMENT RELATED TO CWHEQ REVOLVING HOME EQUITY
LOAN TRUST, SERIES 2005-E. NEITHER THIS CERTIFICATE NOR ANY INTEREST IN IT MAY
BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT THE TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED, A PLAN SUBJECT TO SECTION 4975 OF THE CODE, AS AMENDED, OR A
PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN; OR AN OPINION
OF COUNSEL IN ACCORDANCE WITH SECTION 3.10(C) OF THE TRUST AGREEMENT RELATED
TO CWHEQ REVOLVING HOME EQUITY LOAN TRUST, SERIES 2005-E. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS
CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO
THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID.
(f) No Transferor Certificate shall be transferred except to (i) the
Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate
of any of them) or (ii) a qualified
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institutional buyer (as defined in Rule 144A under the Securities Act). Each
person (other than the Master Servicer, the Transferor, or the Trust (or an
affiliate of them)) to whom a Transferor Certificate is proposed to be
transferred will be required to certify to the Transferor, the Trust, and the
Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the
Depositor, without the consent of any Noteholder or Certificateholder, may
amend this Section 3.10 with the consent of the Credit Enhancer if it receives
an Opinion of Counsel to the effect that the amendment will not adversely
affect in any material respect
(i) the tax characterization of the outstanding Notes and
Transferor Certificates for federal or applicable state income tax
purposes,
(ii) the characterization of the Trust as an entity that is not a
publicly traded partnership or other business entity taxable as a
corporation for United States federal income tax purposes and will not
result in a United States federal withholding tax being imposed on the
Trust, or
(iii) the Trust's exemptions from any registration requirement of
the federal securities laws.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders Regarding Certain
Matters.
(a) The Owner Trustee shall give the Certificateholders thirty days'
written notice before taking any of the following actions on behalf of the
Trust. Within thirty days of the date of the notice the Certificateholders may
instruct the Owner Trustee in writing not to take the proposed action or may
provide alternative direction. Thirty days after giving the notice, if the
Owner Trustee has not been instructed otherwise by a majority in interest of
the holders of the Transferor Certificates, then the Owner Trustee may:
(i) initiate any claim or lawsuit by the Trust, or compromise any
action, claim, or lawsuit brought by or against the Trust;
(ii) file an amendment to the Certificate of Trust;
(iii) amend the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(iv) amend the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required, but
the amendment materially adversely affects the interests of the
Certificateholders;
(v) amend the Administration Agreement; and
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(vi) appoint a successor Certificate Paying Agent, Certificate
Registrar, Administrator, or Indenture Trustee under the Indenture, or
consent to the assignment by the Transfer Agent and Registrar,
Administrator, or Indenture Trustee of its obligations under the
Indenture.
If the Trust has more than one holder of its Transferor Certificates,
then the Holders may only give instructions that are agreed to by the majority
of the Holders (based on the holders' percentage ownership of the entire
Transferor Certificate Interest).
(b) Notwithstanding Section 4.01(a), without prior notice to the
Certificateholders the Owner Trustee may, on behalf of the Trust:
(i) initiate a claim or lawsuit by the Trust for collection of
Assets;
(ii) file an amendment to the Certificate of Trust whenever the
amendment is required by the Statutory Trust Statute; or
(iii) amend the Administration Agreement to cure any ambiguity or
mistake or effect any other amendment that would not materially
adversely affect the interests of the Certificateholders.
The foregoing provisions of this Section 4.01 do not create a duty on
the part of the Owner Trustee to take any of the actions described above.
Section 4.02. Action by Certificateholders Regarding Certain Matters.
Except when directed by the Certificateholders and with the prior
written consent of the Credit Enhancer in the case of (a), (b), or (c) below,
the Owner Trustee may not (a) remove the Administrator pursuant to Section
7(c) of the Administration Agreement, (b) appoint a successor Administrator
pursuant to Section 7(e) of the Administration Agreement, (c) remove the
Master Servicer under the Sale and Servicing Agreement, or (d) except as
expressly provided in the Indenture, sell Assets after the termination of the
Indenture.
Section 4.03. Action by Certificateholders Regarding Bankruptcy.
Except upon delivery to the Owner Trustee by each Certificateholder of a
certificate certifying that the Certificateholder reasonably believes that the
Trust is insolvent, the Owner Trustee may not commence a voluntary proceeding
in bankruptcy relating to the Trust.
Section 4.04. Restrictions on Certificateholder's Power.
A Certificateholder shall not direct the Owner Trustee to take or to
refrain from taking any action if that action or inaction would be contrary to
any obligation of the Trust, or the Owner Trustee under this Agreement or any
of the other Transaction Documents or would be contrary to Section 2.03. The
Owner Trustee shall not be obligated to follow that direction if given.
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Section 4.05. Majority Interest.
Except as expressly provided in this Agreement, any action that may be
taken by the Certificateholders under this Agreement shall be taken by
Certificateholders by a majority of the holders voting per capita.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Application of Trust Funds.
(a) On each Distribution Date, the Certificate Paying Agent shall
distribute to the Transferor Certificateholders pro rata (based on each
holder's percentage ownership of the entire Transferor Certificate interest)
any funds made available to it under Section 8.03 of the Indenture.
Distributions to each Transferor Certificateholder shall be made by wire
transfer of immediately available funds to the Transferor Certificateholder's
account at a bank or other entity having appropriate facilities. If
appropriate notice of wiring instructions is not given by any Transferor
Certificateholder, then distribution to that Transferor Certificateholder
shall be by check mailed to the Transferor Certificateholder at its address as
it appears on the Certificate Register.
(b) If any withholding tax is imposed on the Trust's payment (or
allocations of income) to the Certificateholders, the withholding tax shall
reduce the amount otherwise distributable to the Certificateholders in
accordance with this Section. The Certificate Paying Agent is authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Trust. This authorization shall not prevent the Certificate Paying
Agent from contesting any tax in appropriate proceedings and withholding
payment of the tax pending the outcome of the proceedings if permitted by law.
The amount of any withholding tax imposed on any distributions shall be
treated as cash distributed to the Certificateholder at the time it is
withheld by the Trust and remitted to the appropriate taxing authority. If
withholding tax might be payable on a distribution to a non-U.S.
Certificateholder, the Certificate Paying Agent may in its sole discretion
withhold an appropriate amount to cover that possibility.
Section 5.02. Method of Payment.
Distributions required to be made to a Certificateholder on any Payment
Date shall be made by wire transfer of immediately available funds to the
account of the Certificateholder at a bank or other entity having appropriate
facilities if the Certificateholder so notifies the Certificate Registrar in
writing at least five Business Days before the Payment Date. If appropriate
notice is not given by a Certificateholder, then distributions to that
Certificateholder shall be by check mailed to it at its address in the
Certificate Register.
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ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority.
The Owner Trustee is authorized and directed to execute and deliver the
Transaction Documents to which the Trust is to be a party and each other
document contemplated by the Transaction Documents in such form as the
Depositor shall approve, as evidenced conclusively by the Owner Trustee's
execution of it. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions permitted or
required of the Trust pursuant to the Transaction Documents. The Owner Trustee
is further authorized to take any action the Administrator recommends
regarding the Transaction Documents.
Section 6.02. General Duties.
The Owner Trustee shall discharge all of its responsibilities pursuant
to this Agreement and the other Transaction Documents to which the Trust is a
party and administer the Trust in the interest of the Certificateholders,
subject to this Agreement and the other Transaction Documents. The Owner
Trustee shall be considered to have discharged its obligations under this
Agreement and the other Transaction Documents to the extent the Administrator
has agreed in the Administration Agreement to perform any act or to discharge
any duty of the Owner Trustee or the Trust under this Agreement or any other
Transaction Document. The Owner Trustee shall not be liable for the failure of
the Administrator to carry out its obligations under the Administration
Agreement or the other Transaction Documents.
The Administrator shall prepare and file any federal, state, or local
income and franchise tax return for the Trust as well as any other applicable
return and apply for a taxpayer identification number on behalf of the Trust.
If the Trust is required pursuant to an audit or administrative proceeding or
change in applicable regulations to file federal, state, or local tax returns,
the Administrator shall prepare and file any tax returns required to be filed
by the Trust. The Owner Trustee shall promptly sign the returns and deliver
the returns after signature to the Administrator and the returns shall be
filed by the Administrator.
Section 6.03. Action on Instruction.
(a) Subject to Article IV and in accordance with the Transaction
Documents, the Certificateholders may by written instruction direct the Owner
Trustee in the management of the Trust. Such direction may be exercised at any
time by written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee is not required to take any action under this
Agreement or any other Transaction Document if the Owner Trustee reasonably
determines, or is advised by counsel, that the action (i) is likely to result
in liability on the part of the Owner Trustee, (ii) is contrary to the terms
of this Agreement or of any other Transaction Document, or (iii) is contrary
to law.
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(c) Whenever the Owner Trustee is (i) unable to decide between
alternative courses of action under this Agreement or any other Transaction
Document, (ii) unsure about the application of any provision of this Agreement
or any other Transaction Document or it appears to be in conflict with any
other applicable provision, or (iii) if this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete about the
course of action that the Owner Trustee is required to take regarding a
particular set of facts, the Owner Trustee may give appropriate notice to the
Certificateholders requesting instruction and, if the Owner Trustee in good
faith follows any instructions it receives, the Owner Trustee shall not be
liable to the Certificateholders on account of its action or inaction. If the
Owner Trustee has not received appropriate instruction within ten days of the
notice (or within any shorter period necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking any action not
inconsistent with this Agreement or the other Transaction Documents that it
deems to be in the best interests of the Certificateholders, and shall have no
liability to the Certificateholders for its action or inaction.
(d) The Owner Trustee may enter into any amendment of any Transaction
Document as to which the Rating Agency Condition is satisfied (without regard
to the Policy, as defined in the Indenture), and when so requested by the
Certificateholders, the Owner Trustee shall enter into any amendment of any
Transaction Documents:
(i) that does not impose further obligations or liabilities on the
Owner Trustee,
(ii) that the Credit Enhancer has consented to, and
(iii) as to which either the Rating Agency Condition is satisfied
or Holders of not less than 66(2)/3% of the aggregate Outstanding Amount
of the Notes have consented.
Section 6.04. No Duties Except as Specified in the Agreement or in
Instructions.
The Owner Trustee shall not have any duty to manage, make any payment
on, register, record, sell, dispose of, or otherwise deal with any Assets, or
to otherwise take or refrain from taking any action under any document
contemplated by this Agreement or any other Transaction Document to which the
Trust is a party, except as expressly provided by this Agreement or in any
written instruction received by the Owner Trustee under Section 6.03. No
implied duties or obligations shall be read into this Agreement or any other
Transaction Document against the Owner Trustee. The Owner Trustee shall have
no responsibility for filing any Financing or Continuation Statement in any
public office at any time or otherwise to perfect or maintain the perfection
of any security interest or lien granted to it under the Sale and Servicing
Agreement or to prepare or file any filing with the Securities and Exchange
Commission for the Trust or to record this Agreement or any other Transaction
Document. Wilmington Trust Company, in its individual capacity, shall, at its
own cost and expense, promptly take all action necessary to discharge any
liens on any part of any Assets resulting from actions by, or claims against,
Wilmington Trust Company, in its individual capacity, that are not related to
the ownership or the administration of the Assets.
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Section 6.05. No Action Except Under Specified Documents or
Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of, or
otherwise deal with any part of any Assets, except as provided in this
Agreement, pursuant to the other relevant Transaction Documents, and in
accordance with any instruction delivered to the Owner Trustee pursuant to
Section 6.03.
Section 6.06. Restrictions.
The Owner Trustee shall not take any action that is inconsistent with
the stated purposes of the Trust in Section 2.03. The Certificateholders, by
their acceptance of their Transferor Certificates, agree not to direct the
Owner Trustee to take action that would violate the Agreement or any other
Transaction Document.
ARTICLE VII
CONCERNING OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties.
The Owner Trustee accepts the trusts created by this Agreement and
agrees to perform its duties under it. The Owner Trustee also agrees to
disburse all moneys actually received by it constituting part of any Assets on
the terms of the Transaction Documents. The Owner Trustee shall not be
accountable under this Agreement or any other Transaction Document under any
circumstances except (i) for its own willful misconduct or gross negligence or
(ii) for the inaccuracy of any representation or warranty contained in Section
7.03. In particular, but not in limitation (and subject to the exceptions in
the preceding sentence):
(a) The Owner Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Owner Trustee.
(b) The Owner Trustee shall not be liable regarding any action taken or
omitted to be taken by it in accordance with instructions from the
Administrator or the Certificateholders.
(c) No provision of this Agreement or any other Transaction Document
shall require the Owner Trustee to expend or risk its funds or otherwise incur
any financial liability in the performance of any of its rights under this
Agreement or any other Transaction Document if the Owner Trustee has
reasonable grounds for believing that repayment of those funds or adequate
indemnity against the risk or liability is not reasonably assured to it.
(d) Under no circumstances shall the Owner Trustee be liable for
indebtedness under any of the Transaction Documents, including the principal
and interest on any of Notes.
(e) The Owner Trustee shall not be responsible for the validity or
sufficiency of this Agreement or for its due execution by the Depositor or for
the form, character, genuineness, sufficiency, value, or validity of any of
the Assets, or for the validity or sufficiency of the
19
Transaction Documents, other than the certificate of authentication on the
Transferor Certificates.
(f) The Owner Trustee shall not be liable to any Noteholder or
Certificateholder, other than as expressly provided for in this Agreement or
expressly agreed to in the other Transaction Documents.
(g) The Owner Trustee shall not be liable for the default or misconduct
of the Depositor, the Indenture Trustee, the Administrator, or the Master
Servicer under any of the Transaction Documents or otherwise. The Owner
Trustee shall have no duty to perform the obligations of the Trust or the
Owner Trustee or any other person under this Agreement or the other
Transaction Documents that are required to be performed by the Administrator
under the Administration Agreement, the Indenture Trustee under the Indenture,
the Master Servicer under the Sale and Servicing Agreement, or the Depositor
under the Sale and Servicing Agreement, or any other person under any other
Transaction Document.
(h) The Owner Trustee need not exercise any of the rights or powers
vested in it by this Agreement, or to institute, conduct, or defend any
litigation under this Agreement or any other Transaction Document or
otherwise, at the request, order, or direction of the Certificateholders,
unless one or more Certificateholders have offered to the Owner Trustee
security or indemnity satisfactory to it against the costs and liabilities
that may be incurred by the Owner Trustee thereby.
(i) The right of the Owner Trustee to perform any discretionary act in
this Agreement or in any other Transaction Document shall not be construed as
a duty, and the Owner Trustee shall not be answerable other than for its gross
negligence or willful misconduct in the performance of any discretionary act.
Section 7.02. Furnishing Documents.
The Owner Trustee shall furnish to the Certificateholders, promptly on
written request, copies of all reports, notices, requests, demands,
certificates, financial statements, and any other instruments furnished to the
Owner Trustee under the Transaction Documents.
Section 7.03. Representations and Warranties.
Wilmington Trust Company hereby represents and warrants to the Depositor
that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver, and perform its obligations
under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
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(c) Neither the execution and delivery by it of this Agreement, nor the
consummation by it of the transactions contemplated by this Agreement, nor
compliance by it with any of the provisions of this Agreement will contravene
any federal or Delaware law, governmental rule, or regulation governing the
banking or trust powers of the Owner Trustee, or any judgment or order binding
on it, or constitute a default under its charter documents or bylaws.
Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall not be liable to anyone in acting under this
Agreement on any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper believed
by it to be genuine or believed by it to be signed by the proper parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive
evidence that the resolution has been duly adopted and that it is in full
force and effect. As to any fact or matter the method of determination of
which is not specifically prescribed in this Agreement, the Owner Trustee may
for all purposes of this Agreement conclusively rely on a certificate, signed
by a Responsible Officer of the relevant party, as to the fact or matter, and
that certificate shall constitute full protection to the Owner Trustee for any
action taken or omitted to be taken by it in good faith in reliance on it.
(b) In the exercise or administration of the trusts under this Agreement
and in the performance of its obligations under this Agreement or the other
Transaction Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys under agreements entered into with any of them, and the
Owner Trustee shall not be liable for the conduct or misconduct of those
agents or attorneys if they were selected by the Owner Trustee with reasonable
care and (ii) may consult with counsel, accountants, and other skilled persons
it selects with reasonable care. The Owner Trustee shall not be liable for
anything done, suffered, or omitted in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants, or other persons.
Section 7.05. Not Acting in Individual Capacity.
Except as provided in this Article, (i) in acting in the capacity of
Owner Trustee pursuant to the trusts created by this Agreement, Wilmington
Trust Company acts solely as Owner Trustee under this Agreement and not in its
individual capacity, and (ii) all persons having any claim against the Owner
Trustee under this Agreement or any other Transaction Document shall look only
to the Assets for payment or satisfaction of that claim.
Section 7.06. Owner Trustee Not Liable for Transferor Certificates or
Payment Obligations.
The recitals contained in this Agreement and in the Transferor
Certificates (other than the signature and authentication of the Owner Trustee
on the Transferor Certificates) shall be taken as the statements of the
Depositor, and the Owner Trustee assumes no responsibility for their
correctness. The Owner Trustee makes no representations as to the validity or
sufficiency of this Agreement, of any other Transaction Document, of the
Transferor Certificates (other
21
than the signature and authentication of the Owner Trustee on the Transferor
Certificates), of any Mortgage Loan or related documents. The Owner Trustee
shall not have any responsibility for
(i) the legality, validity, and enforceability of any Mortgage
Loan, or
(ii) the perfection and priority of any security interest created
in any Mortgage Loan or the maintenance of that perfection and priority,
or
(iii) the sufficiency of the Assets or their ability to generate
the payments to be distributed under this Agreement or the Noteholders
under the Indenture, or
(iv) the performance or enforcement of any Mortgage Loan, or
(v) the compliance by the Depositor or the Master Servicer with
any warranty or representation made under any Transaction Document or in
any related document, or
(vi) any action of the Administrator, the Indenture Trustee, or
the Master Servicer or any subservicer taken in the name of the Owner
Trustee.
Section 7.07. Owner Trustee May Own Notes.
Wilmington Trust Company in its individual or any other capacity may
become the owner or pledgee of the Notes and may deal with the Depositor, the
Administrator, the Indenture Trustee, and the Servicer in banking transactions
with the same rights as it would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees.
The Owner Trustee shall receive, as compensation from the Sponsor for
its services under this Agreement, fees that have been separately agreed on in
a fee agreement between the Sponsor and the Owner Trustee.
Section 8.02. Reimbursement and Indemnification.
(a) The Owner Trustee shall be entitled to be reimbursed for its
reasonable expenses (including reasonable attorneys' fees) incurred in the
performance of its duties as Owner Trustee hereunder, first, out of amounts on
deposit in the Collection Account prior to payments on the Transferor
Certificates, second, to the extent not paid pursuant to clause first within
60 days of first being incurred, by the Transferor and third, to the extent
not paid pursuant to clause first and second within 60 days of first being
incurred, by Countrywide Home Loans, Inc., except, in both cases, to the
extent that such expenses arise out of or result from (i) the Owner Trustee's
own willful misconduct, bad faith or gross negligence, (ii) the inaccuracy of
any of the Owner Trustee's representations or warranties contained in Section
7.03 of this Agreement, (iii) taxes based on or measured by any fees,
commissions or compensation
22
received by the Owner Trustee for acting as such in connection with any of the
transactions contemplated by this Agreement or any other Transaction Document,
or (iv) the Owner Trustee's failure to use reasonable care to receive, manage
and disburse moneys actually received by it in accordance with the terms
hereof.
(b) The Owner Trustee is hereby indemnified and held harmless from and
against any and all liabilities, obligations, indemnity obligations, losses
(excluding loss of anticipated profits), damages, claims, actions, suits,
judgments, out-of-pocket costs, expenses and disbursements (including legal
and consultants' fees and expenses) and taxes of any kind and nature
whatsoever (collectively, the "Liabilities") which may be imposed on, incurred
by or asserted at any time against it in any way relating to or arising out of
the Trust Estate, any of the properties included therein, the administration
of the Trust Estate or any action or inaction of the Owner Trustee hereunder
or under the Transaction Documents, except to the extent that such Liabilities
arise out of or result from (i) the Owner Trustee's own willful misconduct,
bad faith or gross negligence, (ii) the inaccuracy of any of the Owner
Trustee's representations or warranties contained in Section 7.03 of this
Agreement, (iii) taxes based on or measured by any fees, commissions or
compensation received by the Owner Trustee for acting as such in connection
with any of the transactions contemplated by this Agreement or any other
Transaction Document, or (iv) the Owner Trustee's failure to use reasonable
care to receive, manage and disburse moneys actually received by it in
accordance with the terms hereof. Any amounts payable to the Owner Trustee on
account of the indemnities set forth in this Section 8.02 shall be payable,
first, out of amounts on deposit in the Collection Account prior to payments
on the Transferor Certificates, second, to the extent not paid pursuant to
clause first within 60 days of first being incurred, by the Transferor and
third, to the extent not paid pursuant to clause first and second within 60
days of first being incurred, by Countrywide Home Loans, Inc. The indemnities
contained in this Section 8.02 shall survive the termination of this Agreement
and the removal or resignation of the Owner Trustee hereunder.
Losses, claims, damages, liabilities, and expenses in any way
attributable to defaults on the Mortgage Loans are excluded from the coverage
of the provisions of this Section.
Section 8.03. Payments to Owner Trustee.
Any amounts paid to the Owner Trustee pursuant to this Article shall not
be a part of the Assets immediately after their payment. All amounts then due
to the Owner Trustee from the Trust, the Depositor, or the Master Servicer
under any Transaction Document shall be paid in full before any payments to
the Depositor or any holder of a Transferor Certificate.
23
ARTICLE IX
TERMINATION OF AGREEMENT
Section 9.01. Termination of Agreement.
(a) The Trust shall dissolve when the Trust has made the final
distribution of all moneys or other property or proceeds of all Assets in
accordance with the terms of the Transaction Documents, and Article V. The
bankruptcy, liquidation, or dissolution of any Certificateholder shall not (x)
terminate this Agreement or the Trust, (y) entitle that Certificateholder's
legal representatives to obtain an accounting or to take any action in any
court for a partition or winding up of any part of the Trust or the Assets, or
(z) otherwise affect the rights and obligations of the parties to this
Agreement.
(b) Except as provided in Section 9.01(a), neither the Depositor nor the
Certificateholders may dissolve, revoke, or terminate the Trust.
(c) On the winding up of the Trust and payment of all liabilities of the
Trust in accordance with Section 3808 of the Statutory Trust Statute, the
Owner Trustee shall cancel the Certificate of Trust by filing a certificate of
cancellation with the Secretary of State of the State of Delaware in
accordance with the provisions of the Statutory Trust Statute. The Owner
Trustee may rely on the directions of the Administrator with respect to
winding up the Trust. Thereupon, this Agreement (other than Article VIII) and
the Trust shall terminate.
Section 9.02. Credit Enhancer's Rights Regarding Actions, Proceedings,
or Investigations.
Until the Notes have been paid in full, all amounts owed to the Credit
Enhancer have been paid in full, the Insurance Agreement has terminated and
the Policy has been returned to the Credit Enhancer for cancellation, the
following provisions shall apply:
(a) Notwithstanding anything in this Agreement or in the other
Transaction Documents to the contrary, the Credit Enhancer shall have the
right to participate in, to direct the enforcement or defense of, and, at the
Credit Enhancer's sole option, to institute or assume the defense of, any
action, proceeding, or investigation (other than foreclosure proceedings
involving the Mortgage Loans and other actions constituting ordinary servicing
activities) that could adversely affect the Trust or the rights or obligations
of the Credit Enhancer under this Agreement or under the Policy, including any
insolvency or bankruptcy proceeding in respect of the Trust. Following notice
to the Owner Trustee and the Indenture Trustee, the Credit Enhancer shall have
exclusive right to determine, in its sole discretion, the actions necessary to
preserve and protect the Collateral, the Issuer, and the Trust. All costs and
expenses of the Credit Enhancer in connection with such action, proceeding, or
investigation, including any judgment or settlement entered into affecting the
Credit Enhancer or the Credit Enhancer's interests, shall be included in
reimbursement amount owed to the Credit Enhancer under Section 8.03(a)(ix) and
Section 8.03(a)(xi) of the Indenture.
24
(b) In connection with any action, proceeding, or investigation (other
than foreclosure proceedings involving the Mortgage Loans and other actions
constituting ordinary servicing activities) that could reasonably be expected
to adversely affect the Collateral, the Issuer, the Trust, or the rights or
obligations of the Credit Enhancer under this Agreement or under the Policy or
the Transaction Documents, including any insolvency or bankruptcy proceeding
in respect of the Master Servicer, the Sponsor, the Depositor, the Issuer, the
Trust, or any affiliate of any of them, the Owner Trustee agrees to cooperate
with, and to take any action directed by, the Credit Enhancer, including
entering into agreements and settlements as directed the Credit Enhancer, in
its sole discretion, without the consent of any Transferor Certificateholder
or any Noteholder.
(c) The Owner Trustee agrees to provide to the Credit Enhancer prompt
written notice of any action, proceeding, or investigation (other than
foreclosure proceedings involving the Mortgage Loans and other actions
constituting ordinary servicing activities) that names the Issuer, the Trust,
or the Owner Trustee as a party or that could adversely affect the Collateral,
the Issuer, the Trust, or the rights or obligations of the Credit Enhancer
under this Agreement or under the Policy or the Transaction Documents,
including any insolvency or bankruptcy proceeding in respect of the Master
Servicer, the Sponsor, the Depositor, the Issuer, the Trust, or any affiliate
of any of them.
(d) Notwithstanding anything in this Agreement or in any of the other
Transaction Documents to the contrary, the Owner Trustee shall not, without
the Credit Enhancer's prior consent or unless directed by the Credit Enhancer,
undertake or join any litigation or agree to any settlement of any action,
proceeding, or investigation affecting the Collateral, the Issuer, the Trust,
or the rights or obligations of the Credit Enhancer under this Agreement or
under the Policy or the Transaction Documents (other than foreclosure
proceedings involving the Mortgage Loans and other actions constituting
ordinary servicing activities).
(e) Each Transferor Certificateholder, by acceptance of its Transferor
Certificate, and the Owner Trustee agree that Credit Enhancer shall have the
rights provided in this Section, which are in addition to any rights of the
Credit Enhancer pursuant to the other provisions of the Transaction Documents,
that the rights provided in this Section may be exercised by the Credit
Enhancer, in its sole discretion, without the need for the consent or approval
of any Transferor Certificateholder or the Owner Trustee, notwithstanding any
other provision in this Agreement or in any of the other Transaction
Documents, and that nothing in this Section shall be deemed to be an
obligation of the Credit Enhancer to exercise any of the rights provided for
in this Agreement.
(f) The Owner Trustee undertakes to perform or observe only such of the
covenants and obligations of the Owner Trustee as are expressly set forth in
this Agreement, and no implied covenants or obligations with respect to the
Credit Enhancer shall be read into this Agreement or the other Transaction
Documents against the Owner Trustee. The Owner Trustee shall not be deemed to
owe any fiduciary duty to the Credit Enhancer, and shall not be liable in any
event to the Credit Enhancer as a result of the performance of its express
25
obligations under this Agreement. The Owner Trustee shall not be obligated to
take any action at the request or direction of the Credit Enhancer unless the
Owner Trustee is furnished with security or indemnification satisfactory to it
against any loss, liability, or expense in connection with the action.
Section 9.03. Rights of the Credit Enhancer.
(a) Before taking any of the actions specified in Section 4.01(a), the
Owner Trustee shall give the Credit Enhancer written notice at the same time
that notice is given to the Certificateholders.
(b) Before taking any of the actions specified in Section 4.01(b), the
Owner Trustee shall give the Credit Enhancer written notice of the proposed
action.
(c) Upon the occurrence of an event described in Section 6.03(c), the
Owner Trustee shall give the Credit Enhancer written notice at the same time
that notice is given to the Certificateholders.
(d) Any successor Owner Trustee appointed by the Administrator pursuant
to Section 10.01 shall be appointed only with the prior written consent of the
Credit Enhancer.
(e) The Owner Trustee shall mail notice of any merger or consolidation
or other action described in Section 10.03 to the Credit Enhancer.
(f) Any co-trustee or separate trustee appointed pursuant to Section
10.04 shall be appointed only with the prior written consent of the Credit
Enhancer.
(g) Promptly after the execution of any amendment or consent, the Owner
Trustee shall furnish a copy of the amendment or consent to the Credit
Enhancer.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Resignation or Removal of Owner Trustee.
The Owner Trustee may at any time resign and be discharged from the
trusts created by this Agreement by giving written notice of resignation to
the Administrator, and the Depositor. When it receives a notice of
resignation, the Administrator shall promptly appoint a successor Owner
Trustee in writing delivered to the resigning Owner Trustee and to the
successor Owner Trustee. If no successor Owner Trustee has been so appointed
and assumed trusteeship within thirty days after the notice of resignation,
the resigning Owner Trustee may petition any court of competent jurisdiction
for the appointment of a successor Owner Trustee.
The Administrator may remove the Owner Trustee if at any time the Owner
Trustee is legally unable to act, or an Insolvency Event occurs with respect
to the Owner Trustee. If the
26
Administrator removes the Owner Trustee under the authority of the preceding
sentence, the Administrator shall promptly appoint a successor Owner Trustee
in writing delivered to the outgoing Owner Trustee and to the successor Owner
Trustee, and shall pay all fees and expenses owed to the outgoing Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee shall not become effective until acceptance of the
appointment by the successor Owner Trustee pursuant to Section 10.02 and
payment of all fees and expenses of the outgoing Owner Trustee. The
Administrator shall provide notice of any resignation or removal of the Owner
Trustee to each of the Rating Agencies, the Depositor, and the Credit
Enhancer.
Section 10.02. Successor Owner Trustee.
Any successor Owner Trustee appointed pursuant to Section 10.01 shall
execute and deliver to the Administrator, the Depositor, and to the
predecessor Owner Trustee an instrument accepting appointment as trustee under
this Agreement, and thereupon the resignation or removal of the predecessor
Owner Trustee shall become effective. The successor Owner Trustee shall become
fully vested with all the rights and obligations of its predecessor under this
Agreement, with like effect as if originally named as Owner Trustee without
any further act, deed, or conveyance. The predecessor Owner Trustee shall
promptly deliver to the successor Owner Trustee all documents, statements, and
monies held by it under this Agreement. The Administrator and the predecessor
Owner Trustee shall execute and deliver any instruments and do anything else
for fully and certainly vesting and confirming in the successor Owner Trustee
all rights and obligations under this Agreement.
When a successor Owner Trustee accepts its appointment pursuant to this
Section, the Administrator shall mail notice of the change in trustee to the
Certificateholders, the Depositor, the Indenture Trustee, the Noteholders, the
Credit Enhancer, and the Rating Agencies. If the Administrator fails to mail
that notice within ten days after acceptance of appointment by the successor
Owner Trustee, the successor Owner Trustee shall mail that notice at the
expense of the Administrator.
The successor Owner Trustee shall file an amendment to the Certificate
of Trust with the Secretary of State of the State of Delaware identifying the
name and principal place of business in the State of Delaware of the successor
Owner Trustee.
Section 10.03. Merger or Consolidation of Owner Trustee.
Any person into which the Owner Trustee may be merged or converted or
with which it may be consolidated, or any person resulting from any merger,
conversion, or consolidation to which the Owner Trustee is a party, or any
person succeeding to all or substantially all of the corporate trust business
of the Owner Trustee, shall be the successor of the Owner Trustee under this
Agreement without the execution or filing of any instrument or any further act
on the part of any of the parties to this Agreement, anything to the contrary
notwithstanding. The Owner Trustee shall mail notice of the merger or
consolidation or other action to each Rating Agency and the Credit Enhancer.
27
Section 10.04. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Assets may at any time be located, the Administrator and the Owner
Trustee acting jointly shall execute and deliver all instruments to appoint
persons approved by the Administrator, and Owner Trustee to act as co-trustee,
jointly with the Owner Trustee, or as separate trustee, of all or any part of
the Assets, and to vest in that person, in that capacity, such title to the
Assets or any part thereof and, subject to the other provisions of this
Section, such rights and obligations as the Administrator and the Owner
Trustee consider appropriate. If the Administrator has not joined in the
appointment within fifteen days after the receipt by it of a request so to do,
the Owner Trustee alone may make the appointment. No notice of the appointment
of any co-trustee or separate trustee shall be required pursuant to Section
10.02.
Each separate trustee and co-trustee shall be appointed and act subject
to the following provisions and conditions:
(a) All rights and obligations conferred or imposed on the Owner Trustee
shall be conferred on and exercised or performed by the Owner Trustee and the
separate trustee or co-trustee jointly (the separate trustee or co-trustee is
not authorized to act separately without the Owner Trustee joining in the
act), except to the extent that under applicable law the Owner Trustee is
incompetent or unqualified to perform the acts, in which case those rights and
obligations (including the holding of title to the Assets or any portion of
them in that jurisdiction) shall be exercised and performed singly by the
separate trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(b) No trustee under this Agreement shall be personally liable for any
act or omission of any other trustee under this Agreement; and
(c) The Administrator and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request, or other writing given to the Owner Trustee shall
be considered to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to the conditions of
this Article. Each separate trustee and co-trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided in the instrument of appointment. Each
instrument of appointment shall be filed with the Owner Trustee and a copy of
it given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act with respect to this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign, or be removed, all of its
28
estates, properties, rights, and obligations shall vest in and be exercised by
the Owner Trustee, to the extent permitted by law, without the appointment of
a new or successor co-trustee or separate trustee.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments.
(a) This Agreement may be amended in any way by the Depositor and the
Owner Trustee, with the consent of any affected Certificateholder and the
Credit Enhancer, but only if the Rating Agency Condition is satisfied and the
amendment would not cause any adverse tax event for any Noteholder.
Promptly after the execution of any amendment or consent, the Owner
Trustee shall furnish a copy of the amendment or consent to the
Certificateholders, the Credit Enhancer, the Indenture Trustee, and each
Rating Agency.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause its filing with the Secretary of State of
the State of Delaware.
The Owner Trustee may, but shall not be obligated to, enter into any
amendment that affects the Owner Trustee's own rights or obligations under
this Agreement or otherwise.
In connection with the execution of any amendment to this Agreement, the
Certificate of Trust, or any amendment of any other agreement to which the
Trust is a party, the Owner Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel to the effect that the amendment
is authorized or permitted by this Agreement and the Transaction Documents.
(b) Notwithstanding anything to the contrary in this Agreement, before
the issuance of the Notes the Certificateholders may amend this Agreement
without the consent of any other party. Promptly after the execution of any
amendment pursuant to this paragraph, the Certificateholders shall furnish a
copy of the amendment to the Owner Trustee and the Credit Enhancer.
Section 11.02. Limitations on Rights of Others.
The provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Certificateholders, the Administrator, and, to the
extent expressly provided in this Agreement, the Indenture Trustee, the Credit
Enhancer and the Noteholders, and nothing in this Agreement, whether express
or implied, shall be construed to give to any other person any legal or
equitable interest in the Assets or under this Agreement.
29
Section 11.03. Notices.
(a) Except where telephonic instructions or notices are specifically
authorized, all notices, demands, instructions, consents, and other
communications required or permitted under this Agreement shall be in writing
and shall be personally delivered or sent by first class or express mail
(postage prepaid), national overnight courier service, or by facsimile
transmission or other electronic communication device capable of transmitting
or creating a written record (confirmed by first class mail) and shall be
considered to be given for purposes of this Agreement on the day that the
writing is delivered to its intended recipient. Unless otherwise specified in
a notice sent or delivered in accordance with this Section, notices, demands,
instructions, and other communications in writing shall be given to or made on
the respective parties at their respective addresses indicated below, and, in
the case of telephonic instructions or notices, by calling the telephone
number indicated for the party below:
if to the Owner Trustee, addressed to the Corporate Trust Office;
if to the Depositor, addressed to
CWHEQ, Inc.,
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to the Credit Enhancer, addressed to
MBIA Insurance Corporation,
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Insured Portfolio Management-Structured Finance
("IPM-SF") (CWHEQ Revolving Home Equity Loan Trust,
Series 2005-E)
telephone number (000) 000-0000
facsimile number (000) 000-0000
or, as to each party, at any other address designated by it in a written
notice to each other party.
(b) Any notice required or permitted to be given to the
Certificateholders shall be given by first-class mail, postage prepaid, at the
addresses of the Certificateholders. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder receives the notice.
30
Section 11.04. Severability.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of the prohibition or unenforceability without invalidating the remaining
provisions hereof, and that prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable the provision in any
other jurisdiction.
Section 11.05. Separate Counterparts.
This Agreement may be executed by the parties to this Agreement in
separate counterparts, each of which when so executed and delivered shall be
an original, but all the counterparts shall together constitute but one
instrument.
Section 11.06. Successors and Assigns.
All covenants and agreements contained in this Agreement shall be
binding on, and inure to the benefit of, each of the Depositor and its
permitted assignees, the Owner Trustee and its successors, and each
Certificateholder and any of its successors, all as provided in this
Agreement. Any request, notice, direction, consent, waiver or other instrument
or action by any Certificateholder shall bind its successors.
Section 11.07. Nonpetition Covenant.
Notwithstanding any prior termination of this Agreement, the Depositor
and the Owner Trustee, by entering into this Agreement, and each
Certificateholder, by accepting a Transferor Certificate, agree that they
shall not, before the date that is one year and one day after the termination
of the Agreement, file or participate in the filing of any petition against
the Trust that could cause the Trust to incur an Insolvency Event. Nothing in
this Agreement shall prohibit the Owner Trustee from participating in or
filing proofs of claim in any such proceeding instituted by any other person.
Section 11.08. No Recourse.
Each Certificateholder by accepting a Transferor Certificate
acknowledges that the Transferor Certificate represents the beneficial
interest in the Trust only and does not represent interests in or obligations
of the Depositor, the Servicer, the Administrator, the Owner Trustee, the
Indenture Trustee, or any Affiliate of any of them and no recourse may be had
against those parties or their assets, except as may be expressly stated or
contemplated in this Agreement, the other Transaction Documents, or the
Transferor Certificates.
Section 11.09. Headings.
The headings of the various Articles and Sections in this
Agreement are for convenience of reference only and shall not define
or limit any of the provisions of this Agreement.
Section 11.10. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT
31
REFERENCE TO ITS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION.
Section 11.11. Rule 144A Information.
As long as any of the securities of this Trust are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, the
Administrator on behalf of the Trust shall provide to any Noteholder or
Certificateholder and to any prospective purchaser from any of them designated
by any of them on the request of the Noteholder, Certificateholder, or
prospective purchaser, any information required to be provided the holder or
prospective purchaser to satisfy the conditions of Rule 144A(d)(4) under the
Securities Act.
Section 11.12. Third-Party Beneficiary.
The Credit Enhancer is a third-party beneficiary of this Agreement and
is entitled to the rights and benefits given to it under this Agreement as if
it were a party to this Agreement.
32
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
CWHEQ, INC.
Depositor
By: /s/ Xxxx Xxxxxxx, Xx.
-------------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Vice President
WILMINGTON TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Financial Services Officer
COUNTRYWIDE HOME LOANS, INC.
Master Servicer
With respect to Article VIII only
By: /s/ Xxxx Xxxxxxx, Xx.
------------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Senior Vice President
33
EXHIBIT A
FORM OF CERTIFICATE OF TRUST OF
CWHEQ REVOLVING HOME EQUITY LOAN TRUST, SERIES 2005-E
This Certificate of Trust of CWHEQ Revolving Home Equity Loan Trust,
Series 2005-E (the "Trust"), dated August 24, 2005, is being duly executed and
filed by Wilmington Trust Company, a Delaware banking corporation, as trustee,
to form a statutory trust under the Delaware Statutory Trust Act (12 Del.
Code, ss. 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust is CWHEQ Revolving Home Equity
Loan Trust, Series 2005-E.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, [________________],
[_________], Delaware _____, Attention: [________________].
3. Effective Date. This Certificate of Trust shall be effective upon its
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY,
Address: not in its individual capacity,
Xxxxxx Square North but solely as owner trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration By: ____________________________
Name:
Title:
A-1
EXHIBIT B
FORM OF TRANSFEROR CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO THE SECURITIES ACT
OF 1933 AND THE SECURITIES LAWS OF ANY STATE OR IS SOLD OR TRANSFERRED IN
TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933 AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
SECTION 3.10 OF THE TRUST AGREEMENT RELATED TO CWHEQ REVOLVING HOME EQUITY
LOAN TRUST, SERIES 2005-E. NEITHER THIS CERTIFICATE NOR ANY INTEREST IN IT MAY
BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT THE TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED, A PLAN SUBJECT TO SECTION 4975 OF THE CODE, AS AMENDED, OR A
PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN; OR AN OPINION
OF COUNSEL IN ACCORDANCE WITH SECTION 3.10(C) OF THE TRUST AGREEMENT RELATED
TO CWHEQ REVOLVING HOME EQUITY LOAN TRUST, SERIES 2005-E. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS
CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO
THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID.
B-1
Date of Trust Agreement : [______], 2005
Cut-off Date : [______], 2005
Percentage Interest : 100%
Certificate No. : [_______]
First Distribution Date :
REVOLVING HOME EQUITY LOAN ASSET BACKED TRANSFEROR CERTIFICATE
CWHEQ REVOLVING HOME EQUITY LOAN TRUST, SERIES 2005-E
Transferor Certificate
evidencing a percentage interest in the distributions allocable to
the Transferor Certificates evidencing an undivided interest in a
trust consisting primarily of a pool of adjustable rate home
equity revolving credit line mortgage loans sold by
CWHEQ, INC.
This Certificate does not represent an obligation of or
interest in CWHEQ, Inc. (the "Depositor"), Countrywide Home Loans,
Inc., or the Owner Trustee or any of their affiliates. Neither this
Certificate nor the underlying Assets are guaranteed or insured by
any governmental agency or instrumentality.
This certifies that [____________________________] is the registered
owner of the Percentage Interest evidenced by this Certificate in the entire
interest in the CWHEQ Revolving Home Equity Loan Trust, Series 2005-E (the
"Trust"), consisting primarily of a pool of mortgage loans (the "Mortgage
Loans") transferred by the Depositor and serviced by Countrywide Home Loans,
Inc. (in that capacity, the "Master Servicer"). The Trust was formed pursuant
to the Trust Agreement, dated as of August 24, 2005 (the "Agreement"), between
the Depositor and Wilmington Trust Company, as trustee (the "Owner Trustee"),
a summary of some of the pertinent provisions of which follows. Capitalized
terms used in this Certificate without definition have the meanings assigned
in the Agreement or the Sale and Servicing Agreement. This Certificate is
issued under and is subject to the Agreement. The Holder of this Certificate
by virtue of the acceptance of it agrees to be bound by the Agreement.
This Certificate is one of the Transferor Certificates from a duly
authorized issue of Certificates designated as Revolving Home Equity Loan
Asset Backed Transferor Certificates, Series 2005-E, representing, to the
extent specified in the Agreement, an undivided interest in:
(i) each Mortgage Loan, including its Asset Balance (including all
Additional Balances), the related Mortgage File, all property that
secures the Mortgage Loans, and all collections received on it after the
Cut-off Date (excluding payments due by the Cut-off Date);
B-2
(ii) property that secured a Mortgage Loan that is acquired by
foreclosure or deed in lieu of foreclosure;
(iii) the Depositor's rights under the Purchase Agreement;
(iv) the Depositor's rights under the hazard insurance policies
covering Mortgaged Properties; and
(v) certain other property described in the Agreement and Section
2.01 of the Sale and Servicing Agreement (collectively, the "Assets").
A first priority security interest in all the Assets has been granted to the
Indenture Trustee under the Indenture.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds available under the Agreement for
payment of this Certificate and that the Owner Trustee in its individual
capacity is not personally liable to the Certificateholders for any amount
payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights, and limitations
of rights and obligations evidenced by this Certificate, and the rights and
obligations of the Owner Trustee.
The Agreement may be amended in any way by the Depositor and the Owner
Trustee, with the consent of any affected Certificateholder and the Credit
Enhancer but only if the Rating Agency Condition is satisfied and the
amendment would not cause any adverse tax event for any Noteholder.
No transfer of this Certificate shall be made unless the transfer is
exempt from the registration requirements of the Securities Act of 1933 (the
"Act") and any applicable state securities laws or is made in accordance with
the Act and those laws. In connection with any transfer of this Certificate,
the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to
and in form and substance satisfactory to the Owner Trustee certifying
to the Owner Trustee the facts surrounding the transfer, which
investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance
satisfactory to the Owner Trustee and the Depositor that the transfer
may be made pursuant to an exemption from the Act, describing the
applicable exemption and its basis, or is being made pursuant to the
Act, which Opinion of Counsel shall not be an expense of the Owner
Trustee or the Depositor.
In connection with any transfer of this Certificate, the holder transferring
this Certificate shall indemnify the Trust against any liability that may
result if the transfer is not so exempt or is not made in accordance with any
federal and state laws.
B-3
Neither this Certificate nor any legal or beneficial interest in it may
be, directly or indirectly, purchased, transferred, sold, pledged, assigned,
or otherwise disposed of, and any proposed transferee of this Certificate
shall not become its registered Holder, unless the conditions in Section 3.10
of the Agreement are satisfied.
No service charge shall be made for the registration of transfer or
exchange of this Certificate, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of this Certificate.
The Owner Trustee, the Certificate Registrar, and any Certificate Paying
Agent will treat the person in whose name this Certificate is registered in
the Certificate Register as its owner for the purpose of receiving
distributions pursuant to Section 5.02 of the Agreement and for all other
purposes whatsoever, and none of the Owner Trustee, the Certificate Registrar,
and any Certificate Paying Agent shall be bound by any notice to the contrary.
The obligations created by the Agreement will terminate and this
Certificate will be retired and the Trust will be dissolved when the Trust has
made the final distribution of all moneys or other property or proceeds of all
Assets in accordance with the terms of the Transaction Documents and Article V
of the Agreement. The Transferor, with the consent of the Credit Enhancer and
the Master Servicer, may effect the transfer of all the Mortgage Loans at
their termination purchase price on any Payment Date from the Payment Date
immediately before which the aggregate Note Principal Balance of both Classes
of Notes is less than or equal to 10% of the Original Note Principal Balance
of both Classes of Notes. This transfer will result in the termination of the
Agreement and the dissolution of the Trust.
B-4
Unless the certificate of authentication on this Certificate has been
executed by the Certificate Registrar by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement, or be valid for any
purpose.
Dated: [______], 2005
CWHEQ Revolving Home Equity Loan
Trust,
Series 2005-E
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee
By:______________________________________
Name:
Title:
Certificate of Authentication:
This is one of the Transferor Certificates
referenced in the within-mentioned Agreement.
JPMORGAN CHASE BANK, N.A.
By: ________________________
Authorized Officer
B-5
EXHIBIT C
FORM OF TRANSFEROR INVESTMENT LETTER
FOR TRANSFEROR CERTIFICATES
Date:
CWHEQ, Inc.
as Depositor
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: ________________
Wilmington Trust Company, as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Re: CWHEQ Revolving Home Equity Loan Trust, Series 2005-E Revolving
Home Equity Loan Asset Backed Securities, Series 2005-E
Transferor Certificates
---------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale by
_____________ (the "Transferor") to ______________________ (the "Transferee")
of the Certificates representing a ____% Percentage Interest (the "Transferred
Certificates"). All capitalized terms used in this certificate without
definition have the meanings given to them in the Trust Agreement, dated as of
August 24, 2005, between CWHEQ, Inc., as depositor, and Wilmington Trust
Company, as owner trustee. The Transferor hereby certifies, represents, and
warrants to you that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer them free from any claims and encumbrances
whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold, or otherwise disposed of any Certificate,
any interest in any Certificate, or any other similar security to any person
in any manner, (b) solicited any offer to buy or accept a transfer, pledge, or
other disposition of any Certificate, any interest in any Certificate, or any
other similar security from any person in any manner, (c) otherwise approached
or negotiated with respect to any Certificate, any interest in any Certificate
or any other similar security with any person in any manner, (d) made any
general solicitation by general advertising or in any other manner, or (e)
taken any other action that (in the case of any
C-1
of the acts described in clauses (a) through (e) of this paragraph) would
constitute a distribution of any Certificate under the Securities Act of 1933,
as amended (the "Securities Act"), or would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of any
Certificate pursuant to the Securities Act or any state securities laws.
3. The Transferor and any person acting on behalf of the Transferor in
this matter reasonably believe that the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act (a "Qualified Institutional Buyer") purchasing for its own
account or for the account of a Qualified Institutional Buyer. In determining
whether the Transferee is a Qualified Institutional Buyer, the Transferor and
any person acting on behalf of the Transferor in this matter have relied on
the following to establish the Transferee's ownership and discretionary
investments of securities (check one or more):
o The Transferee's most recent publicly available financial
statements, which statements present the information as of a date
within 16 months preceding the date of sale of the Transferred
Certificate in the case of a U.S. purchaser and within 18 months
preceding such date of sale for a foreign purchaser; or
o The most recent publicly available information appearing in
documents filed by the Transferee with the Securities and Exchange
Commission or another United States federal, state, or local
governmental agency or self-regulatory organization, or with a
foreign governmental agency or self-regulatory organization, which
information is as of a date within 16 months preceding the date of
sale of the Transferred Certificate in the case of a U.S.
purchaser and within 18 months preceding such date of sale for a
foreign purchaser; or
o The most recent publicly available information appearing in a
recognized securities manual, which information is as of a date
within 16 months preceding the date of sale of the Transferred
Certificate in the case of a U.S. purchaser and within 18 months
preceding such date of sale for a foreign purchaser; or
o A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of
the Transferee, specifying the amount of securities owned and
invested on a discretionary basis by the Transferee as of a
specific date on or since the close of the Transferee's most
recent fiscal year, or, in the case of a Transferee that is a
member of a "family of investment companies," as that term is
defined in Rule 144A, a certification by an executive officer of
the investment adviser specifying the amount of securities owned
by the "family of investment companies" as of a specific date on
or since the close of the Transferee's most recent fiscal year.
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned and
invested on a discretionary
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basis by an entity for purposes of establishing whether such entity is a
Qualified Institutional Buyer:
o the following instruments and interests shall be excluded:
securities of issuers that are affiliated with the Transferee;
securities that are part of an unsold allotment to or subscription
by the Transferee, if the Transferee is a dealer; securities of
issuers that are part of the Transferee's "family of investment
companies," if the Transferee is a registered investment company;
bank deposit notes and certificates of deposit; loan participations;
repurchase agreements; securities owned but subject to a repurchase
agreement; and currency, interest rate, and commodity swaps;
o the aggregate value of the securities shall be the cost of such
securities, except where the entity reports its securities holdings
in its financial statements on the basis of their market value, and
no current information with respect to the cost of those securities
has been published, in which case the securities may be valued at
market;
o securities owned by subsidiaries of the entity that are consolidated
with the entity in its financial statements prepared in accordance
with generally accepted accounting principles may be included if the
investments of such subsidiaries are managed under the direction of
the entity, except that, unless the entity is a reporting company
under Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, securities owned by such subsidiaries may not be included
if the entity itself is a majority-owned subsidiary that would be
included in the consolidated financial statements of another
enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the
Transferor is relying on the exemption from the provisions of Section 5
of the Securities Act provided by Rule 144A.
6. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding (a) the
Transferred Certificates and payments on them, (b) the nature and performance
of the Mortgage Loans, and (c) the Indenture, the Agreement, and the Trust
Estate, that the Transferee has requested.
Very truly yours,
________________________________________
(Transferor)
By: ____________________________________
Name: __________________________________
Title:__________________________________
C-3
FORM OF TRANSFEREE INVESTMENT LETTER
FOR TRANSFEROR CERTIFICATES
Date:
CWHEQ, Inc.
as Depositor
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: ________________
Wilmington Trust Company, as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Re: CWHEQ Revolving Home Equity Loan Trust, Series 2005-E, Revolving
Home Equity Loan Asset Backed Securities, Series 2005-E
Transferor Certificates
----------------------------------------------------------------
Ladies and Gentlemen:
_______________________ (the "Transferee") intends to purchase from
______________________ (the "Transferor") Certificates representing a ___%
percentage interest in the entire interest in the Certificates (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Agreement. All capitalized terms
used in this certificate without definition have the meanings given to them in
the Trust Agreement, dated as of August 24, 2005, between CWHEQ, Inc., as
depositor, and Wilmington Trust Company, as owner trustee. The Transferee
hereby certifies, represents, and warrants that:
1. The Transferee is a "qualified institutional
buyer" (a "Qualified Institutional Buyer") as that
term is defined in Rule 144A ("Rule 144A") under the
Securities Act of 1933, as amended (the "Securities
Act"), and has completed one of the forms of
certification to that effect attached as Annex 1 and
Annex 2. The Transferee is aware that the sale to it
of the Transferred Certificates is being made in
reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for
the account of a Qualified Institutional Buyer, and
understands that the Transferred Certificates may be
resold, pledged, or transferred only
C-4
to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account
or for the account of a Qualified Institutional Buyer
to whom notice is given that the resale, pledge, or
transfer is being made in reliance on Rule 144A.
2. The Transferee has been furnished with all
information regarding (a) the Transferred Certificates
and payments on them, (b) the nature and performance
of the Mortgage Loans, (c) the Indenture, (d) the
Agreement, and (e) any credit enhancement mechanism
associated with the Transferred Certificates, that it
has requested.
3. The Transferee represents that it is not an
employee benefit plan that is subject to the Employee
Retirement Income Security Act of 1974, as amended,
nor a plan subject to Section 4975 of the Internal
Revenue Code of 1986, as amended, nor is it acting on
behalf of or investing plan assets of any such
employee benefit plan.
4. The Transferee agrees to be bound by the
Agreement.
Very truly yours,
________________________________________
(Transferor)
By: ____________________________________
Name: __________________________________
Title:__________________________________
C-5
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the Certificates being transferred (the "Transferred
Certificates") as described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is defined
in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"),
because (i) the Transferee owned or invested on a discretionary basis
$________________________ in securities (other than the excluded securities
referred to below and otherwise calculated in accordance with Rule 144A) as
of the end of the Transferee's most recent fiscal year and (ii) the
Transferee satisfies the criteria in the category marked below.
o Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association, or similar institution),
Massachusetts or similar statutory trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
o Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S. territory,
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the state
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached, as of a date
not more than 16 months preceding the date of sale of the
Certificates in the case of a U.S. bank, and not more than 18
months preceding such date of sale for a foreign bank or
equivalent institution.
o Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association, or similar institution that is supervised
and examined by a state or federal authority having supervision
over those institutions or is a foreign savings and
C-6
loan association or equivalent institution and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached, as of a
date not more than 16 months preceding the date of sale of the
Certificates in the case of a U.S. savings and loan association,
and not more than 18 months preceding such date of sale for a
foreign savings and loan association or equivalent institution.
o Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
o Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and that is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory, or the District of Columbia.
o Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
3. o Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection (a)(1)
of Rule 144A pursuant to which it qualifies. Note that registered
investment companies should complete Annex 2 rather than this Annex 1.)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
_______________________________________________________________ The term
"securities" does not include (i) securities of issuers that are affiliated
with the Transferee, (ii) securities that are part of an unsold allotment
to or subscription by the Transferee, if the Transferee is a dealer, (iii)
bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a
repurchase agreement, and (vii) currency, interest rate, and commodity
swaps. For purposes of determining the aggregate amount of securities owned
or invested on a discretionary basis by the Transferee, the Transferee did
not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned or
invested on a discretionary basis by the Transferee, the Transferee used
the cost of the securities to the Transferee, unless the Transferee reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining the aggregate amount, the Transferee may
have included securities owned by subsidiaries of the Transferee, but only
if the subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted
C-7
accounting principles and if the investments of the subsidiaries are managed
under the Transferee's direction. However, such securities were not included
if the Transferee is a majority-owned, consolidated subsidiary of another
enterprise and the Transferee is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the
Transferred Certificates are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be
in reliance on Rule 144A.
| | | | Will the Transferee be purchasing the Transferred Owner Trust
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case where
the Transferee is purchasing for an account other than its own, the account
belongs to a third party that is itself a "qualified institutional buyer"
within the meaning of Rule 144A, and the "qualified institutional buyer"
status of the third party has been established by the Transferee through
one or more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this certification
is made of any changes in the information and conclusions herein. Until
that notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of
the date of the purchase. In addition, if the Transferee is a bank or
savings and loan as provided above, the Transferee agrees that it will
furnish to such parties any updated annual financial statements that become
available on or before the date of the purchase, promptly after they become
available.
____________________________________
Print Name of Transferee
By:_________________________________
Name:
____________________________________
Title:
____________________________________Date:
C-8
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the Certificates being transferred (the "Transferred
Certificates") as described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A"), because the Transferee is
part of a Family of Investment Companies, is an executive officer
of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended,
and (ii) as marked below, the Transferee alone owned or invested
on a discretionary basis, or the Transferee's Family of Investment
Companies owned, at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year. For purposes of determining
the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of the
securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be,
reports its securities holdings in its financial statements on the
basis of their market value, and no current information with
respect to the cost of those securities has been published, in
which case the securities of the entity were valued at market.
o The Transferee owned or invested on a discretionary basis
$_____________________ in securities (other than the excluded
securities referred to below and otherwise calculated in
accordance with Rule 144A) as of the end of the Transferee's most
recent fiscal year.
o The Transferee is part of a "Family of Investment Companies" that
owned in the aggregate $________________ in securities (other than
the excluded securities referred to below and otherwise calculated
in accordance with Rule 144A) as of the end of the Transferee's
most recent fiscal year.
C-9
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the
same parent or because one investment adviser is a majority owned
subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit
notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a
repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount
of securities owned and/or invested on a discretionary basis by
the Transferee, or owned by the Transferee's Family of Investment
Companies, the securities referred to in this paragraph were
excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and
will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
| | | | Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case where
the Transferee is purchasing for an account other than its own,
the account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the
"qualified institutional buyer" status of the third party has been
established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein.
Until that notice, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification
by the undersigned as of the date of the purchase.
___________________________________________
Print Name of Transferee or Adviser
C-10
By: _______________________________________
Name: _____________________________________
Title: __________________________________IF
AN ADVISER:
___________________________________________
Print Name of Transferee
Date: _________________________
C-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
___________________________________________
___________________________________________
___________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of the Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Issuer to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver the
Certificate to the following address:
___________________________________________.
Dated: _______________
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to:
_____________________________________
_____________________________________,
_____________________________________,
for the account of____________________________ , account number _____________,
or, if mailed by check, to_________________________ . Applicable statements
should be mailed to_____________________________ ,___________________________
information is provided by____________________________________ , the assignee
named above, or____________________________________ , as its agent.
C-12
