BEAR STEARNS ASSET BACKED SECURITIES I LLC, as Depositor WILMINGTON TRUST COMPANY, as Owner Trustee and WELLS FARGO BANK, N.A., not in its individual capacity, but solely in its capacity as Securities Administrator and as Certificate Paying Agent...
BEAR
▇▇▇▇▇▇▇ ASSET BACKED SECURITIES I LLC,
as
Depositor
WILMINGTON
TRUST COMPANY,
as
Owner
Trustee
and
▇▇▇▇▇
FARGO BANK, N.A.,
not
in
its individual capacity, but solely in its capacity as Securities
Administrator
and
as
Certificate Paying Agent
AMENDED
AND RESTATED
Dated
as
of February
28, 2006
Trust
Certificates,
Series
2006-1
ARTICLE
I
Definitions
Section
1.01. Definitions
Section
1.02. Other
Definitional Provisions.
ARTICLE
II
Organization
Section
2.01. Name
Section
2.02. Office
Section
2.03. Purposes
and Powers
Section
2.04. Appointment
of Owner Trustee
Section
2.05. Initial
Capital Contribution of Owner Trust Estate
Section
2.06. Declaration
of Trust
Section
2.07. Liability
of the Holder of the Certificates
Section
2.08. Title
to
Trust Property
Section
2.09. Situs
of
Trust
Section
2.10. Representations
and Warranties of the Depositor
Section
2.11. Investment
Company
ARTICLE
III
Conveyance
of the Mortgage Loans; Certificates
Section
3.01. Initial
Ownership
Section
3.02. The
Certificate
Section
3.03. Authentication
of Certificates
Section
3.04. Registration
of and Limitations on Transfer and Exchange of Certificates
Section
3.05. Mutilated,
Destroyed, Lost or Stolen Certificates
Section
3.06. Persons
Deemed Certificateholders
Section
3.07. Access
to
List of Certificateholders' Names and Addresses
Section
3.08. Maintenance
of Office or Agency
Section
3.09. Certificate
Paying Agent
ARTICLE
IV
Authority
and Duties of Owner Trustee
Section
4.01. General
Authority
Section
4.02. General
Duties
Section
4.03. Action
upon Instruction
Section
4.04. No
Duties
Except as Specified under Specified Documents or in Instructions
Section
4.05. Restrictions
Section
4.06. Prior
Notice to Certificateholders with Respect to Certain Matters
Section
4.07. Action
by
Certificateholders with Respect to Certain Matters
Section
4.08. Action
by
Certificateholders with Respect to Bankruptcy
Section
4.09. Restrictions
on Certificateholders' Power
Section
4.10. Majority
Control
Section
4.11. Optional
Redemption
Section
4.12. Optional
Purchase of Certain Mortgage Loans
ARTICLE
V
Application
of Trust Funds
Section
5.01. Distributions
Section
5.02. Method
of
Payment
Section
5.03. Tax
Returns
Section
5.04. Statements
to Certificateholders
ARTICLE
VI
Concerning
the Owner Trustee
Section
6.01. Acceptance
of Trusts and Duties
Section
6.02. Furnishing
of Documents
Section
6.03. Representations
and Warranties
Section
6.04. Reliance;
Advice of Counsel
Section
6.05. Not
Acting in
Individual Capacity
Section
6.06. Owner
Trustee Not Liable for Certificates or Related Documents
Section
6.07. Owner
Trustee May Own Certificates and Notes
Section
6.08. Payments
from
Owner Trust Estate
Section
6.09. [RESERVED].
Section
6.10. Liability
of Certificate Registrar and Certificate Paying Agent
Section
6.11. Special
Derivative Contracts.
ARTICLE
VII
Compensation
of Owner Trustee
Section
7.01. Owner
Trustee's Fees and Expenses
Section
7.02. Indemnification
ARTICLE
VIII
Termination
of Trust Agreement
Section
8.01. Termination
of Trust Agreement
ARTICLE
IX
Successor
Owner Trustees and Additional Owner Trustees
Section
9.01. Eligibility
Requirements for Owner Trustee
Section
9.02. Replacement
of Owner Trustee
Section
9.03. Successor
Owner Trustee
Section
9.04. Merger
or
Consolidation of Owner Trustee
Section
9.05. Appointment
of Co-Trustee or Separate Trustee
ARTICLE
X
Miscellaneous
Section
10.01. Amendments
Section
10.02. No
Legal
Title to Owner Trust Estate
Section
10.03. Limitations
on Rights of Others
Section
10.04. Notices
Section
10.05. Severability
Section
10.06. Separate
Counterparts
Section
10.07. Successors
and Assigns
Section
10.08. No
Petition
Section
10.09. No
Recourse
Section
10.10. Headings
Section
10.11. GOVERNING
LAW
Section
10.12. Integration
Section
10.13. Obligations
ARTICLE
XI
TMP
Trigger Event and REMIC Conversion
Section
11.01. Events
Following a TMP Trigger Event. Upon a TMP Trigger Event, the Depositor shall
cause the following events to take place on behalf of the Issuing
Entity:
Section
11.02. Tax
Matters Regarding REMIC Status of Trust and Underlying REMIC Trust.
EXHIBITS
Exhibit
A
- Form of Certificate A-1
Exhibit
B
- Certificate of Trust of Bear ▇▇▇▇▇▇▇ ARM Trust 2006-1 B-1
Exhibit
C
- Form of Rule 144A Investment Representation C-1
Exhibit
D
- Form of Certificate of Non-Foreign Status D-1
Exhibit
E
- Form of Investment Letter E-1
Exhibit
F
- Form of Transferor Certificate F-1
Exhibit
G
- Form of ERISA Letter G-1
Exhibit
H
- Form of Transferee Certificate H-1
Exhibit
I
- Form of Lender Transferor CertificateI-1
Exhibit
J
- Form of REMIC Class A Indenture J-1
Exhibit
K
- Form of Underlying REMIC Trust Pooling and Servicing Agreement K-1
Exhibit
L
- Form of Notice for TMP Trigger EventL-1
This
Amended and Restated Trust Agreement, dated as of February 28, 2006 (as amended
from time to time, this “Trust Agreement”), among Bear ▇▇▇▇▇▇▇ Asset Backed
Securities I LLC, a Delaware corporation, as depositor (the “Depositor”),
Wilmington Trust Company, a Delaware banking corporation, as owner trustee
(the
“Owner Trustee”) and ▇▇▇▇▇ Fargo Bank, N.A., not individually but acting solely
as Securities Administrator and as Certificate Paying Agent.
WITNESSETH
THAT:
In
consideration of the mutual agreements herein contained, the Depositor and
the
Owner Trustee agree as follows:
WHEREAS,
the Depositor and the Owner Trustee have previously entered into the Trust
Agreement dated as of February 27, 2006 (the “Trust Agreement”).
WHEREAS,
the parties hereto desire to amend the terms of and restate the Trust
Agreement.
In
consideration of the mutual agreements herein contained, the Depositor, the
Owner Trustee and the Securities Administrator, solely for purposes of its
agreement to serve as Certificate Registrar and Certificate Paying Agent, agree
as follows:
ARTICLE
I
Definitions
Section
1.01. Definitions.
For all
purposes of this Trust Agreement, except as otherwise expressly provided herein
or unless the context otherwise requires, capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in Appendix A
to
the Indenture, dated February 28, 2006, among Bear ▇▇▇▇▇▇▇ ARM Trust 2006-1,
as
Issuing Entity, U.S. Bank National Association, as Indenture Trustee, and ▇▇▇▇▇
Fargo Bank, N.A., as Securities Administrator, which is incorporated by
reference herein. All other capitalized terms used herein shall have the
meanings specified herein.
Section
1.02. Other
Definitional Provisions.
(a) All
terms
defined in this Trust Agreement shall have the defined meanings when used in
any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As
used
in this Trust Agreement and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in this
Trust
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Trust Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given
to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Trust Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Trust Agreement or in any such certificate or other document shall
control.
(c) The
words
“hereof,” “herein,” “hereunder” and words of similar import when used in this
Trust Agreement shall refer to this Trust Agreement as a whole and not to any
particular provision of this Trust Agreement; Article, Section and Exhibit
references contained in this Trust Agreement are references to Articles,
Sections and Exhibits in or to this Trust Agreement unless otherwise specified;
and the term “including” shall mean “including without limitation”.
(d) The
definitions contained in this Trust Agreement are applicable to the singular
as
well as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
(e) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE
II
Organization
Section
2.01. Name.
The
trust created hereby (the “Trust”) shall be known as “Bear ▇▇▇▇▇▇▇ ARM Trust
2006-1”, in which name the Owner Trustee may conduct the business of the Trust,
make and execute contracts and other instruments on behalf of the Trust and
▇▇▇
and be sued.
Section
2.02. Office.
The
office of the Trust shall be in care of the Owner Trustee at the Corporate
Trust
Office or at such other address in Delaware as the Owner Trustee may designate
by written notice to the Certificateholders and the Depositor.
Section
2.03. Purposes
and Powers.
The
purpose of the Trust is to engage in the following activities:
(i) to
issue
the Notes pursuant to the Indenture and the Certificates pursuant to this Trust
Agreement and to sell the Notes and the Certificates;
(ii) to
pay
the organizational, start-up and transactional expenses of the
Trust;
(iii) to
assign, grant, transfer, pledge and convey the Mortgage Loans pursuant to the
Indenture and to hold, manage and distribute to the Certificateholder pursuant
to Section 5.01 herein, any portion of the Mortgage Loans released from the
Lien
of, and remitted to the Trust pursuant to the Indenture;
(iv) to
enter
into and perform its obligations under the Basic Documents to which it is to
be
a party;
(v) if
directed by holders of Certificates representing more than 50% of the beneficial
interests in the Trust, sell the Owner Trust Estate subsequent to the discharge
of the Indenture, all for the benefit of the holders of the
Certificates;
(vi) to
cause
the events in connection with a REMIC Conversion to be satisfied and a REMIC
Conversion to occur, and any reasonable acts in furtherance of the foregoing,
in
each case following the occurrence of a TMP Trigger Event;
(vii) to
engage
in those activities, including entering into agreements, that are necessary,
suitable or convenient to accomplish the foregoing or are incidental thereto
or
connected therewith; and
(viii) subject
to compliance with the Basic Documents, to engage in such other activities
as
may be required in connection with conservation of the Owner Trust Estate and
the making of distributions to the Certificateholders and the
Noteholders.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trust shall
not
engage in any activity other than in connection with the foregoing or other
than
as required or authorized by the terms of this Trust Agreement or the Basic
Documents.
Section
2.04. Appointment
of Owner Trustee.
The
Depositor hereby appoints the Owner Trustee as trustee of the Trust effective
as
of the date hereof, to have all the rights, powers and duties set forth
herein.
Section
2.05. Initial
Capital Contribution of Owner Trust Estate.
The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Trust,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial corpus of the Trust and shall
be deposited in the Certificate Distribution Account. The Owner Trustee also
acknowledges on behalf of the Trust the receipt in trust of the Mortgage Loans
and the rights with respect to the representations and warranties made by the
Seller and the Mortgage Loan Seller under the Mortgage Loan Purchase Agreement
which shall constitute the Owner Trust Estate.
Section
2.06. Declaration
of Trust.
The
Owner Trustee hereby declares that it shall hold the Owner Trust Estate in
trust
upon and subject to the conditions set forth herein for the use and benefit
of
the Certificateholders, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute
a
“statutory trust” under the Statutory Trust Statute and that this Trust
Agreement constitute the governing instrument of such statutory trust.
It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Trust shall be disregarded as an entity
separate from the Single Owner, and the provisions of this Agreement shall
be
interpreted to further this intention. Except as otherwise provided in this
Trust Agreement, the rights of the Certificateholders will be those of equity
owners of the Trust. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth herein and in the Statutory Trust
Statute with respect to accomplishing the purposes of the Trust.
Section
2.07. Liability
of the Holder of the Certificates.
The
Holder of the Certificates shall have the same limitation of personal liability
as common stockholders in a corporation, under the Delaware General Corporation
Law; provided, however, the Holders of the Certificates shall be liable for
and
shall promptly pay any entity level taxes imposed on the Trust.
Section
2.08. Title
to Trust Property.
Legal
title to the Owner Trust Estate shall be vested at all times in the Trust as
a
separate legal entity except where applicable law in any jurisdiction requires
title to any part of the Owner Trust Estate to be vested in a trustee or
trustees, in which case title shall be deemed to be vested in the Owner Trustee,
a co-trustee and/or a separate trustee, as the case may be.
Section
2.09. Situs
of Trust.
The
Trust will be located and administered in Delaware, Maryland, Minnesota or
New
York. All bank accounts maintained by the Owner Trustee on behalf of the Trust
shall be located in the Delaware, Maryland, Minnesota or New York. The Trust
shall not have any employees in any state other than Delaware; provided,
however, that nothing herein shall restrict or prohibit the Owner Trustee from
having employees within or without the State of Delaware or taking actions
outside the State of Delaware in order to comply with Section 2.03. Payments
will be received by the Trust only in Delaware, Maryland, Minnesota or New
York,
and payments will be made by the Trust only from Delaware, Maryland, Minnesota
or New York. The only office of the Trust maintained by the Owner Trustee will
be at the Corporate Trust Office in Delaware.
Section
2.10. Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The
Depositor is duly organized and validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority
to
own its properties and to conduct its business as such properties are currently
owned and such business is presently conducted.
(ii) The
Depositor is duly qualified to do business as a foreign corporation in good
standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its property or the conduct
of
its business shall require such qualifications and in which the failure to
so
qualify would have a material adverse effect on the business, properties, assets
or condition (financial or other) of the Depositor.
(iii) The
Depositor has the power and authority to execute and deliver this Trust
Agreement and to carry out its terms; the Depositor has full power and authority
to convey and assign the property to be conveyed and assigned to and deposited
with the Trust as part of the Owner Trust Estate and the Depositor has duly
authorized such conveyance and assignment and deposit to the Trust by all
necessary corporate action; and the execution, delivery and performance of
this
Trust Agreement have been duly authorized by the Depositor by all necessary
corporate action.
(iv) The
consummation of the transactions contemplated by this Trust Agreement and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or by-laws of
the
Depositor, or any indenture, agreement or other instrument to which the
Depositor is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any
such indenture, agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor's knowledge,
any order, rule or regulation applicable to the Depositor of any court or of
any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
(v) The
Trust
is not required to register as an investment company under the Investment
Company Act and is not under the control of a Person required to so
register.
Section
2.11. Investment
Company.
Neither
the Depositor nor any holder of a Certificate shall take any action which would
cause the Trust to become an “investment company” which would be required to
register under the Investment Company Act.
ARTICLE
III
Conveyance
of the Mortgage Loans;
Certificates
Section
3.01. Initial
Ownership.
Upon
the formation of the Trust by the contribution by the Depositor pursuant to
Section 2.01 and until the conveyance of the Mortgage Loans pursuant to Section
2.01 of the Sale and Servicing Agreement and the issuance of the Certificates,
and thereafter except as otherwise permitted hereunder, the Depositor shall
be
the sole Certificateholder.
Section
3.02. The
Certificate.
The
Certificate shall be issued in the form of one Certificate, representing not
less than a 100% Certificate Percentage Interest. The Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Owner Trustee and authenticated in the manner provided
in Section 3.03. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefit of this Trust Agreement, notwithstanding that such individuals
or
any of them shall have ceased to be so authorized prior to the authentication
and delivery of such Certificates or did not hold such offices at the date
of
authentication and delivery of such Certificates. A Person shall become a
Certificateholder and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such Person's acceptance
of a
Certificate duly registered in such Person's name, pursuant to Section
3.04.
A
transferee of a Certificate shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee's acceptance of a Certificate duly registered
in
such transferee's name pursuant to and upon satisfaction of the conditions
set
forth in Section 3.04.
Section
3.03. Authentication
of Certificates.
The
Certificate Registrar shall cause all Certificates issued hereunder to be
executed, authenticated and delivered to or upon the written order of the
Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor, in the authorized
denomination. The Certificate shall entitle its holder to any benefit under
this
Owner Trust Agreement or be valid for any purpose unless there shall appear
on
the Certificates a certificate of authentication substantially in the form
set
forth in Exhibit A, executed by the Certificate Registrar or by an
authenticating agent of the Issuing Entity by manual signature; such
authentication shall constitute conclusive evidence that the Certificate shall
have been duly authenticated and delivered hereunder. The Certificates shall
be
dated the date of its authentication.
Section
3.04. Registration
of and Limitations on Transfer and Exchange of Certificates.
The
Securities Administrator is hereby appointed as the Certificate Registrar of
the
Trust. The Certificate Registrar shall keep or cause to be kept, a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Certificate Registrar shall provide for the registration of Certificates
and
of transfers and exchanges of Certificates as herein provided. If the
Certificate Registrar resigns or is removed, the Depositor shall appoint a
successor Certificate Registrar.
Subject
to satisfaction of the conditions set forth below with respect to the
Certificate, upon surrender for registration of transfer of any Certificate
at
the office or agency maintained pursuant to Section 3.08, the Owner Trustee
and
the Certificate Registrar shall execute, authenticate and deliver in the name
of
the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Certificate Registrar. At the option of a Holder,
Certificates may be exchanged for other Certificates of authorized denominations
of a like aggregate amount upon surrender of the Certificates to be exchanged
at
the office or agency maintained pursuant to Section 3.08.
Every
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory
to
the Certificate Registrar duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the
Certificate Registrar in accordance with its customary practice.
No
service charge shall be made for any registration of transfer or exchange of
Certificates, 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
Certificates.
No
Person
shall become a Certificateholder until it shall establish its non-foreign status
by submitting to the Certificate Paying Agent an IRS Form W-9 and the
Certificate of Non-Foreign Status set forth in Exhibit D hereto.
No
transfer, sale, pledge or other disposition of a Certificate shall be made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event
of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) an investment
letter in substantially the form attached hereto as Exhibit C (or in such form
and substance reasonably satisfactory to the Certificate Registrar and the
Depositor) which investment letter shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Master Servicer, the Securities
Administrator, the Seller, the Mortgage Loan Seller, the Servicer or the
Depositor and which investment letter states that, among other things, such
transferee (a) is a “qualified institutional buyer” as defined under Rule 144A,
acting for its own account or the accounts of other “qualified institutional
buyers” as defined under Rule 144A, and (b) is aware that the proposed
transferor intends to rely on the exemption from registration requirements
under
the Securities Act of 1933, as amended, provided by Rule 144A or (ii) (a) a
written Opinion of Counsel acceptable to and in form and substance satisfactory
to the Certificate Registrar and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from said Act and laws or is being made pursuant to said Act and
laws,
which Opinion of Counsel shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Master Servicer, the Securities
Administrator, the Seller, the Mortgage Loan Seller, the Servicer or the
Depositor and (b) the transferee executes a representation letter, substantially
in the form of Exhibit E to the Agreement, and transferor executes a
representation letter, substantially in the form of Exhibit F hereto, each
acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor certifying the facts surrounding such transfer,
which representation letters shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Master Servicer, the Securities
Administrator, the Seller, the Mortgage Loan Seller, the Servicer or the
Depositor and (B) the Certificate of Non-Foreign Status (in substantially the
form attached hereto as Exhibit D) acceptable to and in form and substance
reasonably satisfactory to the Certificate Registrar and the Depositor, which
certificate shall not be an expense of the Trust, the Owner Trustee, the
Certificate Registrar, the Master Servicer, the Securities Administrator, the
Seller, the Mortgage Loan Seller, the Servicer or the Depositor. No
certification will be required in connection with the initial transfer of any
such Certificate by the Issuing Entity to the Depositor and by the Depositor
to
one of its Affiliates. The Holder of a Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trust, the Owner
Trustee, the Certificate Registrar, the Master Servicer, the Securities
Administrator, the Seller, the Mortgage Loan Seller, the Servicer and the
Depositor against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No
transfer of Certificates or any interest therein shall be made to any Person
unless the Depositor, the Owner Trustee and the Certificate Registrar are
provided with an Opinion of Counsel which establishes to the satisfaction of
the
Depositor, the Owner Trustee, the Certificate Registrar, the Seller, the
Mortgage Loan Seller, the Servicer and the Master Servicer that the purchase
of
Certificates is permissible under applicable law, will not constitute or result
in any prohibited transaction under ERISA or Section 4975 of the Code and will
not subject the Depositor, the Owner Trustee, the Certificate Registrar, the
Securities Administrator, the Seller, the Mortgage Loan Seller, the Servicer
or
the Master Servicer to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Depositor, the Owner Trustee, the Certificate Registrar, the Securities
Administrator, the Seller, the Mortgage Loan Seller, the Servicer or the Master
Servicer. In lieu of such Opinion of Counsel, a Person acquiring such
Certificates may provide a certification in the form of Exhibit G to this
Agreement, which the Depositor, the Owner Trustee, the Certificate Registrar,
the Securities Administrator, the Seller, the Mortgage Loan Seller, the Servicer
and the Master Servicer may rely upon without further inquiry or investigation.
Neither an Opinion of Counsel nor a certification will be required in connection
with the initial transfer of any such Certificate from the Issuing Entity to
the
Depositor, or by the Depositor to an Affiliate of the Depositor (in which case,
the Depositor and such Affiliate, as applicable, shall be deemed to have
represented that such party is not a Plan or a Person investing Plan Assets
of
any Plan).
Prior
to
a REMIC Conversion, no transfer, sale, pledge or other disposition of a
Certificate shall be made, and the Certificate Registrar shall refuse to
register any such transfer, sale, pledge or other disposition, unless the
proposed transferee shall have delivered to the Owner Trustee, the Certificate
Registrar, the Securities Administrator and the Indenture Trustee a certificate
substantially in the form of Exhibit H hereto certifying that, following such
transfer, it will be a Single Owner. Notwithstanding the foregoing, the
Certificate may be pledged to secure indebtedness and may be the subject of
repurchase agreements treated by the Single Owner as secured indebtedness for
federal income tax purposes, provided that, for the avoidance of doubt, the
Certificates may not be transferred by the related lender under any such
indebtedness or repurchase agreement upon a default under such indebtedness
or
agreement except in accordance with the foregoing.
Following
the REMIC Conversion, no transfer, sale, pledge or other disposition of a
Certificate or interest therein shall be made, and the Certificate Registrar
shall refuse to register any such transfer, sale, pledge or other disposition,
unless the transferee shall have delivered to the Owner Trustee, the Certificate
Registrar, the Securities Administrator, the REMIC Class A Indenture Trustee
and
the Underlying REMIC Trust Trustee such representations, certifications and
opinions of nationally recognized tax counsel as they may require to ensure
that
that transfer will not result in the imposition of any tax on any REMIC or
adversely affect the REMIC status of the Trust or the Underlying REMIC Trust.
In
addition, the Certificate shall not be held by any Person that cannot own an
interest in any residual interest in the Underlying REMIC Trust. The Certificate
shall not be held by more than one Holder.
Section
3.05. Mutilated,
Destroyed, Lost or Stolen Certificates.
If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar,
or
if the Certificate Registrar shall receive evidence to its satisfaction of
the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity
as
may be required by them to save each of them harmless, then in the absence
of
notice to the Certificate Registrar or the Owner Trustee that such Certificate
has been acquired by a protected purchaser, the Owner Trustee shall execute
on
behalf of the Trust and the Owner Trustee or the Certificate Registrar, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of any new Certificate under
this
Section 3.05, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any expenses of the Owner Trustee or the
Certificate Registrar (including fees and expenses of counsel) and any tax
or
other governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section 3.05 shall constitute
conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section
3.06. Persons
Deemed Certificateholders.
Prior
to due presentation of a Certificate for registration of transfer, the Owner
Trustee, the Certificate Registrar or any Certificate Paying Agent may treat
the
Person in whose name any Certificate is registered in the Certificate Register
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 5.02 and for all other purposes whatsoever, and none of
the
Trust, the Owner Trustee, the Certificate Registrar or any Certificate Paying
Agent shall be bound by any notice to the contrary.
Section
3.07. Access
to List of Certificateholders' Names and Addresses.
The
Certificate Registrar shall furnish or cause to be furnished to the Depositor,
the Certificate Paying Agent or the Owner Trustee, within 15 days after receipt
by the Certificate Registrar of a written request therefor from the Depositor,
the Certificate Paying Agent or the Owner Trustee, a list, in such form as
the
Depositor, the Certificate Paying Agent or the Owner Trustee, as the case may
be, may reasonably require, of the names and addresses of the Certificateholders
as of the most recent Record Date. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Paying Agent, the Certificate Registrar or the Owner
Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section
3.08. Maintenance
of Office or Agency.
The
Trust shall maintain an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trust in respect of the Certificates
and the Basic Documents may be delivered. The Trust initially designates the
Corporate Trust Office of the Securities Administrator as its office for
purposes of delivery of notices. The Certificate Registrar shall give prompt
written notice to the Depositor, the Certificate Paying Agent, the
Certificateholders of any change in the location of the Certificate Register
or
any such office or agency.
Section
3.09. Certificate
Paying Agent.
(a)
The
Certificate Paying Agent shall make distributions to Certificateholders from
the
Certificate Distribution Account on behalf of the Trust in accordance with
the
provisions of the Certificates and Section 5.01 hereof from payments remitted
to
the Certificate Paying Agent by the Securities Administrator pursuant to Section
3.03 of the Indenture. The Trust hereby appoints the Securities Administrator
as
Certificate Paying Agent and the Securities Administrator hereby accepts such
appointment and further agrees that it will be bound by the provisions of this
Trust Agreement relating to the Certificate Paying Agent and shall:
(i) hold
all
sums held by it for the payment of amounts due with respect to the Certificates
in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein
provided;
(ii) give
the
Owner Trustee notice of any default by the Trust of which a Responsible Officer
of the Certificate Paying Agent has actual knowledge in the making of any
payment required to be made with respect to the Certificates;
(iii) at
any
time during the continuance of any such default, upon the written request of
the
Owner Trustee forthwith pay to the Owner Trustee on behalf of the Trust all
sums
so held in Trust by such Certificate Paying Agent;
(iv) not
resign from its position as Certificate Paying Agent except that it shall
immediately resign as Certificate Paying Agent and forthwith pay to the Owner
Trustee on behalf of the Trust all sums held by it in trust for the payment
of
Certificates if at any time it ceases to meet the standards under this Section
3.09 required to be met by the Certificate Paying Agent at the time of its
appointment;
(v) comply
with all requirements of the Code with respect to the withholding from any
payments made by it on any Certificates of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting requirements in
connection therewith; and
(vi) not
institute bankruptcy proceedings against the Issuing Entity in connection with
this Trust Agreement.
(b) The
Trust
may revoke such power and remove the Certificate Paying Agent if it determines
in its sole discretion that the Certificate Paying Agent shall have failed
to
perform its obligations under this Trust Agreement in any material respect.
In
the event that ▇▇▇▇▇ Fargo Bank, N.A. shall no longer be the Securities
Administrator and the Certificate Paying Agent under this Trust Agreement and
Paying Agent under the Indenture, the Owner Trustee shall appoint a successor
to
act as Certificate Paying Agent (which shall be a bank or trust company) and
which shall also be the successor Paying Agent under the Indenture. The Owner
Trustee shall cause such successor Certificate Paying Agent or any additional
Certificate Paying Agent appointed by the Owner Trustee to execute and deliver
to the Owner Trustee an instrument to the effect set forth in Section 3.09(a)
as
it relates to the Certificate Paying Agent. The Certificate Paying Agent shall
return all unclaimed funds to the Trust and upon removal of a Certificate Paying
Agent such Certificate Paying Agent shall also return all funds in its
possession to the Trust. The provisions of Sections 6.01, 6.04, 6.05, 6.06,
6.07, 6.08 and 7.01 shall apply to the Certificate Paying Agent to the same
extent applicable to the Owner Trustee except where the context requires
otherwise. Any reference in this Agreement to the Certificate Paying Agent
shall
include any co-paying agent unless the context requires otherwise.
(c) The
Certificate Paying Agent shall establish and maintain with itself a trust
account (the “Certificate Distribution Account”) in which the Certificate Paying
Agent shall deposit, on the same day as it is received from the Securities
Administrator, each remittance received by the Certificate Paying Agent with
respect to payments made pursuant to the Indenture. The Certificate Paying
Agent
shall make all distributions to Certificates, from moneys on deposit in the
Certificate Distribution Account, in accordance with Section 5.01 hereof. The
funds in the Certificate Distribution Account shall be held
uninvested.
ARTICLE
IV
Authority
and Duties of Owner Trustee
Section
4.01. General
Authority.
The
Owner Trustee is authorized and directed to execute and deliver the Basic
Documents to which the Trust is to be a party and each certificate or other
document attached as an exhibit to or contemplated by the Basic Documents to
which the Trust is to be a party and any amendment or other agreement or
instrument described herein, as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents.
Section
4.02. General
Duties.
It
shall be the duty of the Owner Trustee to discharge (or cause to be discharged)
all of its responsibilities pursuant to the terms of this Trust Agreement and
the Basic Documents to which the Trust is a party and to administer the Trust
in
the interest of the Certificateholders, subject to the Basic Documents and
in
accordance with the provisions of this Trust Agreement.
Section
4.03. Action
upon Instruction.
(a)
Subject
to Article IV and in accordance with the terms of the Basic 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) Notwithstanding
the foregoing, the Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely
to
result in liability on the part of the Owner Trustee or is contrary to the
terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever
the Owner Trustee is required to decide between alternative courses of action
permitted or required by the terms of this Trust Agreement or under any Basic
Document, or in the event that the Owner Trustee is unsure as to the application
of any provision of this Trust Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this Trust
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take
with respect to a particular set of facts, the Owner Trustee shall promptly
give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificateholders, the Owner Trustee shall
not be liable on account of such action to any Person. If the Owner Trustee
shall not have received appropriate instruction within 10 days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action not inconsistent with this
Trust Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for such action or inaction.
Section
4.04. No
Duties Except as Specified under Specified Documents or in
Instructions.
The
Owner Trustee shall not have any duty or obligation to manage, make any payment
with respect to, register, record, sell, dispose of, or otherwise deal with
the
Owner Trust Estate, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Owner Trustee is a party, except as expressly provided (i) in accordance with
the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Trust Agreement, (ii) in accordance with the Basic Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 4.03; and no implied duties or obligations shall
be
read into this Trust Agreement or any Basic Document against the Owner Trustee.
The Owner Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at anytime or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Trust Agreement or any Basic Document. The
Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Owner Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the
Owner
Trust Estate.
Section
4.05. Restrictions.
(a)
The
Owner Trustee or the Depositor (or an Affiliate thereof) shall not take any
action (x) that is inconsistent with the purposes of the Trust set forth in
Section 2.03, or (y) that, to the actual knowledge of the Owner Trustee based
on
an Opinion of Counsel rendered by a law firm generally recognized to be
qualified to opine concerning the tax aspects of asset securitization, (1)
prior
to the REMIC Conversion, would result in the Trust becoming taxable as a
corporation for federal income tax purposes or failing to maintain its status
as
a disregarded entity for federal income tax purposes, and (2) may adversely
affect any REMIC created after the REMIC Conversion. The Certificateholders
shall not direct the Owner Trustee to take action that would violate the
provisions of this Section 4.05.
(b) The
Owner
Trustee shall not convey or transfer any of the Trust's properties or assets,
including those included in the Owner Trust Estate, to any person unless (i)(a)
it shall have received an Opinion of Counsel rendered by a law firm generally
recognized to be qualified to opine concerning the tax aspects of asset
securitization to the effect that such transaction will not have any material
adverse tax consequence to the Trust or any Certificateholder and (b) such
conveyance or transfer shall not violate the provisions of Section 3.12(b)
of
the Indenture or (ii) such conveyance or transfer is made in connection with
a
REMIC Conversion as set forth in this Trust Agreement.
Notwithstanding
the foregoing, the Owner Trustee shall permit the Issuing Entity to undertake
any of the activities contemplated herein in connection with a REMIC Conversion,
as described in Section 11.01 herein.
Section
4.06. Prior
Notice to Certificateholders with Respect to Certain Matters.
With
respect to the following matters, the Owner Trustee shall not take action unless
at least 30 days before the taking of such action, the Owner Trustee shall
have
notified the Certificateholders in writing of the proposed action and the
Certificateholders shall not have notified the Owner Trustee in writing prior
to
the 30th day after such notice is given that such Certificateholders have
withheld consent or provided alternative direction:
(a) the
initiation of any claim or lawsuit by the Trust (except claims or lawsuits
brought in connection with the collection of cash distributions due and owing
under the Mortgage Loans) and the compromise of any action, claim or lawsuit
brought by or against the Trust (except with respect to the aforementioned
claims or lawsuits for collection of cash distributions due and owing under
the
Mortgage Loans);
(b) the
election by the Trust to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Statutory Trust
Statute);
(c) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is required;
(d) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is not required and such amendment materially
adversely affects the interest of the Certificateholders; and
(e) the
appointment pursuant to the Indenture of a successor Note Registrar, Paying
Agent or Indenture Trustee or pursuant to this Trust Agreement of a successor
Certificate Registrar or Certificate Paying Agent or the consent to the
assignment by the Note Registrar, Paying Agent, Indenture Trustee, Certificate
Registrar or Certificate Paying Agent of its obligations under the Indenture
or
this Trust Agreement, as applicable.
Section
4.07. Action
by Certificateholders with Respect to Certain Matters.
The
Owner Trustee shall not have the power, except upon the direction of the
Certificateholders to, except as expressly provided in the Basic Documents,
sell
the Mortgage Loans after the termination of the Indenture. The Owner Trustee
shall take the actions referred to in the preceding sentence only upon written
instructions signed by the Certificateholders.
Section
4.08. Action
by Certificateholders with Respect to Bankruptcy.
The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the consent of the Owner Trustee and the delivery to
the
Owner Trustee by each such Certificateholder of a certificate certifying that
such Certificateholder reasonably believes that the Trust is insolvent. This
paragraph shall survive for one year following termination of this Trust
Agreement.
Section
4.09. Restrictions
on Certificateholders' Power.
The
Certificateholders shall not direct the Owner Trustee to take or to refrain
from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Trust Agreement or any of the
Basic
Documents or would be contrary to Section 2.03, nor shall the Owner Trustee
be
obligated to follow any such direction, if given.
Section
4.10. Majority
Control.
Except
as expressly provided herein, any action that may be taken by the
Certificateholders under this Trust Agreement may be taken by the Holders of
Certificates evidencing not less than a majority Percentage Interest of the
Certificates. Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Trust Agreement shall be effective
if signed by Holders of Certificates evidencing not less than a majority
Percentage Interest of the Certificates at the time of the delivery of such
notice.
Section
4.11. Optional
Redemption.
Upon
receipt of written instructions provided to the Securities Administrator by
the
Certificateholder, the Issuing Entity shall redeem the Notes in accordance
with
Section 8.06 of the Indenture and the Securities Administrator shall provide
all
necessary notices on behalf of the Issuing Entity to effect the foregoing,
provided that such Holder shall deposit with the Securities Administrator an
amount equal to the aggregate redemption price specified under Section 8.06
of
the Indenture. The Issuing Entity shall not have the power to exercise the
right
to redeem the Notes pursuant to Section 8.06 of the Indenture, except as
provided above.
Section
4.12. Optional
Purchase of Certain Mortgage Loans.
The
Certificateholder will have the option to purchase, at any one time, up to
1.00%
(and in any case, at least five (5) Mortgage Loans) of the Mortgage Loans,
by
aggregate Scheduled Principal Balance of the Mortgage Loans as of such date,
at
a purchase price equal to the Repurchase Price. The Mortgage Loans that may
be
purchased by the Certificateholder pursuant to this paragraph will be selected
by the Certificateholder in its sole discretion. If at any time the
Certificateholder exercises such option, it shall immediately notify or cause
to
be notified the Indenture Trustee and the Custodian by a certification in the
form of Exhibit B (which certification shall include a statement to the effect
that all amounts required to be deposited in the Collection Account pursuant
to
Section 3.06 have been or will be so deposited) of an Officer of the
Certificateholder and shall request delivery to it of the Mortgage File. Upon
receipt of such certification and request, the Custodian as agent for the
Indenture Trustee shall promptly release the related Mortgage Files to the
Certificateholder. Notwithstanding the foregoing, following a REMIC Conversion,
the aforementioned optional repurchase right will terminate.
ARTICLE
V
Application
of Trust Funds
Section
5.01. Distributions.
(a)
On each
Payment Date, the Certificate Paying Agent shall in accordance with the
directions of the Securities Administrator given pursuant to the Indenture
distribute to the Certificateholders, on a pro rata basis based on the
Certificate Percentage Interests thereof, all funds on deposit in the
Certificate Distribution Account and available therefor (as provided in Section
3.03 of the Indenture) for such Payment Date as reduced by any amount owing
to
the Owner Trustee hereunder and any Expenses of the Trust remaining
unpaid.
(b) In
the
event that any withholding tax is imposed on the distributions (or allocations
of income) to a Certificateholder, such tax shall reduce the amount otherwise
distributable to the Certificateholder in accordance with this Section 5.01.
The
Certificate Paying Agent is hereby authorized and directed to retain or cause
to
be retained from amounts otherwise distributable to the Certificateholders
sufficient funds for the payment of any tax that is legally owed by the Trust
(but such authorization shall not prevent the Owner Trustee from contesting
any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a Certificateholder shall be treated
as
cash distributed to such Certificateholder at the time it is withheld by the
Certificate Paying Agent and remitted to the appropriate taxing authority.
If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the
Certificate Paying Agent may in its sole discretion withhold such amounts in
accordance with this paragraph (b).
(c) Distributions
to Certificateholders shall be subordinated to the creditors of the Trust,
including the Noteholders.
Section
5.02. Method
of Payment.
Subject
to Section 8.01(c), distributions required to be made to Certificateholders
on
any Payment Date as provided in Section 5.01 shall be made to each
Certificateholder of record on the preceding Record Date by wire transfer,
in
immediately available funds, to the account of such Holder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided to the Certificate Registrar appropriate written instructions
at
least five Business Days prior to such Payment Date or, if not, by check mailed
to such Certificateholder at the address of such Holder appearing in the
Certificate Register.
Section
5.03. Tax
Returns.
The
Securities Administrator shall (a) maintain (or cause to be maintained) the
books of the Trust on a calendar year basis using the accrual method of
accounting, (b) deliver to the Securities Administrator to be forwarded to
each
Certificateholder as may be required by the Code and applicable Treasury
regulations, such information as may be required to enable each
Certificateholder to prepare its federal and state income tax returns, (c)
prepare and file or cause to be prepared and filed such tax returns relating
to
the Trust, other than any taxable mortgage pool tax return, as may be required
by the Code and applicable Treasury regulations (making such elections as may
from time to time be required or appropriate under any applicable state or
federal statutes, rules or regulations) and (d) collect or cause to be collected
any withholding tax in accordance with Section 5.01 of this Trust Agreement
with
respect to income or distributions to Certificateholders and prepare or cause
to
be prepared the appropriate forms relating thereto; provided, however, that
the
Securities Administrator shall not be required to (x) prepare and file
corporation tax returns on behalf of the Trust, (y) calculate and/or report
and
“excess inclusions” with respect to the Certificates, or (z) compute the Issuing
Entity’s gross income, in each case, unless a TMP Trigger Event has occurred;
and provided further that the Securities Administrator shall not be required
to
prepare and file partnership tax returns or any other tax returns on behalf
of
the Issuing Entity or do any additional tax work caused by any change in the
tax
treatment of the Notes from the treatment contemplated hereunder, unless the
Securities Administrator receives (i) an Opinion of Counsel reasonably
satisfactory to it (which shall not be at the Securities Administrator's
expense, but shall be at the expense of the Depositor or other party furnishing
such opinion or the party initiating the REMIC Conversion) as to the necessity
of such filings or work, and (ii) reasonable additional compensation for the
preparation and filing of such additional returns or any such additional tax
work. With respect to any taxable mortgage pool tax return or REMIC tax return,
the Person initiating the REMIC
Conversion at its expense shall cause the appropriate tax returns to be prepared
and filed. The Issuing Entity hereby grants permission to the Securities
Administrator to sign, to the extent permitted by law, all tax and information
returns prepared by the Securities Administrator pursuant to this Section 5.03
at the request of the Securities Administrator, and in doing so the Owner
Trustee and the Certificateholders shall rely entirely upon, and shall have
no
liability for information or calculations provided by, the Securities
Administrator.
Section
5.04. Statements
to Certificateholders.
On each
Payment Date, the Securities Administrator shall make available to each
Certificateholder the statement or statements provided to the Owner Trustee
by
the Securities Administrator pursuant to Section 7.04 of the Indenture with
respect to such Payment Date.
ARTICLE
VI
Concerning
the Owner Trustee
Section
6.01. Acceptance
of Trusts and Duties.
The
Owner Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Trust
Agreement. The Owner Trustee and the Certificate Paying Agent also agree to
disburse all moneys actually received by each of them constituting part of
the
Owner Trust Estate upon the terms of the Basic Documents and this Trust
Agreement. The Owner Trustee shall not be answerable or accountable hereunder
or
under any Basic Document under any circumstances, except (i) for its own willful
misconduct, gross negligence or bad faith or grossly negligent failure to act
or
(ii) in the case of the inaccuracy of any representation or warranty contained
in Section 6.03 expressly made by the Owner Trustee. In particular, but not
by
way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) The
Owner
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in accordance with the instructions of the Certificateholders or
any
other Person permitted under this Trust Agreement;
(b) No
provision of this Trust Agreement or any Basic Document shall require the Owner
Trustee to expend or risk funds or otherwise incur any financial liability
in
the performance of any of its rights, duties or powers hereunder or under any
Basic Document if the Owner Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(c) Under
no
circumstances shall the Owner Trustee be liable for indebtedness evidenced
by or
arising under any of the Basic Documents, including the principal of and
interest on the Notes;
(d) The
Owner
Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Trust Agreement or for the due execution hereof by the
Depositor or any other Person or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate, or for or
in
respect of the validity or sufficiency of the Basic Documents, the Notes, the
Certificates and the Owner Trustee shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to any Certificateholder,
other than as expressly provided for herein or expressly agreed to in the Basic
Documents;
(e) The
execution, delivery, authentication and performance by it of this Trust
Agreement will not require the authorization, consent or approval of, the giving
of notice to, the filing or registration with, or the taking of any other action
with respect to, any governmental authority or agency;
(f) The
Owner
Trustee shall not be liable for the default or misconduct of the Depositor,
Indenture Trustee, Certificate Registrar, Certificate Paying Agent, Securities
Administrator or the Master Servicer under any of the Basic Documents or
otherwise and the Owner Trustee shall have no obligation or liability to perform
the obligations of the Trust or the Owner Trustee under this Trust Agreement
or
the other Basic Documents that are required to be performed by the Depositor,
Indenture Trustee, Certificate Registrar, Certificate Paying Agent, Securities
Administrator or the Master Servicer under any of the Basic Documents or
otherwise.
(g) The
Owner
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it or duties imposed by this Trust Agreement, or to institute, conduct
or defend any litigation under this Trust Agreement or otherwise or in relation
to this Trust Agreement or any Basic Document, at the request, order or
direction of any of the Certificateholders, unless such Certificateholders
have
offered to the Owner Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Trust Agreement or in any Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for other
than its gross negligence or willful misconduct in the performance of any such
act.
(h) In
no
event shall the Owner Trustee be liable for any damages in the nature of
special, indirect or consequential damages, however styled, including, without
limitation, lost profits, or for any losses due to forces beyond the control
of
the Owner Trustee, including, without limitation, strikes, work stoppages,
acts
of war or terrorism, insurrection, revolution, nuclear or natural catastrophes
or acts of God and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services provided to the
Owner Trustee by third parties.
Section
6.02. Furnishing
of Documents.
The
Owner Trustee shall furnish to the Securityholders promptly upon receipt of
a
written reasonable request therefor, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Trust under the Basic Documents.
Section
6.03. Representations
and Warranties.
The
Owner Trustee hereby represents and warrants to the Depositor, for the benefit
of the Certificateholders, that:
(a) It
is a
Delaware banking corporation duly organized and validly existing in good
standing under the federal laws of the United States. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Trust Agreement;
(b) It
has
taken all corporate action necessary to authorize the execution and delivery
by
it of this Trust Agreement, and this Trust Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver
this Trust Agreement on its behalf;
(c) Neither
the execution nor the delivery by it of this Trust Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance by
it
with any of the terms or provisions hereof 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 any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound;
(d) This
Trust Agreement assuming due authorization, execution and delivery by the Owner
Trustee and the Depositor, constitutes a valid, legal and binding obligation
of
the Owner Trustee, enforceable against it in accordance with the terms hereof
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally and to
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(e) The
Owner
Trustee is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any Federal, state, municipal or governmental
agency, which default might have consequences that would materially and
adversely affect the condition (financial or other) or operations of the Owner
Trustee or its properties or might have consequences that would materially
adversely affect its performance hereunder; and
(f) No
litigation is pending or, to the best of the Owner Trustee's knowledge,
threatened against the Owner Trustee which would prohibit its entering into
this
Trust Agreement or performing its obligations under this Trust
Agreement.
Section
6.04. Reliance;
Advice of Counsel.
(a)
The
Owner Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, note, or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or 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 such
resolution has been duly adopted by such body and that the same is in full
force
and effect. As to any fact or matter the method of determination of which is
not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by
the
treasurer or other authorized officers of the relevant party, as to such fact
or
matter and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In
the
exercise or administration of the Trust hereunder and in the performance of
its
duties and obligations under this Trust Agreement or the Basic Documents, the
Owner Trustee (i) may act directly or through its agents, attorneys, custodians
or nominees (including persons acting under a power of attorney) pursuant to
agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents, attorneys, custodians
or
nominees (including persons acting under a power of attorney) if such persons
have been selected by the Owner Trustee with reasonable care, and (ii) may
consult with counsel, accountants and other skilled persons to be selected
with
reasonable care and employed by it. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
opinion or advice of any such counsel, accountants or other such Persons and
not
contrary to this Trust Agreement or any Basic Document.
Section
6.05. Not
Acting in Individual Capacity.
Except
as provided in this Article VI, in accepting the trusts hereby created
Wilmington Trust Company acts solely as Owner Trustee hereunder and not in
its
individual capacity, and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Trust Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof.
Section
6.06. Owner
Trustee Not Liable for Certificates or Related Documents.
The
recitals contained herein and in the Certificates (other than the signatures
of
the Owner Trustee on the Certificates) shall be taken as the statements of
the
Depositor, and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or
sufficiency of this Trust Agreement, of any Basic Document or of the
Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents, or of MERS or the
MERS®
System. The Owner Trustee shall at no time have any responsibility or liability
with respect to the sufficiency of the Owner Trust Estate or its ability to
generate the payments to be distributed to Certificateholders under this Trust
Agreement or the Noteholders under the Indenture, including compliance by the
Depositor, the Seller or the Mortgage Loan Seller with any warranty or
representation made under any Basic Document or in any related document or
the
accuracy of any such warranty or representation, or any action of the
Certificate Paying Agent, the Certificate Registrar, the Indenture Trustee
or
the Securities Administrator taken in the name of the Owner
Trustee.
Section
6.07. Owner
Trustee May Own Certificates and Notes.
The
Owner Trustee in its individual or any other capacity may, subject to Section
3.04, become the owner or pledgee of Certificates or Notes and may deal with
the
Depositor, the
Seller, the
Mortgage Loan Seller, the Certificate Paying Agent, the Certificate Registrar
and the Indenture Trustee in transactions with the same rights as it would
have
if it were not Owner Trustee.
Section
6.08. Payments
from Owner Trust Estate.
All
payments to be made by the Owner Trustee under this Trust Agreement or any
of
the Basic Documents to which the Owner Trustee is a party shall be made only
from the income and proceeds of the Owner Trust Estate or from other amounts
required to be provided by the Certificateholders and only to the extent that
the Owner Trust shall have received income or proceeds from the Owner Trust
Estate or the Certificateholders to make such payments in accordance with the
terms hereof. Wilmington Trust Company, in its individual capacity, shall not
be
liable for any amounts payable under this Trust Agreement or any of the Basic
Documents to which the Owner Trustee is a party.
Section
6.09. [RESERVED].
Section
6.10. Liability
of Certificate Registrar and Certificate Paying Agent.
All
provisions affording protection or rights to or limiting the liability of the
Owner Trustee, including the provisions of this Agreement permitting the Owner
Trustee to resign, merge or consolidate, shall inure as well to the Certificate
Registrar and Certificate Paying Agent.
Section
6.11. Special
Derivative Contracts.
(a) At
the
direction of the holder
of
the Certificate,
the
Trust shall enter into derivative contracts for the benefit of the
Certificateholders; provided, however, the counterparty to such derivative
contract shall not be an Affiliate of the Depositor. Any acquisition of a
derivative contract shall be accompanied by (i) an appropriate amendment to
this
Agreement, (ii) any Opinion of Counsel required by Section 10.01 and (iii)
the
consent of each Certificateholder to the acquisition of such derivative
contract. Such derivative contract shall be executed on behalf of the Trust
by
the Certificate Paying Agent.
(b) All
collections, proceeds and other amounts in respect of the derivative contracts
payable by the derivative counterparty shall be distributed to the
Certificateholders on the Payment Date following receipt thereof by the
Certificate Paying Agent.
(c) Any
derivative contract that provides for any payment obligation on the part of
the
Trust must (i) be without recourse to the assets of the Owner Trust Estate,
(ii)
contain a non-petition covenant provision from the derivative counterparty,
(iii) limit payment dates thereunder for payments, if any, to Payment Dates,
(iv) contain a provision limiting any cash payments (including termination
payments) due to the derivative counterparty on any day under such derivative
contract solely to funds available therefor in the Certificate Distribution
Account available to make payments to the Certificateholders on such Payment
Date, and (v) provide for copies of all notices and correspondence to be
provided to the Certificate Paying Agent.
(d) Each
derivative contract must (i) provide for the direct payment of any amounts
by
the derivative counterparty thereunder to the Certificate Distribution Account
at least one Business Day prior to the related Payment Date, (ii) contain an
assignment of all of the Trust’s rights (but none of its obligations) under such
derivative contract to the Owner Trustee on behalf of the Certificateholders
and
shall include an express consent by the derivative counterparty to such
assignment, (iii) provide that in the event of the occurrence of an Event of
Default, such derivative contract shall terminate upon the direction of the
Certificateholder, and (iv) prohibit the derivative counterparty from
“setting-off’ or “netting” other obligations of the Trust and its Affiliates
against such derivative counterparty’s payment obligations
thereunder.
(e) The
Seller shall determine, in its sole discretion, whether any derivative contract
conforms to the requirements of Section 6.11(c) and (d) and shall notify the
Certificate Paying Agent and the Securities Administrator of the existence
of
such derivative contract.
(f) Neither
the Mortgage Loan Seller, the Seller nor the Depositor shall have any direct
or
indirect obligation under the derivative contracts.
ARTICLE
VII
Compensation
of Owner Trustee
Section
7.01. Owner
Trustee's Fees and Expenses.
The
Owner Trustee shall receive from the Master Servicer as compensation for its
services hereunder such fees as have been separately agreed upon by the Owner
Trustee, the Seller and the Mortgage Loan Seller before the date hereof. In
the
event that the Master Servicer fails to pay such fees on any Payment Date,
the
Owner Trustee shall be entitled to such fee from funds on deposit in the Payment
Account prior to any distributions to the Noteholders on such Payment Date.
Additionally, the Owner Trustee shall be reimbursed from amounts on deposit
in
the Master Servicer Collection Account, in accordance with Section 4.05(x)
of
the Sale and Servicing Agreement for its reasonable expenses hereunder and
under
the Basic Documents, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may reasonably employ in connection with the exercise and performance
of
its rights and its duties hereunder and under the Basic Documents.
Section
7.02. Indemnification.
The
Depositor shall indemnify, defend and hold harmless the Owner Trustee and its
respective successors, assigns, agents and servants (collectively, the
“Indemnified Parties”) from and against, any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever (collectively, “Expenses”) which may at any
time be imposed on, incurred by, or asserted against any Indemnified Party
in
any way relating to or arising out of this Trust Agreement, the Basic Documents,
the Owner Trust Estate, the administration of the Owner Trust Estate or the
action or inaction of the Owner Trustee hereunder; provided, that:
(i) the
Depositor shall not be liable for or required to indemnify an Indemnified Party,
as applicable, from and against Expenses arising or resulting from such
Indemnified Party's own willful misconduct, gross negligence or bad faith or,
as
to the Owner Trustee, as a result of any inaccuracy of a representation or
warranty of the Owner Trustee contained in Section 6.03 expressly made by the
Owner Trustee;
(ii) with
respect to any such claim, the Indemnified Party shall have given the Depositor
written notice thereof promptly after the Indemnified Party shall have actual
knowledge thereof; provided, however, that failure to give such notice shall
not
affect the indemnification of the Indemnified Party except to the extent the
Depositor is materially prejudiced by such failure;
(iii) while
maintaining control over its own defense, the Depositor shall consult with
the
Indemnified Party in preparing such defense; and
(iv) notwithstanding
anything in this Agreement to the contrary, the Depositor shall not be liable
for settlement of any claim by an Indemnified Party entered into without the
prior consent of the Depositor which consent shall not be unreasonably
withheld.
The
indemnities contained in this Section shall survive the resignation or removal
of the Owner Trustee or the termination of this Trust Agreement. In addition,
upon written notice to the Owner Trustee and with the consent of the Owner
Trustee which consent shall not be unreasonably withheld, the Depositor has
the
right to assume the defense of any claim, action or proceeding against the
Owner
Trustee.
The
Mortgage Loan Seller agrees to indemnify the Indemnified Parties for Expenses
for which the Depositor is required to indemnify the Indemnified Parties
pursuant to this Section 7.02, other than (x) any Expenses required to be
covered by the Master Servicer pursuant to Section 5.03 of the Sale and
Servicing Agreement or (y) and any Expenses actually paid by the Depositor
in
accordance with this Section 7.02.
ARTICLE
VIII
Termination
of Trust Agreement
Section
8.01. Termination
of Trust Agreement.
(a)
This
Trust Agreement (other than Article VII and Section 10.08) shall terminate
and
the Trust shall dissolve, wind up and terminate in accordance with Section
3808
of the Statutory Trust Statute and be of no further force or effect upon the
earlier of (i) the final distribution of all moneys or other property or
proceeds of the Owner Trust Estate in accordance with the terms of the Indenture
and this Trust Agreement and (ii) the distribution of all of the assets of
the
Owner Trust Estate, in accordance with written instructions provided to the
Certificate Paying Agent by the Certificateholder, following the optional
redemption of the Notes effected by the Certificateholder pursuant to Section
8.06 of the Indenture; provided in each case that all amounts owing to the
Noteholders to the extent payable from the Owner Trust Estate or proceeds
thereof have been paid in full and that all obligations under the Indenture
have
been discharged. The bankruptcy, liquidation, dissolution, death or incapacity
of any Certificateholder shall not (x) operate to terminate this Trust Agreement
or the Trust or (y) entitle such Certificateholder's legal representatives
or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or the Owner
Trust
Estate or (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except
as
provided in Section 8.01(a), neither the Depositor nor any Certificateholder
shall be entitled to revoke or terminate the Trust.
(c) Notwithstanding
anything to the contrary herein, the Trust shall not terminate upon the
occurrence of a TMP Trigger Event or the
REMIC
Conversion.
(d) Notice
of
any termination of the Trust, specifying the Payment Date upon which
Certificateholders shall surrender their Certificates to the Certificate Paying
Agent for payment of the final distribution and cancellation, shall be given
by
the Certificate Paying Agent by letter to Certificateholders mailed within
five
Business Days of receipt of notice of the final payment on the Notes from the
Securities Administrator, stating (i) the Payment Date upon or with respect
to
which final payment of the Certificates shall be made upon presentation and
surrender of the Certificates at the office of the Certificate Paying Agent
therein designated, (ii) the amount of any such final payment and (iii) that
the
Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the Certificates
at
the office of the Certificate Payment Agent therein specified. The Certificate
Paying Agent shall give such notice to the Owner Trustee and the Certificate
Registrar at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Certificate Paying Agent
shall cause to be distributed to Certificateholders amounts distributable on
such Payment Date pursuant to Section 5.01.
In
the
event that all of the Certificateholders shall not surrender their Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Certificate Paying Agent shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if within
one year following the Payment Date on which final payment of the Certificates
was to have been made pursuant to Section 3.03 of the Indenture, all the
Certificates shall not have been surrendered for cancellation, the Certificate
Paying Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of
the
funds and other assets that shall remain subject to this Trust Agreement. Any
funds remaining in the Certificate Distribution Account after exhaustion of
such
remedies shall be distributed by the Certificate Paying Agent to the
Depositor.
(e) Upon
the
winding up of the Trust and its termination, the Owner Trustee shall, at the
direction and expense of the holder of the Owner Trust Certificate, cause the
Certificate of Trust to be cancelled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of Section 3810(c)
of the Statutory Trust Statute.
ARTICLE
IX
Successor
Owner Trustees and Additional Owner Trustees
Section
9.01. Eligibility
Requirements for Owner Trustee.
The
Owner Trustee shall at all times be a corporation satisfying the provisions
of
Section 3807(a) of the Statutory Trust Statute; authorized to exercise corporate
trust powers; having a combined capital and surplus of at least $50,000,000
and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) a rating of at least Baa3 by Moody's and/or
at least BBB- by Standard and Poor’s or is otherwise acceptable to the Rating
Agencies. If such corporation shall publish reports of condition at least
annually pursuant to law or to the requirements of the aforesaid supervising
or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital
and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance
with
the provisions of this Section 9.01, the Owner Trustee shall resign immediately
in the manner and with the effect specified in Section 9.02.
Section
9.02. Replacement
of Owner Trustee.
The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving 30 days prior written notice thereof to the Depositor. Upon
receiving such notice of resignation, the Depositor shall promptly appoint
a
successor Owner Trustee, by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and to the
successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of
such
notice of resignation, the resigning Owner Trustee may petition any court of
competent jurisdiction for the appointment of a successor Owner
Trustee.
If
at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 9.01 and shall fail to resign after written request
therefor by the Depositor, or if at any time the Owner Trustee shall be legally
unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of
the
Owner Trustee or of its property shall be appointed, or any public officer
shall
take charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
may remove the Owner Trustee.
Any
resignation or removal of the Owner Trustee and appointment of a successor
Owner
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 9.03 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Depositor shall provide notice of such resignation
or removal of the Owner Trustee to each of the Rating Agencies.
Section
9.03. Successor
Owner Trustee.
Any
successor Owner Trustee appointed pursuant to Section 9.02 shall execute,
acknowledge and deliver to the Indenture Trustee and to its predecessor Owner
Trustee an instrument accepting such appointment under this Trust Agreement,
and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective, and such successor Owner Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Trust Agreement, with
like
effect as if originally named as Owner Trustee. The predecessor Owner Trustee
shall upon payment of its fees and expenses deliver to the successor Owner
Trustee all documents and statements and monies held by it under this Trust
Agreement; and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully
and
certainly vesting and confirming in the successor Owner Trustee all such rights,
powers, duties and obligations.
No
successor Owner Trustee shall accept appointment as provided in this Section
9.03 unless at the time of such acceptance such successor Owner Trustee shall
be
eligible pursuant to Section 9.01.
Upon
acceptance of appointment by a successor Owner Trustee pursuant to this Section
9.03, the Owner Trustee shall mail notice thereof to all Certificateholders,
the
Indenture Trustee, the Noteholders and the Rating Agencies.
Section
9.04. 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 shall be 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 hereunder, without
the execution or filing of any instrument or any further act on the part of
any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger
or
consolidation to the Rating Agencies.
Section
9.05. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Trust Agreement, at any time,
for
the purpose of meeting any legal requirements of any jurisdiction in which
any
part of the Owner Trust Estate may at the time be located, the Owner Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons to act as co-trustee, jointly with the Owner Trustee, or
as
separate trustee or trustees, of all or any part of the Owner Trust Estate,
and
to vest in such Person, in such capacity, such title to the Trust or any part
thereof and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Owner Trustee may consider
necessary or desirable. No co-trustee or separate trustee under this Trust
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 9.01 and no notice of the appointment of
any
co-trustee or separate trustee shall be required pursuant to Section
9.03.
Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a) All
rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Owner Trustee joining in such act), except to the extent that under any law
of
any jurisdiction in which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including the
holding of title to the Owner Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Owner Trustee;
(b) No
trustee under this Trust Agreement shall be personally liable by reason of
any
act or omission of any other trustee under this Trust Agreement;
and
(c) The
Owner
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee.
Any
notice, request or other writing given to the Owner Trustee shall be deemed
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 this Trust Agreement and 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 therein, subject to all the provisions
of this Trust Agreement, specifically including every provision of this Trust
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with
the
Owner Trustee.
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 under or in respect of this Trust
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a
new
or successor co-trustee or separate trustee.
ARTICLE
X
Miscellaneous
Section
10.01. Amendments.
(a)
This
Trust Agreement may be amended from time to time by the parties hereto as
specified in this Section, provided that any amendment, except as provided
in
subparagraph (e) below, be accompanied by an Opinion of Counsel addressed to
the
Owner Trustee, the Certificate Registrar and the Certificate Paying Agent and
obtained by the Depositor to the effect that such amendment (i) complies with
the provisions of this Section, (ii) would not cause the Trust to be subject
to
an entity level tax for federal income tax purposes, and (iii) following the
REMIC Conversion, would cause any REMIC to be subject to tax or otherwise be
adversely affected.
(b) If
the
purpose of the amendment (as detailed therein) is to correct any mistake,
eliminate any inconsistency, cure any ambiguity or deal with any matter not
covered (i.e. to give effect to the intent of the parties and, if applicable,
to
the expectations of the Holders), it shall not be necessary to obtain the
consent of any Noteholders or Certificateholders, but the Owner Trustee, the
Certificate Registrar and the Certificate Paying Agent shall be furnished with
(A) a letter from each of the Rating Agencies that the amendment will not result
in the downgrading or withdrawal of the rating then assigned to any Note or
the
rating then assigned to any Note or (B) an Opinion of Counsel obtained by the
Depositor to the effect that such action will not adversely affect in any
material respect the interests of any Noteholders or
Certificateholders.
(c) If
the
purpose of the amendment is to prevent the imposition of any federal or state
taxes at any time that any Security is outstanding, it shall not be necessary
to
obtain the consent of any Noteholders or Certificateholders, but the Owner
Trustee, the Certificate Registrar and the Certificate Paying Agent shall be
furnished with an Opinion of Counsel obtained by the Depositor that such
amendment is necessary or helpful to prevent the imposition of such taxes and
is
not materially adverse to any Noteholders or Certificateholders or any REMIC
created upon the REMIC Conversion.
(d) If
the
purpose of the amendment is to add or eliminate or change any provision of
the
Trust Agreement other than as contemplated in (b) and (c) above, the amendment
shall require (A) an Opinion of Counsel obtained by the Depositor to the effect
that such action will not adversely affect in any material respect the interests
of any Noteholders or Certificateholders or any REMIC created upon the REMIC
Conversion and (B) either (a) a letter from each of the Rating Agencies that
the
amendment will not result in the downgrading or withdrawal of the rating then
assigned to any Note or (b) the consent of Holders of Certificates evidencing
a
majority Percentage Interest of the Certificates and the consent of Noteholders
representing at least 51% of the Note Principal Balance of the Notes; provided,
however, that no such amendment shall (i) reduce in any manner the amount of,
or
delay the timing of, payments received that are required to be distributed
on
any Certificate without the consent of the related Certificateholder, (ii)
reduce the aforesaid percentage of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders
of
all such Certificates then outstanding or (iii) change the permitted activities
of the Trust as set forth herein.
(e) If
the
purpose of the amendment is to provide for the holding of any of the
Certificates in book-entry form, it shall require the consent of Holders of
all
such Certificates then outstanding; provided, that the Opinion of Counsel
specified in subparagraph (a) above shall not be required.
(f) Promptly
after the execution of any such amendment or consent, the Depositor shall
furnish written notification of the substance of such amendment or consent
to
each Certificateholder, the Indenture Trustee and the Rating Agencies. It shall
not be necessary for the consent of Certificateholders, Noteholders or the
Indenture Trustee pursuant to this Section 10.01 to approve the particular
form
of any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents
(and
any other consents of Certificateholders provided for in this Trust Agreement
or
in any other Basic Document) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(g) In
connection with the execution of any amendment to any agreement to which the
Trust is a party, other than this Trust Agreement, the Owner Trustee, the
Certificate Registrar and the Certificate Paying Agent shall be entitled to
receive and conclusively rely upon an Opinion of Counsel to the effect that
such
amendment is authorized or permitted by the documents subject to such amendment
and that all conditions precedent in the Basic Documents for the execution
and
delivery thereof by the Trust or the Owner Trustee, as the case may be, have
been satisfied.
(h) No
amendment or agreement affecting the rights or duties of the Owner Trustee,
Certificate Registrar or the Certificate Paying Agent may be entered into
without the consent of the affected party. The Owner Trustee shall not be
required to enter into any amendment which adversely affects its rights, duties
or immunities under this Trust Agreement or the other Basic
Documents.
(i) If
the
purpose of the amendment is to add or eliminate or change any provision relating
to the REMIC Conversion or activities related thereto, such amendment shall
not
require the consent of the Noteholders or Certificateholders, provided, however,
the Owner Trustee shall receive written direction from the Certificateholder
to
enter into such amendment. The Owner Trustee may rely on such direction in
entering into such amendment and is under no duty or obligation to determine
compliance with any requirements otherwise set forth herein that may be relevant
to entering into such amendment.
Promptly
after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of State
of
the State of Delaware.
Section
10.02. No
Legal Title to Owner Trust Estate.
The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate solely by virtue of their status as a Certificateholder. The
Certificateholders shall be entitled to receive distributions with respect
to
their undivided beneficial interest therein only in accordance with Articles
V
and VIII. No transfer, by operation of law or otherwise, of any right, title
or
interest of the Certificateholders to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Trust Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to
it of
legal title to any part of the Owner Trust Estate.
Section
10.03. Limitations
on Rights of Others.
Except
for Section 2.07, the provisions of this Trust Agreement are solely for the
benefit of the Owner Trustee, the Depositor, the Certificateholders and, to
the
extent expressly provided herein, the Indenture Trustee and the Noteholders,
and
nothing in this Trust Agreement (other than Section 2.07), whether express
or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of
this
Trust Agreement or any covenants, conditions or provisions contained
herein.
Section
10.04. Notices.
(a)
Unless
otherwise expressly specified or permitted by the terms hereof, all notices
shall be in writing and shall be deemed given upon receipt, to the Owner Trustee
at: Wilmington
Trust Company,
▇▇▇▇▇▇
Square North ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇;
Attention: Corporate Trust Services; to the Depositor at: Bear ▇▇▇▇▇▇▇ Asset
Backed Securities I LLC, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel; to the Indenture Trustee, the Certificate Registrar
and the Certificate Paying Agent at its Corporate Trust Office; to Fitch Inc.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; to ▇▇▇▇▇'▇
Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
or, as to each party, at such other address as shall be designated by such
party
in a written notice to each other party.
(b) Any
notice required or permitted to be given to a Certificateholder shall be given
by first-class mail, postage prepaid, at the address of such Holder as shown
in
the Certificate Register. Any notice so mailed within the time prescribed in
this Trust Agreement shall be conclusively presumed to have been duly given,
whether or not the Certificateholder receives such notice.
(c) A
copy of
any notice delivered to the Owner Trustee or the Trust shall also be delivered
to the Depositor.
Section
10.05. Severability.
Any
provision of this Trust Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Section
10.06. Separate
Counterparts.
This
Trust Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all
such
counterparts shall together constitute but one and the same
instrument.
Section
10.07. Successors
and Assigns.
All
representations, warranties, covenants and agreements contained herein shall
be
binding upon, and inure to the benefit of, each of the Depositor, the Owner
Trustee and its successors, and each Certificateholder and its successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Certificateholder shall
bind
the successors and assigns of such Certificateholder.
Section
10.08. No
Petition.
The
Owner Trustee, by entering into this Trust Agreement and each Certificateholder,
by accepting a Certificate, or holder of a residual interest in any REMIC
created in connection with a REMIC Conversion, hereby covenant and agree that
they will not at any time institute against the Depositor or the Trust or any
trust created in connection with a REMIC Conversion, or join in any institution
against the Depositor or the Trust or any trust created in connection with
a
REMIC Conversion of, any bankruptcy proceedings under any United States federal
or state bankruptcy or similar law in connection with any obligations to the
Certificates, the Notes, this Trust Agreement or any of the Basic Documents.
This Section shall survive for one year following the termination of this Trust
Agreement.
Section
10.09. No
Recourse.
Each
Certificateholder by accepting a Certificate acknowledges that such
Certificateholder's Certificates represent beneficial interests in the Trust
only and do not represent interests in or obligations of the Depositor, the
Seller, the Mortgage Loan Seller, the Owner Trustee, the Indenture Trustee,
the
Certificate Registrar, the Certificate Paying Agent or any Affiliate thereof
and
no recourse may be had against such parties or their assets, except as may
be
expressly set forth or contemplated in this Trust Agreement, the Certificates
or
the Basic Documents.
Section
10.10. Headings.
The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section
10.11. GOVERNING
LAW.
THIS
TRUST AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
Section
10.12. Integration.
This
Trust Agreement constitutes the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersedes all prior agreements
and
understandings pertaining thereto.
Section
10.13. Obligations.
The
execution and delivery of this Trust Agreement by ▇▇▇▇▇ Fargo Bank, N.A. is
not
in its individual capacity but solely in its capacity as Securities
Administrator, and solely for purposes of its appointment and agreement to
serve
as Certificate Registrar and Certificate Paying Agent. The Securities
Administrator shall have no duties or obligations under this Agreement except
for those duties expressly set forth in this Agreement as duties of the
Certificate Registrar or Certificate Paying Agent, and no implied duties shall
be read into this Agreement on the part of the Securities Administrator (or
Certificate Paying Agent or Certificate Registrar). In entering into this
Agreement and with respect to all matters arising under this Agreement, the
Securities Administrator shall enjoy and be protected by all of the rights,
powers, benefits, immunities, indemnities and other protections granted to
it
under Article VI of the Indenture, whether acting in its capacity as Certificate
Registrar or as Certificate Paying Agent.
ARTICLE
XI
TMP
Trigger Event and REMIC Conversion
Section
11.01. Events
to Occur Upon TMP Trigger Event.
(a)
Upon the receipt by the Owner Trustee, the Depositor, the Securities
Administrator and the Indenture Trustee of a written notice substantially in
the
form of Exhibit L to this Agreement from the Single Owner of their intent to
sell or otherwise transfer the Certificates or the Privately Offered Notes
in a
transaction such that, following the sale or other transfer, there will not
be a
Single Owner, a TMP Trigger Event shall occur.
(b) Upon
a
TMP Trigger Event and in furtherance of a REMIC Conversion, the Issuing Entity
shall request that the Indenture Trustee release any REO Properties and any
other Non-REMIC Eligible Assets from the lien of the Indenture and the Issuing
Entity shall transfer such portion of the Trust Estate to the Servicer. The
Indenture Trustee shall execute instruments to release such property from the
lien of the Indenture, or convey the Indenture Trustee’s interest in the same,
in accordance with Section 8.05 of the Indenture.
(c) Pursuant
to the Sale and Servicing Agreement and the ▇▇▇▇▇ Fargo Servicing Agreement,
prior to the REMIC Conversion, the Master Servicer shall cause the Servicer
to
(i) solicit at least two bids for the REO Properties and any other Non-REMIC
Eligible Assets then existing in the Trust Estate, at least one of which shall
be sufficient not to result in the allocation of any Realized Losses to any
of
the Senior Notes and (ii) sell such REO Properties and Non-REMIC Eligible Assets
on behalf of the Issuing Entity to a third party at their fair market value.
The
Master Servicer shall, or shall cause the Servicer to, provide the Owner
Trustee, the Indenture Trustee and the Depositor with prompt notice of the
completion of such Sale. Upon completion of such Sale, the Servicer shall remit
any proceeds of such Sale to the Master Servicer pursuant to the ▇▇▇▇▇ Fargo
Servicing Agreement. Immediately upon receipt of any such proceeds, the Master
Servicer shall remit such amounts to the Securities Administrator for deposit
in
the Payment Account.
(d) On
the
Special Payment Date, the Securities Administrator shall distribute the proceeds
from the Sale described in Section 11.01(c) to the Noteholders in the manner
and
order of priority set forth in Article III of the Indenture and this Agreement
and shall allocate any Realized Losses to the Privately Offered Notes as a
result of such Sale in accordance with Section 3.24 of the
Indenture.
(e) As
a
condition to any REMIC Conversion, the Single Owner shall pay, or cause to
be
paid, any additional and ongoing expenses in connection with, or any expenses
necessary to accomplish, any REMIC Conversion to the extent not otherwise
required to be paid hereunder.
(f) The
Depositor shall cause the formation of a new trust pursuant to the Underlying
REMIC Pooling and Servicing Agreement for which one or more REMIC elections
shall be made. Upon the completion of the transfer and exchange set forth in
Section 11.01(h), the Issuing Entity shall transfer the REMIC Class A
Certificates to the Indenture Trustee in connection with the creation of the
REMIC Class A Indenture under which a REMIC election shall be made with respect
to such REMIC Class A Notes. The Noteholders shall surrender their Notes in
exchange for the corresponding classes of REMIC Class A Notes and REMIC
Privately Offered Certificates pursuant to Section 8.06 of the Indenture. The
Depositor shall cause such REMIC Class A Notes to be issued in book-entry form
to be registered in the name of a nominee designated by the Depository, and
the
REMIC Certificates to be issued in physical form, in each case in the face
amount of the corresponding Class A Notes or Privately Offered Notes in
accordance with Section 4.02 of the Indenture.
(g) Simultaneously
with a REMIC Conversion, the Indenture shall be discharged in accordance with
Sections 4.10 and 8.04 of the Indenture. In connection therewith, the assets
remaining in the Trust Estate shall be released from the lien of the
Indenture.
(h) In
connection with a REMIC Conversion, the Issuing Entity concurrently with the
execution and delivery of the new REMIC Class A Indenture and new Underlying
REMIC Trust Pooling and Servicing Agreement shall transfer and assign to the
Underlying REMIC Trust without recourse all its right, title and interest in
and
to the aforementioned items then remaining in the Trust Estate for the benefit
of the holders of the REMIC Certificates. At such time, the Depositor shall
transfer and assign in trust to the Issuing Entity without recourse all the
right, title and interest in and to the REMIC Class A Certificates for the
benefit of the holders of the REMIC Class A Notes and the new certificate then
issued by the Issuing Entity representing the residual interest in the REMIC
elected by the Issuing Entity. The Issuing Entity shall acknowledge receipt
of
the REMIC Class A Certificates and declare that it holds and will hold the
same
in trust for the exclusive use and benefit of the holders of the REMIC Class
A
Notes and such new residual certificate.
Section
11.02. Tax
Matters Regarding REMIC Status of Trust and Underlying REMIC
Trust.
(a) Following
the REMIC Conversion, the Securities Administrator shall, to the extent under
its control, conduct the affairs of the Owner Trust Estate at all times that
any
REMIC Certificates and REMIC Class A Notes are outstanding so as to maintain
the
status of each REMIC formed pursuant to this Agreement, the REMIC Class A
Indenture and Underlying REMIC Trust Pooling and Servicing Agreement, as
described above, as a REMIC under the REMIC Provisions. The Securities
Administrator shall not knowingly or intentionally take any action or omit
to
take any action that would cause the termination of the REMIC status of any
such
REMIC. The Owner Trustee shall cooperate and furnish upon the request of the
Securities Administrator any records, information and materials in its
possession relating to each such REMIC as may be necessary for the Securities
Administrator to prepare the returns, schedules and statements required to
be
furnished to the taxing authorities or REMIC Class A Noteholders or REMIC
Certificateholders with respect to each such REMIC, or to perform its other
duties relating to the tax matters of the Owner Trust Estate, as provided in
the
REMIC Class A Indenture and the Underlying REMIC Trust Pooling and Servicing
Agreement.
(b) For
federal income and tax reporting purposes, each Holder of a Certificate shall
take positions that are consistent with the intended tax treatment of the Owner
Trust Estate as one or more REMICs and the assets of the Underlying Trust REMIC
as one or more REMICs and the tax treatment expressed in the governing documents
relating thereto with regard to distributions and other transactions
contemplated therein.
Section
11.03. Acts
in Furtherance of REMIC Conversion.
Each of
the parties acknowledges and agrees that the purpose of this Article XI is
to
facilitate any REMIC Conversion upon the occurrence of a TMP Trigger Event.
Therefore, each of the parties hereto agree that it shall comply with all
reasonable requests made by any of the other parties and the Single Owner that
provides notice of a TMP Trigger Event to cause such REMIC Conversion. This
Agreement may be amended or supplemented to provide for any act necessary to
cause such REMIC Conversion as agreed upon by the parties hereto in accordance
with Article X.
IN
WITNESS WHEREOF, the Depositor and the Owner Trustee have caused their names
to
be signed hereto by their respective officers thereunto duly authorized, all
as
of the day and year first above written.
|
BEAR
▇▇▇▇▇▇▇ ASSET BACKED SECURITIES I
LLC,
as Depositor
|
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| |
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| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. | |
|
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||
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice
President
|
||
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WILMINGTON
TRUST COMPANY,
as
Owner Trustee
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
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||
|
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇
Title: Financial
Services Officer
|
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|
▇▇▇▇▇
FARGO BANK, N.A.,
acting
not individually but solely as Securities
Administrator,
Certificate Registrar and Certificate
Paying
Agent
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| |
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| By: | /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ | |
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||
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Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title: Vice
President
|
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ACKNOWLEDGED
AND AGREED
for
purposes of Section 7.02:
CS
OT I
LLC,
as
Seller
| By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
|
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|||
| Name:
▇▇▇▇▇
▇▇▇▇▇▇ Title: Managing Director |
EXHIBIT
A
Form
of
Certificate
[Face]
THIS
CERTIFICATE IS SUBORDINATE TO THE NOTES AS DESCRIBED IN THE
INDENTURE.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR,
DEPOSITOR AND OWNER TRUSTEE SHALL HAVE RECEIVED AN OPINION OF COUNSEL AS
DESCRIBED IN THE TRUST AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR
AND
DEPOSITOR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING
AS
TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER U.S.
LAW.
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 SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.04 OF THE TRUST AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR,
DEPOSITOR AND OWNER TRUSTEE SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION
LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”) (A “PLAN”), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OR (ii) IF THIS CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PLAN SUBJECT TO ERISA, OR SECTION 4975 OF THE
CODE
(OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A TRUSTEE OF ANY
SUCH PLAN, OR ANY OTHER PERSON WHO IS USING THE ASSETS OF ANY SUCH PLAN TO
EFFECT SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE
OF CERTIFICATES IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR
RESULT IN ANY PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
AND
WILL NOT SUBJECT THE DEPOSITOR, THE SELLER, THE MORTGAGE LOAN SELLER, THE
SERVICER, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR, THE SECURITIES
ADMINISTRATOR OR THE MASTER SERVICER TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION
TO THOSE UNDERTAKEN IN THE TRUST AGREEMENT, WHICH OPINION OF COUNSEL SHALL
NOT
BE AN EXPENSE OF THE DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR,
THE SECURITIES ADMINISTRATOR, THE SELLER, THE MORTGAGE LOAN SELLER, THE SERVICER
OR THE MASTER SERVICER.
PRIOR
TO A REMIC CONVERSION, NO TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF THIS
CERTIFICATE OR INTEREST THEREIN SHALL BE MADE, AND THE CERTIFICATE REGISTRAR
SHALL REFUSE TO REGISTER ANY SUCH TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION,
UNLESS THE PROPOSED TRANSFEREE SHALL HAVE DELIVERED TO THE OWNER TRUSTEE, THE
CERTIFICATE REGISTRAR, THE SECURITIES ADMINISTRATOR AND THE INDENTURE TRUSTEE
A
CERTIFICATE CERTIFYING THAT, FOLLOWING THE TRANSFER, IT WILL BE A SINGLE OWNER.
NOTWITHSTANDING THE FOREGOING, THIS CERTIFICATE MAY BE PLEDGED TO SECURED
INDEBTEDNESS AND MAY BE THE SUBJECT OF REPURCHASE AGREEMENTS TREATED BY THE
SINGLE OWNER AS SECURED INDEBTEDNESS FOR FEDERAL INCOME TAX PURPOSES, PROVIDED
THAT, FOR THE AVOIDANCE OF DOUBT, THIS CERTIFICATE MAY NOT BE TRANSFERRED BY
THE
RELATED LENDER UNDER ANY SUCH RELATED INDEBTEDNESS OR REPURCHASE AGREEMENT
UPON
A DEFAULT UNDER ANY SUCH INDEBTEDNESS OR AGREEMENT EXCEPT IN ACCORDANCE WITH
THE
FOREGOING.
FOLLOWING
THE REMIC CONVERSION, NO TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF THIS
CERTIFICATE OR INTEREST THEREIN SHALL BE MADE, AND THE CERTIFICATE REGISTRAR
SHALL REFUSE TO REGISTER ANY SUCH TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION,
UNLESS THE TRANSFEREE SHALL HAVE DELIVERED TO THE OWNER TRUSTEE, THE CERTIFICATE
REGISTRAR, THE SECURITIES ADMINISTRATOR, THE REMIC CLASS A INDENTURE TRUSTEE
AND
THE UNDERLYING REMIC TRUST TRUSTEE SUCH REPRESENTATIONS, CERTIFICATIONS AND
OPINIONS OF NATIONALLY RECOGNIZED TAX COUNSEL AS THEY MAY REQUIRE TO ENSURE
THAT
SUCH TRANSFER WILL NOT RESULT IN THE IMPOSITION OF ANY TAX ON ANY REMIC OR
ADVERSELY AFFECT THE REMIC STATUS OF THE TRUST OR THE UNDERLYING REMIC
TRUST.
THIS
CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER,
THE
MORTGAGE LOAN SELLER, THE CERTIFICATE REGISTRAR, THE CERTIFICATE PAYING AGENT,
THE DEPOSITOR, THE MASTER SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE
TRUST
AGREEMENT OR THE BASIC DOCUMENTS.
|
Certificate
No. ______
|
||
|
Cut-off
Date: February 1, 2006
|
Percentage
Interest: ___%
|
|
|
Date
of Amended and Restated Trust Agreement:
February
28, 2006
|
First
Payment Date:
March
27, 2006
|
|
|
Master
Servicer:
▇▇▇▇▇
Fargo Bank, N.A.
|
BEAR
▇▇▇▇▇▇▇ ARM TRUST SERIES 2006-1
Evidencing
a fractional undivided equity interest in the Owner Trust Estate, the property
of which consists primarily of the Mortgage Loans in Bear ▇▇▇▇▇▇▇ ARM Trust
2006-1 (the “Trust”), a Delaware statutory trust formed by BEAR ▇▇▇▇▇▇▇ ASSET
BACKED SECURITIES I LLC, as depositor, pursuant to the Trust Agreement referred
to below.
This
certifies that ____________ is
the
registered owner of the Percentage Interest represented hereby.
The
Trust
was created pursuant to a Short Form Trust Agreement, dated as of February
27,
2006, between the Depositor and Wilmington
Trust Company,
as
owner trustee (the “Owner Trustee”, which term includes any successor entity
under the Trust Agreement) (the “Short Form Trust Agreement”) as amended and
restated by the Amended and Restated Trust Agreement dated as of February 28,
2006 (as amended and supplemented from time to time, together with the Short
Form Trust Agreement, the “Trust Agreement”) among the Depositor, the Owner
Trustee and ▇▇▇▇▇ Fargo Bank, N.A., in its capacity as Securities Administrator,
a summary of certain of the pertinent provisions of which is set forth
hereinafter. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement
the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
This
Certificate is one of a duly authorized issue of Trust Certificates, Series
2006-1 (herein called the “Certificates”) issued under the Trust Agreement to
which reference is hereby made for a statement of the respective rights
thereunder of the Depositor, the Owner Trustee and the Holders of the
Certificates and the terms upon which the Certificates are executed and
delivered. All terms used in this Certificate which are defined in the Trust
Agreement shall have the meanings assigned to them in the Trust Agreement.
The
Owner Trust Estate consists of the Mortgage Loans in the Bear ▇▇▇▇▇▇▇ ARM Trust
2006-1. The rights of the Holders of the Certificates are subordinated to the
rights of the Holders of the Notes, as set forth in the Indenture.
There
will be distributed on the 25th day of each month or, if such 25th day is not
a
Business Day, the next Business Day (each, a “Payment Date”), commencing on
March 27, 2006, to the Person in whose name this Certificate is registered
at
the close of business on the last Business Day of the month immediately
preceding such Payment Date (the “Record Date”), such Certificateholder's
Percentage Interest in the amount to be distributed to Certificateholders on
such Payment Date.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Payment Account that have been
released from the Lien of the Indenture for payment hereunder and that neither
the Owner Trustee in its individual capacity nor the Depositor is personally
liable to the Certificateholders for any amount payable under this Certificate
or the Trust Agreement or, except as expressly provided in the Trust Agreement,
subject to any liability under the Trust Agreement.
The
Holder of this Certificate acknowledges and agrees that its rights to receive
distributions in respect of this Certificate are subordinated to the rights
of
the Noteholders as described in the Indenture, dated as of February 28, 2006,
among the Trust, U.S. Bank National Association, as Indenture Trustee and ▇▇▇▇▇
Fargo Bank, N.A., as Securities Administrator (the “Indenture”).
The
Depositor and each Certificateholder, by acceptance of a Certificate, agree
to
treat, and to take no action inconsistent with the treatment of, the
Certificates for federal, state and local income tax purposes as an equity
interest in the Trust.
Each
Certificateholder, by its acceptance of a Certificate, covenants and agrees
that
such Certificateholder will not at any time institute against the Depositor,
or
join in any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar
law
in connection with any obligations relating to the Certificates, the Notes,
the
Trust Agreement or any of the Basic Documents.
Distributions
on this Certificate will be made as provided in the Trust Agreement by the
Certificate Paying Agent by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon. Except
as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Certificate Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose by the Trust, as
provided in Section 3.08 of the Trust Agreement.
Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified in such
notice.
The
Mortgage Loans are subject to purchase in whole, but not in part, by the
Certificateholder on any Payment Date on or after the Payment Date on which
the
sum of the aggregate Scheduled Principal Balance of the Mortgage Loans as of
the
end of the prior Due Period is 10% or less of the Cut-off Date Scheduled
Principal Balance of the Mortgage Loans.
No
transfer, sale, pledge or other disposition of a Certificate shall be made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event
of
any such transfer (other than in connection with the initial issuance thereof
or
a transfer thereof by the Depositor or one of its Affiliates), the Certificate
Registrar or the Depositor shall prior to such transfer require the transferee
to execute (A) either (i) (a) an investment letter in substantially the form
attached to the Agreement as Exhibit C (or in such form and substance reasonably
satisfactory to the Certificate Registrar and the Depositor) which investment
letter shall not be an expense of the Trust, the Owner Trustee, the Securities
Administrator, the Certificate Registrar, the Master Servicer, the
Seller, the Mortgage Loan Seller, the Servicer
or the
Depositor and which investment letter states that, among other things, such
transferee (1) is a “qualified institutional buyer” as defined under Rule 144A,
acting for its own account or the accounts of other “qualified institutional
buyers” as defined under Rule 144A, and (2) is aware that the proposed
transferor intends to rely on the exemption from registration requirements
under
the Securities Act of 1933, as amended, provided by Rule 144A or (ii) (a) a
written Opinion of Counsel acceptable to and in form and substance satisfactory
to the Certificate Registrar and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from said Act and laws or is being made pursuant to said Act and
laws,
which Opinion of Counsel shall not be an expense of the Trust, the Owner
Trustee, the Securities Administrator, the Certificate Registrar, the Master
Servicer, the Seller, the Mortgage Loan Seller, the Servicer or the Depositor
and (b) the transferee executes a representation letter, substantially in the
form of Exhibit D to the Agreement, and the transferor executes a representation
letter, substantially in the form of Exhibit F to the Agreement, each acceptable
to and in form and substance satisfactory to the Certificate Registrar and
the
Depositor certifying the facts surrounding such transfer, which representation
letters shall not be an expense of the Trust, the Owner Trustee, the Securities
Administrator, the Certificate Registrar, the Master Servicer, the Seller,
the
Mortgage Loan Seller, the Servicer or the Depositor and (B) the Certificate
of
Non-Foreign Status (in substantially the form attached to the Agreement as
Exhibit D) acceptable to and in form and substance reasonably satisfactory
to
the Certificate Registrar and the Depositor, which certificate shall not be
an
expense of the Trust, the Owner Trustee, the Securities Administrator, the
Certificate Registrar, the Seller, the Mortgage Loan Seller, the Servicer or
the
Depositor. The Holder of a Certificate desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trust, the Owner Trustee, the Indenture
Trustee, the Certificate Paying Agent, the Certificate Registrar, the Master
Servicer, the Seller, the Mortgage Loan Seller, the Servicer and the Depositor
against any liability that may result if the transfer is not so exempt or is
not
made in accordance with such federal and state laws.
No
transfer (other than in connection with the initial issuance thereof or a
transfer thereof by the Depositor or one of its Affiliates) of Certificates
or
any interest therein shall be made to any Person unless the Depositor, the
Owner
Trustee, the Securities Administrator, the Certificate Registrar, the Seller,
the Mortgage Loan Seller, the Servicer and the Master Servicer are provided
with
an Opinion of Counsel which establishes to the satisfaction of the Depositor,
the Owner Trustee, the Securities Administrator, the Certificate Registrar,
the
Seller, the Mortgage Loan Seller, the Servicer and the Master Servicer that
the
purchase of Certificates is permissible under applicable law, will not
constitute or result in any prohibited transaction under ERISA or Section 4975
of the Code and will not subject the Depositor, the Owner Trustee, the
Securities Administrator, the Certificate Registrar, the Seller, the Mortgage
Loan Seller, the Servicer or the Master Servicer to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in the Trust Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Owner Trustee, the Securities
Administrator, the Certificate Registrar, the Seller, the Mortgage Loan Seller,
the Servicer or the Master Servicer. In lieu of such Opinion of Counsel, a
Person may provide a certification in the form of Exhibit G to the Agreement,
which the Depositor, the Owner Trustee, the Securities Administrator, the
Certificate Registrar, the Seller, the Mortgage Loan Seller, the Servicer and
the Master Servicer may rely upon without further inquiry or investigation.
Neither an Opinion of Counsel nor a certification will be required in connection
with the initial transfer of any such Certificate by the Depositor to an
affiliate of the Depositor (in which case, the Depositor or any affiliate
thereof shall have deemed to have represented that such affiliate is not a
Plan
or a Person investing Plan Assets of any Plan) and the Owner Trustee shall
be
entitled to conclusively rely upon a representation (which, upon the request
of
the Owner Trustee, shall be a written representation) from the Depositor of
the
status of such transferee as an affiliate of the Depositor.
Prior
to
a REMIC Conversion, no transfer, sale, pledge or other disposition of this
Certificate shall be made, and the Certificate Registrar shall refuse to
register any such transfer, sale, pledge or other disposition, unless the
proposed transferee shall have delivered to the Owner Trustee, the Certificate
Registrar, the Securities Administrator and the Indenture Trustee a certificate
certifying that, following such transfer, it will be a Single Owner.
Notwithstanding the foregoing, this Certificate may be pledged to secure
indebtedness and may be the subject of repurchase agreements treated by the
Single Owner as secured indebtedness for federal income tax purposes, provided
that, for the avoidance of doubt, this Certificate may not be transferred by
the
related lender under any such indebtedness or repurchase agreement upon a
default under such indebtedness or agreement except in accordance with the
foregoing.
Following
the REMIC Conversion, no transfer, sale, pledge or other disposition of a
Certificate or interest therein shall be made, and the Certificate Registrar
shall refuse to register any such transfer, sale, pledge or other disposition,
unless the transferee shall have delivered to the Owner Trustee, the Certificate
Registrar, the Securities Administrator the REMIC Class A Indenture Trustee
and
the Underlying REMIC Trust Trustee such representations, certifications and
Opinions of Counsel as they may require to ensure that that transfer will not
result in the imposition of any tax on any REMIC or adversely affect the REMIC
status of the Trust or the Underlying REMIC Trust.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual
signature, this Certificate shall not entitle the Holder hereof to any benefit
under the Trust Agreement or be valid for any purpose.
THIS
CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
IN
WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly
executed.
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BEAR
▇▇▇▇▇▇▇ ARM TRUST SERIES 2006-1
BY: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
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| Dated: February 28, 2006 | By: | |
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Authorized
Signatory
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CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.,
not
in
its individual capacity
but
solely as Certificate Registrar
| By: | |||
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Authorized
Signatory
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| or | |||
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, | ||
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as
Authenticating
Agent of the Trust
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| By: | |||
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Authorized
Signatory
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[REVERSE
OF CERTIFICATE]
The
Certificates do not represent an obligation of, or an interest in, the
Depositor, the Seller, the Mortgage Loan Seller, the Master Servicer, the
Servicer, the Securities Administrator, the Indenture Trustee, the Certificate
Paying Agent, the Certificate Registrar, the Owner Trustee or any Affiliates
of
any of them and no recourse may be had against such parties or their assets,
except as expressly set forth or contemplated herein or in the Trust Agreement
or the Basic Documents. In addition, this Certificate is not guaranteed by
any
governmental agency or instrumentality and is limited in right of payment to
certain collections and recoveries with respect to the Mortgage Loans, all
as
more specifically set forth herein and in the Trust Agreement. A copy of the
Trust Agreement may be examined by any Certificateholder upon written request
during normal business hours at the principal office of the Depositor and at
such other places, if any, designated by the Depositor.
The
Trust
Agreement permits the amendment thereof as specified below, provided that any
amendment be accompanied by an Opinion of Counsel to the Owner Trustee to the
effect that such amendment complies with the provisions of the Trust Agreement
and, if ___________________ was not the Certificateholder, would not cause
the
Trust to be subject to an entity level tax. If the purpose of the amendment
is
to correct any mistake, eliminate any inconsistency, cure any ambiguity or
deal
with any matter not covered, it shall not be necessary to obtain the consent
of
any Holder, but the Owner Trustee shall be furnished with a letter from each
of
the Rating Agencies that the amendment will not result in the downgrading or
withdrawal of the rating then assigned to any Note or the rating then assigned
to any Note. If the purpose of the amendment is to prevent the imposition of
any
federal or state taxes at any time that any Security is outstanding, it shall
not be necessary to obtain the consent of any Holder, but the Owner Trustee
shall be furnished with an Opinion of Counsel that such amendment is necessary
or helpful to prevent the imposition of such taxes and is not materially adverse
to any Holder or any REMIC created upon the REMIC Conversion. If the purpose
of
the amendment is to add or eliminate or change any provision of the Trust
Agreement, other than as specified in the preceding two sentences, the amendment
shall require either (a) a letter from each of the Rating Agencies that the
amendment will not result in the downgrading or withdrawal of the rating then
assigned to any Note or the rating then assigned to any Note or (b) the consent
of Holders of the Certificates evidencing a majority of the Percentage Interests
of the Certificates and the Indenture Trustee; provided,
however,
that no
such amendment shall (i) reduce in any manner the amount of, or delay the time
of, payments received that are required to be distributed on any Certificate
without the consent of the related Certificateholder, or (ii) reduce the
aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment without the consent of the Holders of all such
Certificates then outstanding.
As
provided in the Trust Agreement and subject to certain limitations therein
set
forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the
offices or agencies of the Certificate Registrar maintained by the Trust, as
provided in the Trust Agreement, accompanied by a written instrument of transfer
in form satisfactory to the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon
one
or more new Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee.
The
initial Certificate Registrar appointed under the Trust Agreement is ▇▇▇▇▇
Fargo
Bank, N.A.
Except
as
provided in the Trust Agreement, the Certificates are issuable only in a minimum
Certificate Percentage Interest of 10%. As provided in the Trust Agreement
and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but
the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The
Owner
Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent
of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Owner Trustee, the Certificate Paying
Agent, the Certificate Registrar or any such agent shall be affected by any
notice to the contrary.
The
obligations and responsibilities created by the Trust Agreement and the Trust
created thereby shall terminate as and when provided in accordance with the
terms of the Trust Agreement.
ASSIGNMENT
FOR
VALUE
RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Please
print or type name and address, including postal zip code, of
assignee)
the
within Certificate, and all rights thereunder, hereby irrevocably constituting
and appointing
to
transfer said Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:
______________________________________________________*/
Signature
Guaranteed:
_________________________*/
______________________
*/
NOTICE:
The signature to this assignment must correspond with the name as it appears
upon the face of the within Certificate in every particular, without alteration,
enlargement or any change whatever. Such signature must be guaranteed by a
member firm of the New York Stock Exchange or a commercial bank or trust
company.
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for the information of the Certificate
Paying Agent:
Distribution
shall be made by wire transfer in immediately available funds to
_______________________________________
_____________________________________________________________________________________________
for
the account
of________________________________________________________________________________________,
account
number
_____________________________________________________________________,
or, if mailed by check, to __________.
Applicable
statements should be mailed to _________________.
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Signature
of assignee or agent
(for
authorization of wire
transfer
only)
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EXHIBIT
B
CERTIFICATE
OF TRUST OF
Bear
▇▇▇▇▇▇▇ ARM Trust 2006-1
THIS
Certificate of Trust of Bear ▇▇▇▇▇▇▇ ARM Trust 2006-1
(the
“Trust”), dated February ___, 2006, 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,
§
3801
et
seq.).
1.
Name.
The
name of the statutory trust formed hereby is Bear ▇▇▇▇▇▇▇ ARM Trust 2006-1.
2.
Delaware
Trustee.
The
name and business address of the trustee of the Trust in the State of Delaware
is Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
IN
WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust, has
executed this Certificate of Trust as of the date first above
written.
|
Wilmington
Trust Company,
not
in its individual capacity but solely as
owner
trustee under a Trust Agreement
dated
as of February ___, 2006
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| By: | ||
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Name:
Title:
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EXHIBIT
C
[FORM
OF
RULE 144A INVESTMENT REPRESENTATION]
Description
of Rule 144A Securities, including numbers:
The
undersigned seller, as registered holder (the “Seller”), intends to transfer the
Rule 144A Securities described above to the undersigned buyer (the
“Buyer”).
1.
In
connection with such transfer and in accordance with the agreements pursuant
to
which the Rule 144A Securities were issued, the Seller and the Mortgage Loan
Seller hereby certifie the following facts: Neither the Seller, Mortgage Loan
Seller nor anyone acting on its behalf has offered, transferred, pledged, sold
or otherwise disposed of the Rule 144A Securities, any interest in the Rule
144A
Securities or any other similar security to, or solicited any offer to buy
or
accept a transfer, pledge or other disposition of the Rule 144A Securities,
any
interest in the Rule 144A Securities or any other similar security from, or
otherwise approached or negotiated with respect to the Rule 144A Securities,
any
interest in the Rule 144A Securities or any other similar security with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, that would
constitute a distribution of the Rule 144A Securities under the Securities
Act
of 1933, as amended (the “1933 Act”), or that would render the disposition of
the Rule 144A Securities a violation of Section 5 of the 1933 Act or require
registration pursuant thereto, and that the Mortgage Loan Seller has not offered
the Rule 144A Securities to any person other than the Buyer or another
“qualified institutional buyer” as defined in Rule 144A under the ▇▇▇▇
▇▇▇.
2.
The
Buyer warrants and represents to, and covenants with, the Owner Trustee, the
Certificate Registrar and the Depositor (as defined in the Amended and Restated
Trust Agreement (the “Agreement”), dated as of February 28, 2006, among Bear
▇▇▇▇▇▇▇ Asset Backed Securities I LLC, as Depositor, Wilmington Trust Company,
as Owner Trustee, ▇▇▇▇▇ Fargo Bank, N.A. in its capacity as Securities
Administrator, as Certificate Registrar and Certificate Paying Agent) pursuant
to Section 3.04 of the Agreement and U.S. Bank National Association, as
indenture trustee, as follows:
a.
The
Buyer understands that the Rule 144A Securities have not been registered under
the 1933 Act or the securities laws of any state.
b.
The
Buyer considers itself a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Rule 144A
Securities.
c.
The
Buyer has been furnished with all information regarding the Rule 144A Securities
that it has requested from the Seller, the Mortgage Loan Seller, the Indenture
Trustee, the Owner Trustee or the Master Servicer.
d.
Neither
the Buyer nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Rule 144A Securities, any interest in the
Rule
144A Securities or any other similar security to, or solicited any offer to
buy
or accept a transfer, pledge or other disposition of the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security from,
or
otherwise approached or negotiated with respect to the Rule 144A Securities,
any
interest in the Rule 144A Securities or any other similar security with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, that would
constitute a distribution of the Rule 144A Securities under the 1933 Act or
that
would render the disposition of the Rule 144A Securities a violation of Section
5 of the 1933 Act or require registration pursuant thereto, nor will it act,
nor
has it authorized or will it authorize any person to act, in such manner with
respect to the Rule 144A Securities.
e.
The
Buyer is a “qualified institutional buyer” as that term is defined in Rule 144A
under the 1933 Act and has completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2. The Buyer is aware that
the
sale to it is being made in reliance on Rule 144A. The Buyer is acquiring the
Rule 144A Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the 1933 Act.
3.
The
Buyer warrants and represents to, and covenants with, the Seller, the Mortgage
Loan Seller, the Indenture Trustee, Owner Trustee, the Certificate Registrar,
Master Servicer and the Depositor that either (1) the Buyer is (A) not an
employee benefit plan (within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”)), or a plan (within
the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986
(“Code”)), which (in either case) is subject to ERISA or Section 4975 of the
Code (both a “Plan”), and (B) is not directly or indirectly purchasing the Rule
144A Securities on behalf of, as investment manager of, as named fiduciary
of,
as trustee of, or with “plan assets” of a Plan, or (2) the Buyer understands
that registration of transfer of any Rule 144A Securities to any Plan, or to
any
Person acting on behalf of any Plan, will not be made unless such Plan delivers
an opinion of its counsel, addressed and satisfactory to the Certificate
Registrar, the Owner Trustee, the Master Servicer, the Seller, the Mortgage
Loan
Seller, the Servicer and the Depositor, to the effect that the purchase and
holding of the Rule 144A Securities by, on behalf of or with “plan assets” of
any Plan is permissible under applicable law, would not constitute or result
in
a prohibited transaction under ERISA or Section 4975 of the Code, and would
not
subject the Depositor, the Owner Trustee, the Securities Administrator, the
Certificate Registrar, the Seller, the Mortgage Loan Seller, the Servicer or
the
Master Servicer to any obligation or liability (including liabilities under
ERISA or Section 4975 of the Code) in addition to those undertaken in the
Agreement, which Opinion of Counsel shall not be an expense of the Depositor,
the Owner Trustee, the Securities Administrator, the Certificate Registrar,
the
Seller, the Mortgage Loan Seller, the Servicer or the Master
Servicer.
4.
This
document may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same document.
IN
WITNESS WHEREOF, each of the parties has executed this document as of the date
set forth below.
| ____________________________________ | _________________________________ | |
|
Print
Name of Seller
|
Print
Name of Buyer
|
|
|
By:
______________________________________
|
By:
___________________________________
|
|
|
Name:
Title:
|
Name:
Title:
|
|
|
Taxpayer
Identification:
|
Taxpayer
Identification:
|
|
|
No.
______________________________________
|
No.
___________________________________
|
|
|
Date:
_____________________________________
|
Date:
__________________________________
|
ANNEX
1 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers Other Than Registered Investment Companies]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1.
As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2.
In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933
(“Rule 144A”) because (i) the Buyer owned and/or invested on a discretionary
basis $1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Buyer satisfies the criteria in the
category marked below.
|
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Corporation,
etc.
The Buyer is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue
Code.
|
|
___
|
Bank.
The Buyer (a) is a national bank or banking institution organized
under
the laws of any State, territory or the District of Columbia, the
business
of which is substantially confined to banking and is supervised by
the
State or territorial banking commission or similar official or is
a
foreign bank or equivalent institution, and (b) has an audited net
worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached
hereto.
|
|
___
|
Savings
and Loan.
The Buyer (a) is a savings and loan association, building and loan
association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has
an
audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements.
|
|
___
|
Broker-Dealer.
The Buyer is a dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
|
|
___
|
Insurance
Company.
The Buyer is an insurance company whose primary and predominant business
activity is the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of a State
or
territory or the District of
Columbia.
|
|
___
|
State
or Local Plan.
The Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its
political subdivisions, for the benefit of its
employees.
|
|
___
|
ERISA
Plan.
The Buyer is an employee benefit plan within the meaning of Title
I of the
Employee Retirement Income Security Act of
1974.
|
|
___
|
Investment
Adviser.
The Buyer is an investment adviser registered under the Investment
Advisers Act of 1940.
|
|
___
|
SBIC.
The Buyer is a Small Business Investment Company licensed by the
U.S.
Small Business Administration under Section 301(c) or (d) of the
Small
Business Investment Act of 1958.
|
|
___
|
Business
Development Company.
The Buyer is a business development company as defined in Section
202(a)(22) of the Investment Advisers Act of
1940.
|
|
___
|
Trust
Fund.
The Buyer is a trust fund whose trustee is a bank or trust company
and
whose participants are exclusively (a) plans established and maintained
by
a State, its political subdivisions, or any agency or instrumentality
of
the State or its political subdivisions, for the benefit of its employees,
or (b) employee benefit plans within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, but is not a trust
fund
that includes as participants individual retirement accounts or H.R.
10
plans.
|
3.
The term
“securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
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.
4.
For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934.
5.
The
Buyer acknowledges that it is familiar with Rule 144A and understands that
the
seller to it and other parties related to the Certificates are relying and
will
continue to rely on the statements made herein because one or more sales to
the
Buyer may be in reliance on Rule 144A.
|
_____
Yes
|
_____
No
|
Will
the Buyer be purchasing the Rule 144A
Securities
only for the Buyer's own account?
|
6.
If the
answer to the foregoing question is “no”, the Buyer agrees that, in connection
with any purchase of securities sold to the Buyer for the account of a third
party (including any separate account) in reliance on Rule 144A, the Buyer
will
only purchase for the account of a third party that at the time is a “qualified
institutional buyer” within the meaning of Rule 144A. In addition, the Buyer
agrees that the Buyer will not purchase securities for a third party unless
the
Buyer has obtained a current representation letter from such third party or
taken other appropriate steps contemplated by Rule 144A to conclude that such
third party independently meets the definition of “qualified institutional
buyer” set forth in Rule 144A.
7.
The
Buyer will notify each of the parties to which this certification is made of
any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of Rule 144A Securities will constitute a reaffirmation
of
this certification as of the date of such purchase.
________________________________
Print
Name of Buyer
By: __________________________
Name:
Title
Date:
___________________________
_______________________________
1
Buyer
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or
invest on a discretionary basis at least $10,000,000 in securities.
ANNEX
2 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers That Are Registered Investment Companies]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1.
As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933 (“Rule 144A”) because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2.
In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, and (ii) as marked
below, the Buyer alone, or the Buyer'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 Buyer's most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the Buyer's Family
of
Investment Companies, the cost of such securities was used.
| ____ |
The
Buyer owned $ _____________ in
securities (other than the excluded securities referred to below)
as of
the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule
144A).
|
| ____ |
The
Buyer is part of a Family of Investment Companies which owned in
the
aggregate $ ________________ in
securities (other than the excluded securities referred to below)
as of
the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule
144A).
|
3.
The term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4.
The term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer'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.
5.
The
Buyer is familiar with Rule 144A and understands that each of the parties to
which this certification is made are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the Buyer's
own account.
6.
The
undersigned will notify each of the parties to which this certification is
made
of any changes in the information and conclusions herein. Until such notice,
the
Buyer's purchase of Rule 144A Securities will constitute a reaffirmation of
this
certification by the undersigned as of the date of such purchase.
|
__________________________________________
Print
Name of
Buyer
|
||
| |
|
|
| By: _______________________________________ | ||
|
Name:
Title:
|
||
|
IF
AN
ADVISER:
|
||
| |
|
|
| ____________________________________ | ||
|
Print
Name of Buyer
|
||
EXHIBIT
D
CERTIFICATE
OF NON-FOREIGN STATUS
This
Certificate of Non-Foreign Status (“certificate”) is delivered pursuant to
Section 3.02 of the Amended and Restated Trust Agreement, dated as of February
28, 2006 (the “Trust Agreement”), among Bear ▇▇▇▇▇▇▇ Asset Backed Securities I
LLC, as Depositor, Wilmington Trust Company, as Owner Trustee and ▇▇▇▇▇ Fargo
Bank, N.A., in its capacity as Securities Administrator, as Certificate
Registrar and Certificate Paying Agent, in connection with the acquisition
of,
transfer to or possession by the undersigned, whether as beneficial owner for
U.S. federal income tax purposes (the “Beneficial Owner”), or nominee on behalf
of the Beneficial Owner of the Certificates, Series 2006-1
(the
“Certificates”). Capitalized terms used but not defined in this certificate have
the respective meanings given them in the Trust Agreement.
Each
holder must complete Part I, Part II (if the holder is a nominee), and in all
cases sign and otherwise complete Part III.
In
addition, each holder shall submit with the certificate an IRS Form W-9 relating
to such holder.
To
confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the
Internal Revenue Code (relating to withholding tax on foreign partners) do
not
apply in respect of the Certificates held by the undersigned, the undersigned
hereby certifies:
Part
I. Complete
Either A or B
| A. |
Individual
as Beneficial Owner
|
| 1. |
I
am (The Beneficial Owner is ) not a non-resident alien for purposes
of
U.S. federal income taxation;
|
| 2. |
My
(The Beneficial Owner's) name and home address are:
_____________________
_____________________
_____________________;
and
|
| 3. |
My
(The Beneficial Owner's) U.S. taxpayer identification number
(Social
Security Number) is ____________________________.
|
| B. |
Corporate,
Partnership or Other Entity as Beneficial
Owner
|
| 1. |
(Name
of the Beneficial Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined
in the Code and Treasury
Regulations;
|
| 2. |
The
Beneficial Owner's office address and place of incorporation (if
applicable) is
_____________________;
and
|
| 3. |
The
Beneficial Owner's U.S. employer identification number is
.
|
Part
II. Nominees
If
the
undersigned is the nominee for the Beneficial Owner, the undersigned certifies
that this certificate has been made in reliance upon information contained
in:
_____
an IRS Form
W-9
_____
a form such as
this or substantially similar
provided
to the undersigned by an appropriate person and (i) the undersigned agrees
to
notify the Trust at least thirty (30) days prior to the date that the form
relied upon becomes obsolete, and (ii) in connection with change in Beneficial
Owners, the undersigned agrees to submit a new Certificate of Non-Foreign Status
to the Trust promptly after such change.
Part
III. Declaration
The
undersigned, as the Beneficial Owner or a nominee thereof, agrees to notify
the
Trust within sixty (60) days of the date that the Beneficial Owner becomes
a
foreign person. The undersigned understands that this certificate may be
disclosed to the Internal Revenue Service by the Trust and any false statement
contained therein could be punishable by fines, imprisonment or
both.
Under
penalties of perjury, I declare that I have examined this certificate and to
the
best of my knowledge and belief it is true, correct and complete and will
further declare that I will inform the Trust of any change in the information
provided above, and, if applicable, I further declare that I have the authority*
to sign this document.
| Name | |
| Title (if applicable) | |
| Signature and Date |
*Note:
If
signed pursuant to a power of attorney, the power of attorney must accompany
this certificate.
EXHIBIT
E
FORM
OF
INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Wilmington
Trust Company, as Owner Trustee
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Bear
▇▇▇▇▇▇▇ ARM Trust 2006-1,
Trust
Certificates,
Series
2006-1
(the
“Certificates”)
Ladies
and Gentlemen:
In
connection with our acquisition of the above-captioned Certificates, we certify
that (a) we understand that the Certificates are not being registered under
the
Securities Act of 1933, as amended (the “Act”), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
“accredited investor,” as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c)
we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended,
or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986,
as
amended, nor are we acting on behalf of any such plan, (e) we are acquiring
the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action
which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an Opinion of Counsel satisfactory
to
the addressees of this certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser
or
transferee has otherwise complied with any conditions for transfer set forth
in
the Trust Agreement.
|
Very
truly yours,
[TRANSFEREE]
|
||
| |
|
|
| By: | ||
|
|
||
|
Authorized
Officer
|
||
EXHIBIT
F
TRANSFEROR
CERTIFICATE
Wilmington
Trust Company, as Owner Trustee
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Proposed
Transfer of Trust Certificates, Bear ▇▇▇▇▇▇▇ ARM Trust 2006-1
Ladies
and Gentlemen:
This
certification is being made by ____________________ (the “Transferor”) in
connection with the proposed Transfer to _____________________ (the
“Transferee”) of a trust certificate (the “Trust Certificate”) representing ___%
fractional undivided interest in Bear ▇▇▇▇▇▇▇ ARM Trust 2006-1 (the “Trust”)
created pursuant to a Trust Agreement, dated as of February ___, 2006 (such
agreement, as amended by the Amended and Restated Trust Agreement dated February
28, 2006, being referred to herein as the “Trust Agreement”) among Bear ▇▇▇▇▇▇▇
Asset Backed Securities I LLC (the “Company”), Wilmington Trust Company, as
Owner Trustee (the “Owner Trustee”) and ▇▇▇▇▇ Fargo Bank, N.A., in its capacity
as Securities Administrator, as certificate registrar and certificate paying
agent (the “Certificate Registrar”). Initially capitalized terms used but not
defined herein have the meanings assigned to them in the Deposit Trust
Agreement. The Transferor hereby certifies, represents and warrants to, and
covenants with, the Company, the Owner Trustee and the Certificate Registrar
that:
Neither
the Transferor nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Trust Certificate, any interest in
any
Trust Certificate or any other similar security to any person in any manner,
(b)
has solicited any offer to buy or to accept a pledge, disposition or other
transfer of any Trust Certificate, any interest in any Trust Certificate or
any
other similar security from any person in any manner, (c) has otherwise
approached or negotiated with respect to any Trust Certificate, any interest
in
any Trust Certificate or any other similar security with any person in any
manner, (d) has made any general solicitation by means of general advertising
or
in any other manner, or (e) has taken any other action, that (as to any of
(a)
through (e) above) would constitute a distribution of the Trust Certificates
under the Securities Act of 1933 (the “Act”), that would render the disposition
of any Trust Certificate a violation of Section 5 of the Act or any state
securities law, or that would require registration or qualification pursuant
thereto. The Transferor will not act in any manner set forth in the foregoing
sentence with respect to any Trust Certificate. The Transferor has not and
will
not sell or otherwise transfer any of the Trust Certificates, except in
compliance with the provisions of the Trust Agreement.
|
Date:
____________________
|
_______________________________________
Name
of Transferor
|
|
_______________________________________
Signature
|
|
|
_______________________________________
Name
|
|
|
_______________________________________
Title
|
EXHIBIT
G
[DATE]
Wilmington
Trust Company, as Owner Trustee
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Proposed
Transfer of Trust Certificates,
Bear
▇▇▇▇▇▇▇ ARM Trust 2006-1 (the “Certificates”)
Ladies
and Gentlemen:
This
certification is being made by ______________
(the
“Transferee”) in connection with the proposed Transfer by __________________
(the “Transferor”) of a trust certificate (the “Trust Certificate”) representing
__% fractional undivided interest in Bear ▇▇▇▇▇▇▇ ARM Trust 2006-1
(the
“Trust”) created pursuant to a Trust Agreement, dated as of February ___, 2006
(such agreement, as amended by the Amended and Restated Trust Agreement dated
February 28, 2006, being referred to herein as the “Trust Agreement”) among Bear
▇▇▇▇▇▇▇ Asset Backed Securities I LLC (the “Company”), Wilmington Trust Company,
as Owner Trustee (the “Owner Trustee”) and ▇▇▇▇▇ Fargo Bank, N.A., in its
capacity as Securities Administrator, as certificate registrar and certificate
paying agent (the “Certificate Registrar”). Initially capitalized terms used but
not defined herein have the meanings assigned to them in the Trust Agreement.
The Transferor hereby certifies, represents and warrants to, and covenants
with,
the Company, the Owner Trustee and the Certificate Registrar that:
(i) either
(a) or (b) is satisfied, as marked below:
___ a. The
Transferor is not any employee benefit plan subject to the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), or the Internal Revenue Code
of 1986 (the “Code”), a Person acting, directly or indirectly, on behalf of any
such plan or any Person acquiring such Certificates with “plan assets” of a Plan
within the meaning of the Department of Labor regulation promulgated at 29
C.F.R. §2510.3-101; or
___ b. The
Transferor is an employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or the Internal Revenue Code of 1986
(the “Code”), a Person acting, directly or indirectly, on behalf of any such
plan or any Person acquiring such Certificates with “plan assets” of a Plan
within the meaning of the Department of Labor regulation promulgated at 29
C.F.R. §2510.3-101 and will provide the Depositor, the Owner Trustee, the
Securities Administrator, the Certificate Registrar and the Master Servicer
with
an Opinion of Counsel, satisfactory to the Depositor, the Owner Trustee, the
Securities Administrator, the Certificate Registrar and the Master Servicer,
to
the effect that the purchase and holding of a Certificate by or on behalf of
the
Transferor is permissible under applicable law, will not constitute or result
in
a prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code
(or comparable provisions of any subsequent enactments) and will not subject
the
Depositor, the Owner Trustee, the Securities Administrator, the Certificate
Registrar, the Seller, the Mortgage Loan Seller, the Servicer or the Master
Servicer to any obligation or liability (including liabilities under ERISA
or
Section 4975 of the Code) in addition to those undertaken in the Trust
Agreement, which Opinion of Counsel shall not be an expense of the Depositor,
the Owner Trustee, the Securities Administrator, the Certificate Registrar,
the
Seller, the Mortgage Loan Seller, the Servicer or the Master Servicer;
and
(ii) the
Transferor is familiar with the prohibited transaction restrictions and
fiduciary responsibility requirements of Sections 406 and 407 of ERISA and
Section 4975 of the Code and understands that each of the parties to which
this
certification is made is relying and will continue to rely on the statements
made in this paragraph.
|
Very
truly
yours,
|
||
| |
|
|
|
By:
_____________________________
Name:
_____________________________
Title:
_____________________________
|
||
EXHIBIT
H
FORM
OF TRANSFEREE CERTIFICATE
Wilmington
Trust Company, as Owner Trustee
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.,
as
Securities Administrator and Certificate Registrar
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Corporate Trust Services
U.S.
Bank, National Association, as Indenture Trustee
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Re:
Proposed
Transfer of Trust Certificates,
Bear
▇▇▇▇▇▇▇ ARM Trust 2006-1 (the “Certificates”)
Ladies
and Gentlemen:
Reference
is made to the Certificates and Privately Offered Notes issued pursuant to
the
Trust Agreement, dated as of February 27, 2006 (such agreement, as amended
by
the Amended and Restated Trust Agreement dated February 28, 2006, being referred
to herein as the “Trust Agreement”) among Bear ▇▇▇▇▇▇▇ Asset Backed Securities I
LLC, as depositor, Wilmington Trust Company, as owner trustee (the “Owner
Trustee”) and ▇▇▇▇▇ Fargo Bank, N.A., solely in its capacity as securities
administrator (the “Securities Administrator”), certificate registrar (the
“Certificate Registrar”) and certificate paying agent and the Indenture,
dated February 28, 2006, among Bear ▇▇▇▇▇▇▇ ARM Trust 2006-1, as Issuing Entity,
▇▇▇▇▇ Fargo Bank, N.A., as securities administrator and U.S. Bank National
Association as indenture trustee (the “Indenture”).
Initially capitalized terms used but not defined herein have the meanings
assigned to them in the Trust Agreement or the Indenture.
The
undersigned hereby notifies you of its intent to sell
or
otherwise transfer the Certificates or the Privately Offered Notes in a
transaction such that, following the sale or other transfer, there will not
be a
Single Owner.
|
Date:
_______________________
|
__________________________________
Name
of Transferee
|
|
__________________________________
Signature
|
|
|
__________________________________
Name
|
|
|
__________________________________
Title
|
EXHIBIT
J
FORM
OF
REMIC CLASS A INDENTURE
(Provided
under Separate Cover)
EXHIBIT
K
UNDERLYING
REMIC TRUST POOLING AND SERVICING AGREEMENT
(Provided
under Separate Cover)
EXHIBIT
L
FORM
OF NOTICE FOR TRIGGER EVENT
Wilmington
Trust Company, as Owner Trustee
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.,
as
Securities Administrator and Certificate Registrar
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Corporate Trust Services
U.S.
Bank, National Association, as Indenture Trustee
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Bear
▇▇▇▇▇▇▇ Asset Backed Securities I LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Vice President-Servicing
Re:
Proposed
Transfer of Trust Certificates,
Bear
▇▇▇▇▇▇▇ ARM Trust 2006-1 (the “Certificates”)
Ladies
and Gentlemen:
Reference
is made to the Certificates and Privately Offered Notes issued pursuant to
the
Trust Agreement, dated as of February 27, 2006 (such agreement, as amended
by
the Amended and Restated Trust Agreement dated February 28, 2006, being referred
to herein as the “Trust Agreement”) among Bear ▇▇▇▇▇▇▇ Asset Backed Securities I
LLC, as depositor, Wilmington Trust Company, as owner trustee (the “Owner
Trustee”) and ▇▇▇▇▇ Fargo Bank, N.A., solely in its capacity as securities
administrator (the “Securities Administrator”), certificate registrar (the
“Certificate Registrar”) and certificate paying agent and the Indenture,
dated February 28, 2006, among Bear ▇▇▇▇▇▇▇ ARM Trust 2006-1, as Issuing Entity,
▇▇▇▇▇ Fargo Bank, N.A., as securities administrator and U.S. Bank National
Association as indenture trustee (the “Indenture”).
Initially capitalized terms used but not defined herein have the meanings
assigned to them in the Trust Agreement or the Indenture.
The
undersigned hereby notifies you of its intent to sell
or
otherwise transfer the Certificates or the Privately Offered Notes in a
transaction such that, following the sale or other transfer, there will not
be a
Single Owner.
|
Date:
_______________________
|
__________________________________
Name
of Transferee
|
|
__________________________________
Signature
|
|
|
__________________________________
Name
|
|
|
__________________________________
Title
|