EXHIBIT 4.1
EXECUTION
TRUST AGREEMENT
among
AEGIS ASSET BACKED SECURITIES CORPORATION,
as Depositor,
WILMINGTON TRUST COMPANY,
as Owner Trustee
and
▇▇▇▇▇ FARGO BANK, N.A.,
as Administrator
Dated as of October 1, 2006
AEGIS ASSET BACKED SECURITIES TRUST 2006-1
Mortgage Backed Notes
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS
Section 1.01. Definitions .............................................. 1
Section 1.02. Other Definitional Provisions ............................ 5
ARTICLE II ORGANIZATION
Section 2.01. Name ..................................................... 5
Section 2.02. Office ................................................... 6
Section 2.03. Purpose and Powers ....................................... 6
Section 2.04. Appointment of the Owner Trustee ......................... 6
Section 2.05. Initial Capital Contribution; Declaration of Trust ....... 6
Section 2.06. Initial Beneficiary ...................................... 7
Section 2.07. Liability of the Holder of the Ownership Certificates .... 7
Section 2.08. Situs of Trust ........................................... 7
Section 2.09. Title to Trust Property .................................. 7
Section 2.10. Representations and Warranties of the Depositor .......... 8
Section 2.11. Tax Treatment ............................................ 9
Section 2.12. Investment Company ....................................... 9
ARTICLE III THE OWNERSHIP CERTIFICATES AND TRANSFERS OF INTERESTS
Section 3.01. The Ownership Certificates ............................... 9
Section 3.02. Execution, Authentication and Delivery of the Ownership
Certificates .......................................... 10
Section 3.03. Registration of and Limitations on Transfers and Exchanges
of the Ownership Certificates ......................... 10
Section 3.04. Lost, Stolen, Mutilated or Destroyed Ownership
Certificates .......................................... 13
Section 3.05. Persons Deemed Certificateholders ........................ 13
Section 3.06. Access to List of Certificateholders' Names and Addresses. 13
Section 3.07. [Reserved] ............................................... 13
Section 3.08. Maintenance of Office or Agency .......................... 13
Section 3.09. Certificate Paying Agent ................................. 14
ARTICLE IV APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 4.01. Certificate Distribution Account ......................... 15
Section 4.02. Application of Trust Funds ............................... 15
Section 4.03. Method of Payment ........................................ 15
Section 4.04. [Reserved] ............................................... 16
Section 4.05. Segregation of Moneys; No Interest ....................... 16
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ARTICLE V AUTHORITY AND DUTIES OF THE OWNER TRUSTEE;
ACTION BY CERTIFICATEHOLDERS
Section 5.01. General Authority ........................................ 16
Section 5.02. General Duties ........................................... 16
Section 5.03. Action Upon Instruction .................................. 16
Section 5.04. No Duties Except as Specified under Specified Documents or
in Instructions ....................................... 17
Section 5.05. Restrictions ............................................. 18
Section 5.06. Prior Notice to the Holder with Respect to Certain
Matters ............................................... 18
Section 5.07. Action by the Holder with Respect to Bankruptcy .......... 20
Section 5.08. Restrictions on the Holder's Power ....................... 20
ARTICLE VI CONCERNING THE OWNER TRUSTEE
Section 6.01. Acceptance of Trusts and Duties .......................... 20
Section 6.02. Furnishing of Documents .................................. 21
Section 6.03. Books and Records ........................................ 21
Section 6.04. Representations and Warranties ........................... 22
Section 6.05. Reliance; Advice of Counsel .............................. 23
Section 6.06. Not Acting in Individual Capacity ........................ 24
Section 6.07. Owner Trustee Not Liable for Ownership Certificates or
Collateral ............................................ 24
Section 6.08. Owner Trustee May Own Ownership Certificates and Notes ... 24
Section 6.09. Licenses ................................................. 25
Section 6.10. Doing Business in Other Jurisdictions .................... 25
Section 6.11. Reporting Requirements of the Commission ................. 25
ARTICLE VII INDEMNIFICATION AND COMPENSATION
Section 7.01. Trust Expenses ........................................... 26
Section 7.02. Indemnification .......................................... 27
Section 7.03. Compensation ............................................. 27
Section 7.04. Lien on Trust Estate ..................................... 28
ARTICLE VIII TERMINATION OF AGREEMENT
Section 8.01. Termination of Agreement ................................. 28
ARTICLE IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee ............... 29
Section 9.02. Resignation or Removal of Owner Trustee .................. 29
Section 9.03. Successor Owner Trustee .................................. 30
Section 9.04. Merger or Consolidation of Owner Trustee ................. 30
Section 9.05. Appointment of Co-Trustee or Separate Trustee ............ 30
ARTICLE X MISCELLANEOUS
Section 10.01. Supplements and Amendments ............................... 32
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Section 10.02. No Legal Title to Trust Estate in Holder ................. 33
Section 10.03. Pledge of Collateral by Owner Trustee is Binding ......... 33
Section 10.04. Limitations on Rights of Others .......................... 33
Section 10.05. Notices .................................................. 33
Section 10.06. Severability ............................................. 34
Section 10.07. Separate Counterparts .................................... 34
Section 10.08. Successors and Assigns ................................... 34
Section 10.09. Headings ................................................. 34
Section 10.10. Governing Law ............................................ 34
Section 10.11. No Petition .............................................. 34
Section 10.12. No Recourse .............................................. 35
Section 10.13. Reporting Requirements of the Commission and
Indemnification ....................................... 35
ARTICLE XI OFFICERS
Section 11.01. Appointment of Officers .................................. 35
Section 11.02. Officers to Provide Information to the Owner Trustee ..... 35
EXHIBITS:
Exhibit A-X Form of Class X Ownership Certificate
Exhibit A-R Form of Class R Ownership Certificate
Exhibit B [Reserved]
Exhibit C Form of Certificate of Trust
Exhibit D Form of Rule 144A Investment Letter
Exhibit E Owner Trustee Fee Letter Agreement
Exhibit F Form of Representation and Warranty Regarding Transferee's Status
as a REIT, Qualified REIT Subsidiary or Disregarded Entity
Exhibit G Servicing Criteria to be Addressed in Assessment of Compliance
Exhibit H Transaction Parties
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This TRUST AGREEMENT dated as of October 1, 2006, is by and among AEGIS
ASSET BACKED SECURITIES CORPORATION, a Delaware corporation (the "Depositor"),
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Owner Trustee (the
"Owner Trustee"), and ▇▇▇▇▇ FARGO BANK, N.A., a national banking association, as
Administrator (the "Administrator").
WHEREAS, pursuant to the Transfer and Servicing Agreement entered into
simultaneously with this Trust Agreement, Depositor intends to sell, transfer
and assign to a Delaware statutory trust created hereunder certain Mortgage
Loans and related assets (collectively, the "Collateral"), which statutory trust
would then pledge such Collateral under an indenture in order to secure the
issuance of the Aegis Asset Backed Securities Trust 2006-1 Mortgage-Backed Notes
(the "Notes"), the net proceeds of which would be applied toward the purchase of
the Collateral.
WHEREAS, the Depositor, the Owner Trustee and the Initial Holder intend
that the Trust be treated as a Qualified REIT Subsidiary for federal income tax
purposes.
WHEREAS, the Depositor, the Owner Trustee and the Administrator desire to
enter into this Agreement in order to effect the foregoing.
NOW THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Agreement, the
following terms shall have the meanings set forth below.
Actual Knowledge: With respect to the Owner Trustee, any officer within the
Corporate Trust Office of the Owner Trustee responsible for administering the
Trust hereunder, or under the Operative Documents, who has actual knowledge of
an action taken or an action not taken with regard to the Trust. Actions taken
or actions not taken of which the Owner Trustee should have had knowledge, or
has constructive knowledge, do not meet the definition of Actual Knowledge
hereunder. With respect to the Administrator, any Responsible Officer of the
Administrator who has actual knowledge of an action taken or an action not taken
with regard to the Trust. Actions taken or actions not taken of which the
Administrator should have had knowledge, or has constructive knowledge, do not
meet the definition of Actual Knowledge hereunder.
Administrator: ▇▇▇▇▇ Fargo Bank, N.A., or any successor in interest.
Aegis: Aegis Mortgage Corporation, a Delaware corporation.
Agreement or Trust Agreement: This Trust Agreement and any amendments or
modifications hereof.
Authorized Officer: With respect to the Trust, any officer of the Owner
Trustee who is authorized to act for the Owner Trustee in matters relating to
the Trust and who is identified on the list of Authorized Officers delivered by
the Owner Trustee to the Indenture Trustee on the Closing Date (as such list may
be modified or supplemented from time to time thereafter) and, so long as the
Administration Agreement is in effect, any Vice President, Assistant Vice
President, Trust Officer, or more senior officer of the Administrator who is
authorized to act for the Administrator in matters relating to the Trust and to
be acted upon by the Administrator pursuant to the Administration Agreement and
who is identified on the list of Authorized Officers delivered by the
Administrator to the Indenture Trustee on the Closing Date (as such list may be
modified or supplemented from time to time thereafter).
Bank: Wilmington Trust Company in its individual capacity and not as Owner
Trustee under this Agreement.
Certificate: Any Ownership Certificate issued pursuant to this Agreement.
Certificate of Trust: The Certificate of Trust to be filed by the Owner
Trustee for the Trust pursuant to Section 3810(a) of the Delaware Trust Statute
in the form of Exhibit C hereto.
Certificate Paying Agent: Initially, the Administrator, in its capacity as
Certificate Paying Agent, or any successor to the Administrator in such
capacity.
Certificate Register: The register maintained by the Certificate Registrar
in which the Certificate Registrar shall provide for the registration of the
Ownership Certificates and of transfers and exchanges of such Ownership
Certificates.
Certificate Registrar: Initially, the Administrator, in its capacity as
Certificate Registrar, or any successor to the Administrator in such capacity.
Certificateholder or Holder: The Person in whose name the Ownership
Certificates are registered in the Certificate Register.
Class R Ownership Certificate: An equity Certificate substantially in the
form annexed hereto as Exhibit A-R, which, together with the Class X Ownership
Certificate, represents in the aggregate a 100% undivided beneficial ownership
interest in the trust.
Class X Ownership Certificate: An equity Certificate substantially in the
form annexed hereto as Exhibit A-X which, together with the Class R Ownership
Certificate, represents in the aggregate a 100% undivided beneficial ownership
interest in the trust.
Collateral: As defined in the Indenture.
Corporate Trust Office: With respect to (i) the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such
other address in the State of Delaware as the Owner Trustee may designate by
notice to the Administrator and the Certificateholder, or the principal
corporate trust office of any successor Owner Trustee (the address (which shall
be in the State of Delaware) of which the successor owner trustee will notify
the Administrator and the
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Certificateholder); (ii) the Administrator, the principal corporate trust office
of the Administrator at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof for purposes of
transfers and exchanges and for presentment and surrender of the Ownership
Certificates and for payment thereof is located at ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Trust Group (Aegis 2006-1), and for all other purposes is located at ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇.▇., ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Group (Aegis 2006-1) (or for overnight deliveries, at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Group (Aegis 2006-1)); and
(iii) the Certificate Registrar, the principal office of the Certificate
Registrar at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Agreement is located
at the Corporate Trust Office of the Administrator, or at such other address as
the Certificate Registrar may designate from time to time by notice to the
Securityholders and the Trust, or the principal corporate trust office of any
successor Certificate Registrar at the address designated by such successor
Certificate Registrar by notice to the Securityholders and the Trust.
Delaware Trust Statute: Chapter 38 of Title 12 of the Delaware Code, 12
Del.C. Section 3801 et seq., as the same may be amended from time to time.
Depositor: Aegis Asset Backed Securities Corporation, a Delaware
corporation.
Disregarded Entity: An entity that is both (a) solely owned by a REIT or
Qualified REIT Subsidiary and (b) disregarded as an entity separate from its
owner within the meaning of Section 301.7701-2(c)(2) of the Treasury
Regulations.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Indenture: The indenture dated as of October 1, 2006, among the Issuer, the
Administrator and the Indenture Trustee, as such may be amended or supplemented
from time to time.
Indenture Trustee: Deutsche Bank National Trust Company, not in its
individual capacity but solely as Indenture Trustee, or any successor in
interest.
Initial Holder: Aegis Equity Holding Corporation, or any successor in
interest.
Liabilities: The meaning specified in Section 7.02.
Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A., or any successor in interest.
Net Proceeds from the Notes: The proceeds received by the Trust from time
to time from the issuance and sale of its Notes, less the costs and expenses
incurred in connection with the issuance and sale of such Notes.
Non-U.S. Person: Any person other than a "United States person" as defined
in Section 7701(a)(30) of the Code.
Officer: Those officers of the Trust referred to in Article XI.
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Opinion of Counsel: One or more written opinions of counsel who may, except
as otherwise expressly provided in this Agreement, be employees of or counsel to
the Depositor and who shall be satisfactory to the Owner Trustee and the
Administrator, which opinion shall be addressed to the Owner Trustee and the
Administrator.
Owner Trustee: Wilmington Trust Company, a Delaware banking corporation,
and any successor in interest, not in its individual capacity, but solely as
owner trustee under the Trust Agreement.
Ownership Certificates: Each of the Class X Ownership Certificate and the
Class R Ownership Certificate.
Percentage Interest: With respect to any Ownership Certificate, the
percentage set forth on the face thereof.
Proposer: The Certificateholder making a written request pursuant to
Section 5.07.
Prospective Holder: Each prospective purchaser and any subsequent
transferee of the Ownership Certificates.
Qualified REIT Subsidiary: A direct or indirect 100% owned subsidiary of a
REIT that satisfies the requirements of Section 856(i) of the Code.
REIT: A real estate investment trust within the meaning of Sections 856 and
857 of the Code.
Responsible Officer: With respect to (i) the Owner Trustee, any officer
within the Corporate Trust Office of the Owner Trustee with direct
responsibility for the administration of the Trust and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of, and familiarity with, the particular subject; and
(ii) the Administrator, any officer within the Corporate Trust Office of the
Administrator with direct responsibility for the administration of the Trust and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of, and familiarity with, the
particular subject.
Secretary of State: The Secretary of State of the State of Delaware.
Seller: Aegis REIT Corporation
Single Certificate: An Ownership Certificate representing a 100% Percentage
Interest.
Transfer and Servicing Agreement: The Transfer and Servicing Agreement
dated as of October 1, 2006, by and among the Trust, as Issuer, Aegis Asset
Backed Securities Corporation, as Depositor, Aegis REIT Corporation, as Seller,
▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and Administrator, Ocwen Loan
Servicing, LLC, as Servicer and Deutsche Bank National Trust Company, as
Indenture Trustee and Custodian, as such may be amended or supplemented from
time to time.
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Trust: The trust established pursuant to this Agreement which shall carry
on its business operations under the name of "Aegis Asset Backed Securities
Trust 2006-1."
Section 1.02. Other Definitional Provisions.
Capitalized terms used herein and not defined herein shall have the same
meanings assigned to them in the Transfer and Servicing Agreement or in the
Indenture, as applicable.
(a) All terms defined in this 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 Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this 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 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 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 Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation."
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as 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 established under this Agreement shall be
referred to as "Aegis Asset Backed Securities Trust 2006-1" in which name the
Owner Trustee and the Officers may conduct the activities contemplated hereby,
including the making and executing of contracts and other instruments on behalf
of the Trust and ▇▇▇ and be sued.
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Section 2.02. Office. The principal office of the Trust shall be in care of
the Owner Trustee, at its Corporate Trust Office. The Trust shall also have an
office in care of the Administrator at its Corporate Trust Office.
Section 2.03. Purpose and Powers. The Trust shall have the power and
authority to engage in any of the following activities:
(a) to issue one or more Classes of Notes from time to time pursuant to the
Indenture and the Ownership Certificates pursuant to this Agreement and to sell,
transfer and exchange such Notes and such Ownership Certificates;
(b) with the proceeds of the sale of the Notes and the Ownership
Certificates, to pay the organizational, start-up and transactional expenses of
the Trust and to pay the balance of the Net Proceeds from the Notes to the
Depositor in consideration of the transfer to the Trust of the Collateral;
(c) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the Indenture and to hold, manage and distribute to the
Certificateholder pursuant to the terms of the Transfer and Servicing Agreement
any portion of the Collateral released from the lien of, and remitted to the
Trust pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Operative Documents
and any Swap Agreement or Cap Agreement to which it is to be a party;
(e) 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
(f) subject to compliance with the Operative Documents, to engage in such
other activities as may be required in connection with conservation of the Trust
Estate and the making of distributions and payments to the Certificateholder 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 Agreement
or the Operative Documents.
Section 2.04. Appointment of the Owner Trustee. The Depositor hereby
appoints the Bank to act as owner trustee (the "Owner Trustee") of the Trust
effective as of the date hereof to have all the rights, powers and duties set
forth herein with respect to accomplishing the purposes of the Trust.
The Owner Trustee is hereby authorized to execute this Agreement, the
Indenture, the Administration Agreement, the Transfer and Servicing Agreement
and any other Operative Document on behalf of the Trust. The Owner Trustee is
hereby authorized to take all actions required or permitted to be taken by it in
accordance with the terms of this Agreement.
Section 2.05. Initial Capital Contribution; Declaration of Trust.
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(a) 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 Closing Date, of the
foregoing contribution which shall constitute the initial corpus of the Trust
Estate and shall be deposited in the Certificate Distribution Account. The
Depositor shall pay organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
(b) The Owner Trustee hereby declares that it will hold the Trust Estate in
trust upon and subject to the conditions set forth herein for the use and
benefit of the Certificateholder, subject to the obligations of the Trust under
the Operative Documents. It is the intention of the parties hereto that the
Trust constitute a statutory trust under the Delaware Trust Statute and that
this Agreement constitute the governing instrument of such statutory trust. No
later than the Closing Date, the Owner Trustee shall cause the filing of the
Certificate of Trust with the Secretary of State. Except as otherwise provided
in this Agreement, the rights of the Certificateholder will be those of
beneficial owners of the Trust.
Section 2.06. Initial Beneficiary. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and until the issuance of
the Ownership Certificates, the Depositor shall be the sole beneficiary of the
Trust.
Section 2.07. Liability of the Holder of the Ownership Certificates. The
Certificateholder shall be liable directly to and shall indemnify any injured
party for all losses, claims, damages, liabilities and expenses of the Trust
(including Liabilities, to the extent not paid out of the Trust Estate);
provided, however, that the Certificateholder shall not be liable for payments
required to be made to or for any losses incurred by a Noteholder in the
capacity of an investor in the Notes. In addition, any third party creditors of
the Trust (other than in connection with the obligations described in the
following sentence for which the Certificateholder shall be liable) shall be
deemed third party beneficiaries of this paragraph. The Certificateholder shall
be liable for any entity level taxes imposed on the Trust. The obligations of
the Certificateholder under this paragraph shall be evidenced by the Ownership
Certificates.
Section 2.08. Situs of Trust. The Trust will be located in the State of
Delaware. All bank accounts maintained by the Owner Trustee on behalf of the
Trust shall be located in the States of Delaware, New York or the jurisdiction
where the Administrator maintains bank accounts with respect to collections on
the Collateral. The only office of the Trust will be as described in Section
2.02 hereof. The Trust shall not have any employees; provided, however, that
nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware. Payments will be received by
the Trust only in Delaware, New York, the jurisdiction in which the
Administrator maintains the Certificate Distribution Account or such other
jurisdiction designated by the Depositor, and payments will be made by the Trust
only from the Trust Accounts or from Delaware, New York or such other
jurisdiction designated by the Depositor.
Section 2.09. Title to Trust Property.
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(a) Subject to the Indenture, title to all of the Trust Estate shall be
vested at all times in the Trust as a separate legal entity until this Agreement
terminates pursuant to Article VIII hereof; provided, however, that if the laws
of any jurisdiction require that title to any part of the Trust Estate be vested
in the trustee of the Trust, then title to that part of the Trust Estate shall
be deemed to be vested in the Owner Trustee or any co-trustee or separate
trustee, as the case may be, appointed pursuant to Article IX of this Agreement.
(b) The Certificateholder shall have beneficial but not legal title to any
part of the Trust Estate. No transfer by operation of law or otherwise of any
interest of the Certificateholder shall operate to terminate this Agreement or
the trusts created hereunder or entitle any transferee to an accounting or to
the transfer to it of any part of the Trust Estate.
Section 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee and the
Administrator as of the Closing Date, as follows:
(a) 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 and had at all
relevant times, and now has, power, authority and the legal right to acquire and
own the Mortgage Loans.
(b) 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 property or the conduct of its
business shall require such qualifications.
(c) The Depositor has the power and authority to execute and deliver any
Operative Document to which it is a party and to carry out its terms; the
Depositor has full power and authority to sell and assign the Collateral to be
sold and assigned to and deposited with the Trust and the Depositor has duly
authorized such assignment and deposit to the Trust by all necessary corporate
action; and the execution, delivery and performance of this Agreement or any
other Operative Document to which it is a party has been duly authorized by the
Depositor by all necessary corporate action and, assuming the due authorization,
execution and delivery of each such agreement by the other parties thereto, each
such agreement constitutes a valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforcement thereof may be subject to or limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) The consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms hereof and thereof 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 certificate 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 Operative Documents); nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the
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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.
(e) There are no proceedings or investigations, pending or, to the best
knowledge of the Depositor, threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties: (i) asserting the invalidity of this
Agreement or any other Operative Document to which the Depositor is a party,
(ii) seeking to prevent the consummation of any of the transactions contemplated
by this Agreement or any other Operative Document to which the Depositor is a
party or (iii) seeking any determination or ruling that might materially and
adversely affect the performance by the Depositor of its obligations under, or
the validity or enforceability of, this Agreement or any other Operative
Document to which the Depositor is a party.
(f) The representations and warranties of the Depositor made pursuant to
the Transfer and Servicing Agreement are true and correct.
(g) This Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended, and the Trust is not required to be
registered as an "investment company" under the Investment Company Act of 1940,
as amended.
Section 2.11. Tax Treatment. The Depositor, the Owner Trustee and the
Initial Holder intend that the Trust be treated for federal income tax purposes
as a Qualified REIT Subsidiary. The Administrator will perform the calculation
of accrual of original issue discount and the amortization of premium on the
Securities.
Section 2.12. Investment Company. Neither the Depositor nor any holder of
the Ownership Certificates 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 of 1940, as amended.
ARTICLE III
THE OWNERSHIP CERTIFICATES AND TRANSFERS OF INTERESTS
Section 3.01. The Ownership Certificates.
(a) Each of the Class X Ownership Certificate and the Class R Ownership
Certificate shall initially be issued as a Single Certificate in definitive,
fully registered form and shall initially be registered in the name of the
Initial Holder. No Ownership Certificate shall be issued in authorized
denominations of less than a 100% Percentage Interest in such Certificate. The
Ownership 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 3.02. An Ownership Certificate
bearing the manual 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 Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Ownership
Certificate or did not hold such offices at the date of authentication and
delivery of such Ownership Certificate. A Person shall become a
Certificateholder and shall be entitled to the rights and subject to the
obligations of a
9
Certificateholder hereunder upon such Person's acceptance of an Ownership
Certificate duly registered in such Person's name pursuant to Section 3.03.
(b) The Class R Ownership Certificate shall have an initial principal
balance of $100.00 and shall not bear interest. The Class R Ownership
Certificate shall represent the right to receive a distribution in reduction of
its principal balance pursuant to Section 4.02 hereof on the Payment Date that
coincides with the termination of the Trust pursuant to Article IX of the
Transfer and Servicing Agreement. The Class X Ownership Certificate shall not
have a principal balance or an interest rate but shall represent the right to
receive all amounts available for distribution pursuant to Section 4.02 hereof,
other than the amount distributable in respect of the Class R Ownership
Certificate.
(c) The Class X Ownership Certificate and the Class R Ownership Certificate
shall not be transferable independently of one another and one Person must, at
all times, own both the Class X Ownership Certificate and the Class R Ownership
Certificate.
Section 3.02. Execution, Authentication and Delivery of the Ownership
Certificates.
Concurrently with the sale of the Collateral to the Trust pursuant to the
Transfer and Servicing Agreement, the Owner Trustee shall cause the Ownership
Certificates issued hereunder to be executed and authenticated on behalf of the
Trust and authenticated and delivered to the Initial Holder 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. The
Ownership Certificates shall not entitle a Certificateholder to any benefits
under this Agreement or be valid for any purpose unless there shall appear on
such Ownership Certificates a certificate of authentication substantially in the
form set forth in Exhibit A-X or Exhibit A-R hereto, as applicable, executed by
the Certificate Registrar, as the Owner Trustee's authenticating agent, by
manual signature; such authentication shall constitute conclusive evidence that
such Ownership Certificates shall have been duly authenticated and delivered
hereunder. An Ownership Certificate shall be dated the date of its
authentication.
Section 3.03. Registration of and Limitations on Transfers and Exchanges of
the Ownership Certificates. The Certificate Registrar shall keep or cause to be
kept, at the office or agency maintained pursuant to Section 3.08, a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Certificate Registrar shall provide for the registration of the Ownership
Certificates and of transfers and exchanges of the Ownership Certificates as
herein provided; provided, however, that no Ownership Certificate shall be
issued in any such transfer and exchange representing less than a 100%
Percentage Interest in such Certificate; and provided, further, that no
Ownership Certificate shall be issued in any such transfer and exchange except
in accordance with the provisions and conditions set forth below in this Section
3.03. The Administrator shall be the initial Certificate Registrar. If the
Certificate Registrar resigns or is removed, the Owner Trustee, with the consent
of the Depositor, shall appoint a successor Certificate Registrar. No Ownership
Certificate shall be issued except to a Holder that shall be the Holder of both
the Class X Ownership Certificate and the Class R Ownership Certificate.
10
Subject to satisfaction of the conditions set forth below, upon surrender
for registration of transfer of the Ownership Certificates at the office or
agency maintained pursuant to Section 3.08, the Owner Trustee shall execute,
authenticate and deliver (or cause the Administrator as its authenticating agent
to authenticate and deliver), in the name of the designated transferee, new
Ownership Certificates evidencing the Percentage Interest of the Ownership
Certificates so surrendered and dated the date of authentication by the Owner
Trustee or the Certificate Registrar.
Every Ownership Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Ownership 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 the Ownership 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 the Ownership Certificates or any other expense arising as a result
of any registration of transfer or exchange.
The preceding provisions of this Section notwithstanding, the Owner Trustee
shall not make and the Certificate Registrar shall not register transfer or
exchanges of the Ownership Certificates for a period of 15 days preceding the
due date for any payment with respect to the Ownership Certificates.
No transfer of the Ownership Certificates shall be made unless such
transfer 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. Except in the case of the initial transfer to the Initial Holder, in the
event of any such transfer, the Certificate Registrar or the Depositor shall
prior to such transfer require the transferee to execute an investment letter
(in the form attached hereto as Exhibit D) certifying to the Trust, the Owner
Trustee, the Administrator, the Certificate Registrar and the Depositor that
such transferee is a "qualified institutional buyer" under Rule 144A under the
Securities Act, and any expense associated with the preparation and execution of
any such investment letter shall not be an expense of the Trust, the Owner
Trustee, the Administrator, the Certificate Registrar or the Depositor. A Holder
desiring to effect the transfer of the Ownership Certificates shall, and does
hereby agree to, indemnify the Trust, the Owner Trustee, the Administrator, the
Certificate Registrar and the Depositor against any and all liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
Except in the case of the initial transfer to the Initial Holder, no
transfer of the Ownership Certificates shall be made unless the Certificate
Registrar shall have received a representation letter (in the form attached
hereto as Exhibit D) from the proposed transferee of such Ownership Certificates
to the effect that such proposed transferee is not an employee benefit plan or
other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of
the Code, or any substantially similar applicable law, or a Person acting on
behalf of or using the assets of any
11
such plan, which representation letter shall not be an expense of the Trust, the
Owner Trustee, the Administrator, the Certificate Registrar or the Depositor.
Prior to and as a condition of the registration of any transfer, sale or
other disposition of the Ownership Certificates, the Initial Holder of the
Ownership Certificates and each Prospective Holder of the Ownership Certificates
shall represent and warrant in writing, in substantially the form set forth in
Exhibit F hereto, to the Owner Trustee, the Administrator and the Certificate
Registrar and any of their respective successors that:
(i) Such Person is duly authorized to purchase the Ownership
Certificates and its purchase of investments having the characteristics of
the Ownership Certificates is authorized under, and not directly or
indirectly in contravention of, any law, charter, trust instrument or other
operative document, investment guidelines or list of permissible or
impermissible investments that is applicable to the investor;
(ii) Such Person understands that each holder of the Ownership
Certificates, by virtue of its acceptance thereof, assents to the terms,
provisions and conditions of the Agreement; and
(iii) Such Person is a REIT, a Qualified REIT Subsidiary or a
Disregarded Entity.
The Trust shall cause each Certificate to contain a legend, substantially
in the form of the applicable legends provided in Exhibit A-X or Exhibit A-R
hereto, respectively, stating that transfer of such Certificate is subject to
certain restrictions and referring prospective purchasers of the Certificates to
this Section 3.03 with respect to such restrictions.
Notwithstanding anything to the contrary herein, no transfer, pledge or
encumbrance of any Ownership Certificate shall be made to any Person unless the
Owner Trustee and the Certificate Registrar have received an Opinion of Counsel
(which shall not be an expense of the Owner Trustee or the Certificate
Registrar) to the effect that such transfer, pledge or encumbrance would not
have any adverse effect of the status of the Notes as debt for federal income
tax purposes and would not result in the Trust's becoming taxable for federal
income tax purposes.
If any purported transferee shall become a Holder in violation of the
provisions of this Section, then upon receipt of written notice to the
Certificate Registrar and the Certificate Paying Agent that the registration of
transfer of the Ownership Certificates to such Holder was not in fact permitted
by this Section, then the transfer to that Holder shall be void ab initio and
the last preceding Holder that was and that continues to be eligible in
accordance with the provisions of this Section shall be restored to all rights
as Holder thereof retroactive to the date of such registration of transfer of
the Ownership Certificates. The Certificate Registrar shall be under no
liability to any Person for any registration of transfer of the Ownership
Certificates that is in fact not permitted by this Section, for making any
payment due on such Certificates to the Holder thereof or for taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered upon receipt of the affidavit described in
the immediately preceding paragraph.
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Section 3.04. Lost, Stolen, Mutilated or Destroyed Ownership Certificates.
If (a) a mutilated Ownership Certificate is surrendered to the Certificate
Registrar, or (b) the Certificate Registrar receives evidence to its
satisfaction that an Ownership Certificate has been destroyed, lost or stolen,
and there is delivered to the Certificate Registrar proof of ownership
satisfactory to the Certificate Registrar, together with such security or
indemnity as required by the Certificate Registrar and the Owner Trustee to save
each of them harmless, then in the absence of notice to the Certificate
Registrar or the Owner Trustee that such Ownership 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 Ownership Certificate, a new Ownership Certificate of like tenor and
Percentage Interest. In connection with the issuance of any new Ownership
Certificate under this Section 3.04, 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 any fees and expenses
of counsel) and any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Ownership Certificate issued pursuant to
this Section 3.04 shall constitute conclusive evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Ownership Certificate shall be found at any time.
Section 3.05. Persons Deemed Certificateholders. Prior to due presentation
of the Ownership Certificates for registration of transfer, the Owner Trustee,
the Certificate Registrar or any Certificate Paying Agent may treat the Holder
as the owner of such Ownership Certificates for the purpose of receiving
distributions pursuant to Section 4.02 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 3.06. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish or cause to be furnished to the
Depositor or the Owner Trustee, within 15 days after receipt by the Certificate
Registrar of a written request therefor from the Depositor or the Owner Trustee,
in such form as the Depositor or the Owner Trustee, as the case may be, may
reasonably require, of the name and address of the Holder as of the most recent
Record Date. A Holder, by receiving and holding the Ownership Certificates,
shall be deemed to have agreed not to hold any of the Trust, the Depositor, the
Certificate Registrar, the Owner Trustee accountable or liable for damages by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
Section 3.07. [Reserved]
Section 3.08. Maintenance of Office or Agency. The Certificate Registrar on
behalf of the Trust, shall maintain an office or offices or agency or agencies
where the Ownership Certificates may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Owner Trustee in
respect of the Ownership Certificates and the Operative Documents may be served.
The Certificate Registrar shall give the Owner Trustee prompt notice, in
writing, of any such notice or demand. The Certificate Registrar initially
designates the Corporate Trust Office of the Administrator as its office for
such purposes. The Certificate Registrar shall give prompt written notice to the
Depositor, the Owner Trustee and the
13
Certificateholder of any change in the location of the Certificate Register or
any such office or agency.
Section 3.09. Certificate Paying Agent.
(a) The Owner Trustee may appoint, and hereby appoints, the Administrator
as Certificate Paying Agent under this Agreement. The Certificate Paying Agent
shall make distributions to the Holder from the Certificate Distribution Account
pursuant to Section 4.02 hereof and Section 4.1 of the Transfer and Servicing
Agreement and, upon request, shall report the amounts of such distributions to
the Owner Trustee. The Certificate Paying Agent shall have the revocable power
to withdraw funds from the Certificate Distribution Account for the purpose of
making the distributions referred to above. The Administrator hereby accepts
such appointment and further agrees that it will be bound by the provisions of
this Agreement and the Transfer and Servicing 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 Ownership Certificates in trust for the benefit of the
Person entitled thereto until such sums shall be paid to such Person 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 Administrator has actual knowledge in
the making of any payment required to be made with respect to the Ownership
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) 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 the Ownership 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; and
(v) not institute bankruptcy proceedings against the Trust in
connection with this Agreement.
(b) In the event that the Administrator shall no longer be the Certificate
Paying Agent hereunder, the Owner Trustee, with the consent of the Depositor,
shall appoint a successor to act as Certificate Paying Agent (which shall be a
bank or trust company). 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 in which such
successor Certificate Paying Agent or additional Certificate Paying Agent shall
agree with the Owner Trustee that as Certificate Paying Agent, such successor
Certificate Paying Agent or additional Certificate Paying Agent will hold all
sums, if any, held by it for payment in trust for the benefit of the Holder
entitled thereto until such sums shall be paid to such Holder. The Certificate
Paying Agent shall return all unclaimed funds to the Owner Trustee, and upon
removal of a Certificate Paying Agent, such Certificate Paying Agent shall also
return all funds in its possession to the Owner Trustee. The provisions of
Sections 5.03, 5.04, 6.01, 6.05, 6.07,
14
6.08, 7.01 and 7.02 shall apply to the Administrator also in its role as
Certificate Paying Agent for so long as the Administrator shall act as
Certificate Paying Agent and, to the extent applicable, to any other Certificate
Paying Agent appointed hereunder. Any reference in this Agreement to the
Certificate Paying Agent shall include any co-paying agent unless the context
requires otherwise.
ARTICLE IV
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 4.01. Certificate Distribution Account. All of the right, title and
interest of the Trust in all funds on deposit from time to time in the
Certificate Distribution Account and in all proceeds thereof shall be held for
the benefit of the Holder and such other persons entitled to payments therefrom.
Except as otherwise expressly provided herein or in the Transfer and Servicing
Agreement, the Certificate Distribution Account shall be under the sole dominion
and control of the Owner Trustee for the benefit of the Certificateholder.
The Certificate Distribution Account shall be subject to and established
and maintained in accordance with the applicable provisions of the Transfer and
Servicing Agreement and the Indenture, including, without limitation, the
provisions of Sections 3.5 and 4.1 of the Transfer and Servicing Agreement
regarding distributions from the Certificate Distribution Account.
Section 4.02. Application of Trust Funds.
(a) On each Payment Date, the Owner Trustee shall direct the Certificate
Paying Agent to distribute to the Holder, from amounts on deposit in the
Certificate Distribution Account, after payment of any amounts required to be
paid pursuant to Section 7.02, the distributions as provided in Section 4.1 of
the Transfer and Servicing Agreement with respect to such Payment Date, for
application pursuant to Section 3.01(b) of this Agreement. The Owner Trustee
hereby directs the Certificate Paying Agent to distribute on each Payment Date
to the Holder amounts on deposit in the Certificate Distribution Account in
accordance with Sections 3.5 and 4.1 of the Transfer and Servicing Agreement and
the Certificate Paying Agent hereby acknowledges such direction.
(b) All payments to be made under this Agreement by the Certificate Paying
Agent shall be made only from the income and proceeds of the Trust Estate and
only to the extent that the Certificate Paying Agent has received such income or
proceeds. The Certificate Paying Agent shall not be liable to any Holder, the
Indenture Trustee or the Owner Trustee for any amounts payable pursuant to this
Section 4.02 except to the extent that non-payment is due to the Certificate
Paying Agent's acts or omissions amounting to willful misconduct or gross
negligence.
(c) Distributions to the Holder shall be subordinated to the creditors of
the Trust, including, without limitation, the Noteholders.
Section 4.03. Method of Payment. Subject to Section 8.01(c), distributions
required to be made to the Holder on any Payment Date as provided in Section
4.02 shall be made to the Person who was the Holder on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate
15
facilities therefor, if the Holder 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 Holder at the address of
such Holder appearing in the Certificate Register.
Section 4.04. [Reserved]
Section 4.05. Segregation of Moneys; No Interest. Moneys received by or on
behalf of the Owner Trustee hereunder and deposited into the Certificate
Distribution Account will be segregated except to the extent required otherwise
by law or the provisions of the Transfer and Servicing Agreement. The Owner
Trustee shall not be liable for payment of any interest in respect of such
moneys.
ARTICLE V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE;
ACTION BY CERTIFICATEHOLDERS
Section 5.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Notes, the Ownership Certificates, and the
other Operative 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
Operative 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, and, on behalf of the Trust, to direct the
Owner Trustee to authenticate the Notes. 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 Operative Documents.
Section 5.02. General Duties.
(a) 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 Agreement
and the other Operative Documents to which the Trust is a party and to
administer the Trust in the interest of the Certificateholder, subject to the
Operative Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Operative
Documents to the extent the Administrator has agreed in the Administration
Agreement, the Transfer and Servicing Agreement or this Agreement, respectively,
to perform any act or to discharge any duty of the Owner Trustee or the Trust
hereunder or under any Operative Document, and the Owner Trustee shall not be
held liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement, this Agreement, the Transfer and
Servicing Agreement, or any other Operative Document, respectively; and
(b) It shall be the duty of the Depositor under the Administration
Agreement to obtain and preserve the Trust's qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Indenture, the Notes, the
Collateral and each other instrument and agreement included in the Trust Estate.
It shall be the duty of the Owner Trustee to cooperate with the Depositor with
respect to such matters.
Section 5.03. Action Upon Instruction.
16
(a) Subject to this Article V and in accordance with the terms of the
Operative Documents, the Holder may by written instruction direct the Owner
Trustee in the management of the Trust, but only to the extent consistent with
the limited purpose of the Trust. Such direction may be exercised at any time by
written instruction of the Holder pursuant to this Article V.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be required
to take any action hereunder or under any Operative 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 Operative Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or under
any other Operative Document, or in the event that the Owner Trustee is unsure
as to the application of any provision of this Agreement or any other Operative
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 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 may
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Holder 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 Holder, 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
Agreement or any other Operative Document, as it shall deem to be in the best
interests of the Holder, and the Owner Trustee shall have no liability to any
Person for such action or inaction.
Section 5.04. 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 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 or the Issuer 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 Agreement, and (ii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 5.03; and no implied duties or obligations shall be read
into this Agreement or any Operative Document against the Owner Trustee. The
Owner Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to the Trust
or to prepare or file any Securities and Exchange Commission filing for the
Trust or to record this Agreement or any Operative Document or to prepare or
file any tax return for the Trust. 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 Trust Estate that result from actions
by, or claims against the Bank that are not related to the ownership or the
administration of the Trust Estate.
17
Section 5.05. Restrictions.
(a) The Owner Trustee shall not take any action that is inconsistent with
the purposes of the Trust set forth in Section 2.03. The Holder shall not direct
the Owner Trustee to take action that would violate the provisions of this
Section 5.05.
(b) The Owner Trustee shall not, except as provided herein, convey or
transfer any of the Trust's properties or assets, including those included in
the Trust Estate, to any person unless such conveyance or transfer shall not
violate the provisions of the Indenture.
Section 5.06. Prior Notice to the Holder 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 Holder in writing of the proposed action and the Holder
shall have notified the Owner Trustee in writing prior to the 30th day after
such notice is given that such Holder has consented to such action 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 Collateral) 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
Collateral);
(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 Delaware Trust
Statute);
(c) the amendment of the Indenture by a supplemental indenture or of this
Agreement or any other Operative Document in circumstances where the consent of
any Noteholder is required;
(d) the amendment or other change of the Indenture by a supplemental
indenture or of this Agreement, the Swap Agreement, the Cap Agreement or any
other Operative Document in circumstances where the consent of any Noteholder is
not required and such amendment materially adversely affects the interests of
the Holder;
(e) the amendment of the Transfer and Servicing Agreement in circumstances
where the consent of any Securityholder is required;
(f) the amendment, change or modification of the Administration Agreement,
except to cure any ambiguity or to amend or supplement any provision in a manner
or add any provision that would not materially and adversely affect the
interests of the Holder;
(g) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this 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 Agreement, as applicable;
18
(h) the consent to the calling or waiver of any default of any Operative
Document;
(i) the consent to the assignment by the Indenture Trustee of its
obligations under any Operative Document;
(j) except as provided in Article VIII hereof, dissolve, terminate or
liquidate the Trust in whole or in part;
(k) the merger, conversion or consolidation of the Trust with or into any
other entity, or conveyance or transfer of all or substantially all of the
Trust's assets to any other entity;
(l) the incurrence, assumption or guaranty by the Trust of any indebtedness
other than as set forth in this Agreement;
(m) the taking of any action which conflicts with any Operative Document or
would make it impossible to carry on the ordinary business of the Trust or
change the Trust's purpose and powers set forth in this Agreement;
(n) the confession of a judgment against the Trust;
(o) the possession of the Trust assets, or assignment of the Trust's right
to property, for other than a Trust purpose; or
(p) the lending of funds by the Trust to any entity.
In addition, the Trust shall not commingle its assets with those of any
other entity. The Trust shall maintain its financial and accounting books and
records separate from those of any other entity. Except as expressly set forth
herein, the Trust shall pay its indebtedness, operating expenses and liabilities
from its own funds, and the Trust shall neither incur any indebtedness nor pay
the indebtedness, operating expenses and liabilities of any other entity. Except
as expressly set forth herein, the Trust shall not engage in any dissolution,
liquidation, consolidation, merger or sale of assets. The Trust shall maintain
appropriate minutes or other records of all appropriate actions and shall
maintain its office separate from the offices of the Depositor or any of its
Affiliates. The Trust shall not engage in any business activity in which it is
not currently engaged other than as contemplated by the Operative Documents and
related documentation. The Trust shall not form, or cause to be formed, any
subsidiaries and shall not own or acquire any asset other than as contemplated
by the Operative Documents and related documentation. Other than as contemplated
by the Operative Documents and related documentation, the Trust shall not follow
the directions or instructions of the Depositor. The Trust shall conduct its own
business in its own name. The Trust shall observe all formalities required under
the Delaware Trust Statute. The Trust shall not hold out its credit as being
available to satisfy the obligations of any other person or entity. The Trust
shall not acquire the obligations or securities of its Affiliates or the Seller.
Other than as contemplated by the Operative Documents and related documentation,
the Trust shall not pledge its assets for the benefit of any other person or
entity. The Trust shall correct any known misunderstanding regarding its
separate identity. The Trust shall not identify itself as a division of any
other person or entity.
19
For accounting purposes, the Trust shall be treated as an entity separate
and distinct from the Holder. The pricing and other material terms of all
transactions and agreements to which the Trust is a party shall be intrinsically
fair to all parties thereto. This Agreement is and shall be the only agreement
among the parties thereto with respect to the creation, operation and
termination of the Trust.
The Owner Trustee shall not have the power, except upon the written
direction of the Holder, and to the extent otherwise consistent with the
Operative Documents, to (i) remove or replace the Indenture Trustee, or (ii)
institute a bankruptcy against the Trust. So long as the Indenture remains in
effect, to the extent permitted by applicable law, the Holder shall have no
power to commence, and shall not commence, any bankruptcy with respect to the
Trust or direct the Owner Trustee to commence any bankruptcy with respect to the
Trust.
(q) The Owner Trustee shall not have the power, except upon the written
direction of the Holder, to (i) remove the Administrator under the
Administration Agreement pursuant to Section 9 thereof, (ii) appoint a successor
Administrator pursuant to Section 9 of the Administration Agreement, or (iii)
except as expressly provided in the Indenture, to sell the Collateral after the
termination of the Indenture. The Owner Trustee shall take the actions referred
to in the preceding sentence only upon written instructions signed and
authorized by the Holder.
Section 5.07. Action by the Holder with Respect to Bankruptcy. The Owner
Trustee shall not have the power to commence or consent to a bankruptcy relating
to the Trust without the prior approval of the Holder and the delivery to the
Owner Trustee by the Holder of a certificate certifying that the Holder
reasonably believes that the Trust is insolvent. This paragraph shall survive
for one year and one day following termination of this Agreement. So long as the
Indenture remains in effect, the Holder shall not have the power to institute,
and shall not institute, any bankruptcy with respect to the Trust or direct the
Owner Trustee to take such action.
Section 5.08. Restrictions on the Holder's Power. The Holder 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 Agreement or any of the Operative Documents or would be
contrary to Section 2.03 nor shall the Owner Trustee be obligated to follow any
such direction, if given.
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 the same but only upon the terms
of this Agreement. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Trust Estate upon the terms of this
Agreement. The Bank shall not be answerable or accountable hereunder or under
any other Operative Documents under any circumstances, except (i) for its own
willful misconduct, gross negligence or bad faith, (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 6.04, (iii)
for liabilities arising from the failure by the Bank to perform obligations
expressly undertaken by it in the last sentence of Section 5.04, or (iv) for
taxes, fees or other charges based on or measured by any fees, commissions or
20
compensation received by the Bank in connection with any of the transactions
contemplated by this Agreement, any other Operative Documents or the Notes. In
particular, but not by way of limitation:
(a) The Bank shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Owner Trustee;
(b) The Bank shall not be liable with respect to any action taken or
omitted to be taken by the Owner Trustee in accordance with the instructions of
the Holder;
(c) No provision of this Agreement shall require the Bank to expend or risk
funds or otherwise incur any financial liability in the performance of any of
the Owner Trustee's rights or powers hereunder or under any other Operative
Documents if the Bank 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;
(d) Under no circumstance shall the Bank be liable for indebtedness
evidenced by or arising under any of the Operative Documents, including the
principal of and interest on the Notes;
(e) The Bank shall not be liable with respect to any action taken or
omitted to be taken by the Depositor, the Administrator, the Master Servicer,
the Indenture Trustee, any Officer or the Certificate Paying Agent under this
Agreement or any other Operative Document or otherwise and the Bank shall not be
obligated to perform or monitor the performance of any obligations or duties
under this Agreement or the other Operative Documents which are to be performed
by the Certificate Paying Agent under this Agreement, the Administrator under
the Administration Agreement, the Indenture Trustee under the Indenture or by
any other Person under any of the Operative Documents; and
(f) The Bank shall not be responsible for or in respect of the recitals
herein, the validity or sufficiency of this Agreement or for the due execution
hereof by the Depositor or for the form, character, genuineness, sufficiency,
value or validity of any of the Trust Estate or for or in respect of the
validity or sufficiency of the Operative Documents, other than the certificate
of authentication on the Ownership Certificates, and the Bank shall in no event
assume or incur any liability, duty or obligation to any Noteholder, the
Depositor or to the Holder, other than as expressly provided for herein.
Section 6.02. Furnishing of Documents. The Owner Trustee will furnish to
the Administrator (for distribution to the Holder), promptly upon receipt of a
written request therefor, duplicates or copies of all reports, notices,
requests, demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee hereunder or under the Operative Documents unless
the Administrator shall have already received the same.
Section 6.03. Books and Records. The Owner Trustee shall keep or cause to
be kept proper books of record and account of all the transactions under this
Agreement, including a record of the name and address of the Holder. The Owner
Trustee shall be deemed to have complied with this Section 6.03 by the
appointment of the Administrator and the Certificate Paying Agent to perform the
duties hereunder.
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Section 6.04. Representations and Warranties.
(a) The Bank represents and warrants to the Depositor, for the benefit of
the Holder, as follows:
(i) the Bank is a banking corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the
power and authority to execute, deliver and perform its obligations under
this Agreement and (assuming due authorization, execution and delivery of
this Agreement by the Depositor and Administrator), has the power and
authority as Owner Trustee to execute and deliver the Operative Documents
and to perform its obligations thereunder and, assuming the due
authorization, execution and delivery hereof by the other parties hereto,
this Agreement constitutes a legal, valid and binding obligation of the
Bank or the Owner Trustee, as the case may be, enforceable against the Bank
or the Owner Trustee, as the case may be, in accordance with its terms,
except that (a) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought;
(ii) the Bank has no reason to believe that anyone authorized to act
on its behalf has offered any interest in and to the Trust for sale to, or
solicited any offer to acquire any of the same from, anyone;
(iii) the execution, delivery and performance by the Bank, either in
its individual capacity or as Owner Trustee, as the case may be, of the
Operative Documents will not result in any violation of, or be in any
conflict with, or constitute a default under any of the provisions of any
indenture, mortgage, chattel mortgage, deed of trust, conditional sales
contract, lease, note or bond purchase agreement, license, judgment, order
or other agreement to which the Bank is a party or by which it or any of
its properties is bound;
(iv) the execution and delivery by the Bank of this Agreement, and the
performance of its duties as Owner Trustee hereunder, do not require the
consent or approval of, the giving of notice to, or the registration with,
or the taking of any other action with respect to, any governmental
authority or agency of the State of Delaware (except as may be required by
the Delaware Trust Statute); and
(v) there are no pending or, to the best of its knowledge, threatened
actions or proceedings against the Bank before any court, administrative
agency or tribunal which, if determined adversely to it, would materially
and adversely affect its ability, either in its individual capacity or as
Owner Trustee, as the case may be, to perform its obligations under this
Agreement or the Operative Documents.
(b) ▇▇▇▇▇ Fargo Bank, N.A., as Administrator, hereby represents and
warrants to the Depositor, for the benefit of the Holder, that:
22
(i) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States, and has the
power and authority to execute, deliver and perform its obligations under
this Agreement and, assuming the due authorization, execution and delivery
hereof by the other parties hereto, this Agreement constitutes a legal,
valid and binding obligation of the Administrator, enforceable against the
Administrator in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding therefor may
be brought;
(ii) it has taken all action necessary to authorize the execution and
delivery by it of this Agreement, and this Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and
deliver this Agreement on its behalf; and
(iii) neither the execution nor the delivery by it of this 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, governmental rule or regulation governing the banking or trust
powers of the Administrator or any judgment or order binding on it, or
constitute any default under its charter documents or by-laws or any
indenture, mortgage, contract, agreement or instrument to which it is a
party or by which any of its properties may be bound.
Section 6.05. Reliance; Advice of Counsel.
(a) Except as provided in Section 6.01, the Owner Trustee shall incur no
liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it 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
or partnership entity as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the manner of ascertainment of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president (or the general
partner, in the case of a partnership) and by the treasurer or any assistant
treasurer or the secretary or any assistant secretary 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 its exercise or administration of the trusts and powers hereunder,
including its obligations under Section 5.02(b), and in the performance of its
duties and obligations under this Agreement or the other Operative Documents,
the Owner Trustee may employ agents and attorneys and enter into agreements
(including the Administration Agreement) with any of them, and the Owner Trustee
shall not be answerable for the default or misconduct of any such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care. If, and to the extent, the Depositor shall have
failed to reimburse the Owner Trustee for all reasonable expenses and
indemnities incurred pursuant to this Section 6.05(b), as
23
provided in Sections 7.01 and 7.02, the Owner Trustee may seek reimbursement
therefor from the Trust Estate.
(c) In the administration of the trusts and performance of its duties
hereunder, the Owner Trustee may consult with counsel, accountants and other
skilled Persons to be selected and employed by it, and the Owner Trustee shall
not be liable for anything done, suffered or omitted in good faith by it in
accordance with the reasonable advice or opinion of any such counsel,
accountants or other skilled Persons. If, and to the extent, the Depositor shall
have failed to reimburse the Owner Trustee for all reasonable expenses and
indemnities incurred pursuant to this Section 6.05(c), as provided in Sections
7.01 and 7.02, the Owner Trustee may seek reimbursement therefor from the Trust
Estate.
Section 6.06. Not Acting in Individual Capacity. Except as provided in this
Article VI, in accepting the trusts hereby created the Owner Trustee acts solely
as 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 the Operative Documents shall look only to the Trust Estate for payment or
satisfaction thereof.
Section 6.07. Owner Trustee Not Liable for Ownership Certificates or
Collateral. The recitals contained herein and in the Ownership Certificates
(other than the signature and countersignature of the Owner Trustee on the
Ownership 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
Agreement, of any Operative Document or of the Ownership Certificates (other
than the signature and countersignature of the Owner Trustee on the Ownership
Certificates) or the Notes, or of any Collateral or related documents. The Owner
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Collateral, or the
perfection and priority of any security interest created by any Collateral or
the maintenance of any such perfection and priority, or for or with respect to
the sufficiency of the Trust Estate or its ability to generate the payments to
be distributed to Certificateholders under this Agreement or the Noteholders
under the Indenture, including, without limitation: the existence, condition and
ownership of any Collateral; the existence and enforceability of any insurance
thereon; the existence and contents of any Collateral on any computer or other
record thereof; the validity of the assignment of any Collateral to the Trust or
of any intervening assignment; the completeness of any Collateral; the
performance or enforcement of any Collateral; the compliance by the Depositor
with any warranty or representation made under any Operative Documents or in any
related document or the accuracy of any such warranty or representation or any
action of the Administrator or the Indenture Trustee taken in the name of the
Owner Trustee.
Section 6.08. Owner Trustee May Own Ownership Certificates and Notes. The
Owner Trustee in its individual capacity may become the Holder (provided that if
the Owner Trustee should acquire the Ownership Certificates, it shall be a REIT,
a Qualified REIT Subsidiary or a Disregarded Entity) or the owner or pledgee of
Notes and may deal with the Depositor, the Administrator and the Indenture
Trustee in banking transactions with the same rights as it would have if it were
not Owner Trustee.
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Section 6.09. Licenses. The Depositor shall cause the Trust to use its best
efforts to obtain and maintain the effectiveness of any licenses required in
connection with this Agreement and the other Operative Documents and the
transactions contemplated hereby and thereby until such time as the Trust shall
terminate in accordance with the terms hereof. It shall be the duty of the Owner
Trustee to cooperate with the Depositor with respect to such matters.
Section 6.10. Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither the Bank nor the Owner
Trustee shall be required to take any action in any jurisdiction other than in
the State of Delaware if the taking of such action will (i) require the consent
or approval or authorization or order of or the giving of notice to, or the
registration with or the taking of any other action in respect of, any state or
other governmental authority or agency of any jurisdiction other than the State
of Delaware; (ii) result in any fee, tax or other governmental charge under the
laws of any jurisdiction or any political subdivisions thereof in existence on
the date hereof other than the State of Delaware becoming payable by the Bank or
the Owner Trustee; or (iii) subject the Bank or the Owner Trustee to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes of
action arising from acts unrelated to the consummation of the transactions by
the Bank or the Owner Trustee, as the case may be, contemplated hereby. The
Owner Trustee shall be entitled to obtain advice of counsel (which advice shall
be an expense of the Trust) to determine whether any action required to be taken
pursuant to this Agreement results in the consequences described in clauses (i),
(ii) and (iii) of the preceding sentence. In the event that such counsel advises
the Owner Trustee that such action will result in such consequences, the Owner
Trustee will appoint a co-trustee pursuant to Section 9.05 hereof to proceed
with such action.
Section 6.11. Reporting Requirements of the Commission.
(a) The Depositor, the Administrator and the Owner Trustee acknowledge and
agree that the purpose of this Section 6.11 is to facilitate compliance by the
Depositor with the provisions of Regulation AB. Neither the Depositor nor the
Administrator shall exercise its right to request delivery of information or
other performance under these provisions other than in good faith, or for
purposes other than the Depositor's compliance with Regulation AB. The Owner
Trustee agrees to cooperate in good faith with any reasonable request made by
the Depositor or the Administrator for information regarding the Owner Trustee
which is required in order to enable the Depositor to comply with the provisions
of Regulation AB, including, without limitation, Items 1109(a), 1109(b), 1117
and 1119(a) and (b) of Regulation AB as it relates to the Owner Trustee or to
the Owner Trustee's obligations under this Trust Agreement.
(b) For so long as the Depositor is required to file reports with respect
to the Notes under Regulation AB, the Owner Trustee shall, as promptly as
practicable, notify the Depositor and the Administrator, in writing, of: (i) the
commencement of or, if applicable, the termination of, any and all legal
proceedings pending against the Owner Trustee or any and all proceedings of
which any property of the Owner Trustee is the subject, that is material to
Securityholders; and (ii) any such proceedings known to be contemplated by
governmental authorities. The Owner Trustee shall also notify the Depositor and
the Administrator in writing, as promptly as practicable following notice to or
discovery by a Responsible Officer of the Owner Trustee of any material changes
to proceedings described in the preceding sentence. In addition, the Owner
Trustee shall furnish to the Depositor and the Administrator, in writing, the
necessary disclosure regarding the
25
Owner Trustee describing such proceedings required to be disclosed under Item
1117 of Regulation AB, for inclusion in reports filed by or on behalf of the
Depositor with the Commission.
For so long as the Notes are outstanding and the Depositor is required to
report under Regulation AB with respect to the Notes, the Owner Trustee shall,
no later than January 31st of each calendar year, provide to the Depositor and
the Administrator such information regarding the Owner Trustee as is required
for the purpose of compliance with Items 1109(a), 1109(b), 1119(a) and 1119(b)
of Regulation AB; and (ii) as promptly as practicable following notice to or
discovery by a Responsible Officer of the Owner Trustee of any changes to such
information, provide to the Depositor and the Administrator, in writing, such
updated information. Such information shall include, at a minimum:
(A) the Owner Trustee's name and form of organization;
(B) a description of the extent to which the Owner Trustee has had
prior experience serving as a trustee for asset-backed securities transactions
involving mortgage backed securities; and
(C) a description of any affiliation between the Owner Trustee and any
of the parties identified in Exhibit H.
In addition, the Owner Trustee shall provide a description of whether there
is, and if so the general character of, any business relationship, agreement,
arrangement, transaction or understanding between the Owner Trustee and any of
the parties identified in Exhibit H that is entered into outside the ordinary
course of business or is on terms other than would be obtained in an arm's
length transaction with an unrelated third party, apart from this transaction,
that currently exists or that existed during the past two years and that is
material to an investor's understanding of the Notes.
With respect to the information required to be provided under this Section
6.11(b), the Owner Trustee shall not be required to provide such information in
the event that there has been no change to the information previously provided
by the Owner Trustee to the Depositor. In connection with each report on Form
10-K with respect to the Notes and each report on Form 10-D with respect to the
Notes filed by or on behalf of the Depositor, the Owner Trustee shall be deemed
to represent and warrant, as of March 15th for the report on Form 10-K and as of
the related Payment Date for the report on Form 10-D, that any information
previously provided by the Owner Trustee under this Section 6.11 is materially
correct and does not contain any material omissions unless the Owner Trustee has
provided an update to such information.
ARTICLE VII
INDEMNIFICATION AND COMPENSATION
Section 7.01. Trust Expenses. The Depositor shall pay or cause the payment
of the organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee in connection therewith. The Depositor shall
also pay or cause the payment of (or reimbursement to the Bank for) all
reasonable expenses of the Owner Trustee hereunder,
26
including, without limitation, the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may employ in connection with the exercise and performance of its rights
and duties under the Operative Documents.
Section 7.02. Indemnification.
(a) To the fullest extent permitted by applicable law, the Bank and its
successors, assigns, agents and servants (collectively, the "Indemnified
Parties") shall be entitled to be indemnified and held harmless from and against
any and all liabilities, obligations, indemnity obligations, losses (excluding
loss of anticipated profits), damages, taxes, claims, actions, suits, judgments
and any and all reasonable out-of-pocket costs, expenses and disbursements
(including legal and consultants' fees and expenses) of any kind and nature
whatsoever (collectively, the "Liabilities") that may be imposed on, incurred by
or asserted at any time against any Indemnified Party or the Owner Trustee in
any way relating to or arising out of this Agreement, the Operative Documents,
the Trust Estate, the administration of the Trust Estate or any action or
inaction of the Owner Trustee hereunder or under the Operative Documents, except
to the extent that such Liabilities arise out of or result from (i) the Bank's
own willful misconduct, fraud or gross negligence, (ii) the inaccuracy of any of
the Bank's representations or warranties contained in Section 6.04 of this
Agreement, (iii) the Bank's failure to perform obligations expressly undertaken
by it in this Agreement; (iv) taxes based on or measured by any fees,
commissions or compensation received by the Bank for acting as Owner Trustee in
connection with any of the transactions contemplated by this Agreement or any
other Operative Document and (v) the Bank's failure to use due care to receive,
manage and disburse moneys actually received by it in accordance with the terms
hereof. The indemnities contained in this Section 7.02(a) shall survive the
termination of this Agreement and the removal or resignation of the Owner
Trustee hereunder. In the event of any claim, action or proceeding for which
indemnity will be sought pursuant to this Section, the Owner Trustee's choice of
legal counsel shall be subject to the approval of the Depositor, which approval
shall not be unreasonably withheld.
(b) Any fees, reimbursements and indemnities to an Indemnified Party or the
Owner Trustee pursuant to this Section 7.02 shall be payable: first, out of
amounts on deposit in the Certificate Distribution Account prior to payments on
the Ownership Certificates; second, to the extent not paid pursuant to clause
first within 60 days of first being incurred, by the Certificateholder, on a
joint and several basis; and third, to the extent not paid pursuant to clause
first and second within 60 days of first being incurred, by Aegis Mortgage
Corporation. If any amounts shall be on deposit in the Certificate Distribution
Account subsequent to the payment of any reimbursement or indemnification
amounts pursuant to clauses second or third of the preceding sentence, then
reimbursement for such payment shall be payable out of amounts on deposit in the
Certificate Distribution Account prior to payments on the Ownership Certificates
on any Payment Date first to Aegis Mortgage Corporation and second to the
Certificateholder who made payment pursuant to clause second of the preceding
sentence, in each case to the extent of the payment made by it to the
Indemnified Party or the Owner Trustee pursuant to the preceding sentence.
Section 7.03. Compensation. The Bank shall receive as compensation for its
services hereunder such fees as are set forth in the fee letter agreement
between the Bank and the Depositor attached hereto as Exhibit E. The Master
Servicer shall pay from income on funds
27
held in the Collection Account the Owner Trustee Fee, as provided in Section
3.8(b) of the Transfer and Servicing Agreement, and the Administrator shall pay
out of the Distribution Account any other fees, as provided in Section 3.8(c) of
the Transfer and Servicing Agreement.
Section 7.04. Lien on Trust Estate. The Bank shall have a lien on the Trust
Estate for any compensation or indemnity due hereunder, such lien to be subject
only to prior liens of the Indenture. The Bank shall not bring any proceedings
to foreclose on such lien if and to the extent the Trust Estate is subject to
the lien of the Indenture. Any amount paid to the Owner Trustee pursuant to this
Article VII shall be deemed not to be part of the Trust Estate immediately after
such payment.
ARTICLE VIII
TERMINATION OF AGREEMENT
Section 8.01. Termination of Agreement.
(a) This Agreement (other than Article VII) shall terminate and the trusts
created hereby shall dissolve and terminate and the Trust Estate shall, subject
to the Indenture and Sections 4.01 and 7.04 and Section 3808 of the Delaware
Trust Statute, be distributed to the Holder, and this Agreement shall be of no
further force or effect, upon the earlier of (i) the full payment of principal
and interest due on all Classes of the Notes; and (ii) the sale or other final
disposition by the Indenture Trustee or the Owner Trustee, as the case may be,
of all the Trust Estate and the final distribution by the Administrator or the
Owner Trustee, as the case may be, of all moneys or other property or proceeds
of the Trust Estate in accordance with the terms of the Indenture, the Transfer
and Servicing Agreement and Section 4.02. The bankruptcy, liquidation or
dissolution of the Holder shall not operate to terminate this Agreement, nor
entitle such Holder's legal representatives to claim an accounting or to take
any action or proceeding in any court for a partition or winding up of the Trust
Estate, nor otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor the
Holder shall be entitled to revoke or terminate the Trust established hereunder.
(c) Notice of any termination of the Trust, specifying the Payment Date
upon which the Holder shall surrender the Ownership 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 the Holder and the
Rating Agencies mailed within five Business Days of receipt of notice of the
final payment on the Notes pursuant to the Transfer and Servicing Agreement,
stating (i) the Payment Date upon or with respect to which final payment of the
Ownership Certificates shall be made upon presentation and surrender of the
Ownership 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 Ownership Certificates at the
office of the Certificate Paying 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 the Holder. Upon presentation and surrender
of the Ownership Certificates, the Certificate Paying
28
Agent shall cause to be distributed to the Holder amounts distributable on such
Payment Date pursuant to Section 4.1 of the Transfer and Servicing Agreement.
(d) Upon the winding up of the Trust and its termination, the Owner Trustee
shall upon the written request of the Depositor 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 of the Delaware 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 Delaware Trust Statute; authorized to exercise corporate 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
which has) a short-term debt rating of at least "A-1" or the equivalent by, or
which 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,
the Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 9.02.
Section 9.02. Resignation or Removal 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, the Holder and
the Indenture Trustee. 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 one copy 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. If the Depositor shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the Depositor
shall promptly appoint a successor Owner Trustee by written instrument in
duplicate, one copy of which instrument shall be delivered to the outgoing Owner
Trustee so removed and one copy to the successor Owner Trustee and payment of
all fees owed to the outgoing Owner Trustee.
29
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 Administrator shall provide notice of such
resignation or removal of the Owner Trustee to 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
Administrator and to its predecessor Owner Trustee an instrument accepting such
appointment under this 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 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 Agreement; and the Administrator 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 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, the Administrator shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Administrator fails to mail such notice within 10
days after acceptance of appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
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, provided
such Person shall be eligible pursuant to Section 9.01, 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.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate or any Collateral may at the time be located, and for the
purpose of performing certain duties and obligations of the Owner Trustee with
respect to the Trust and the Certificates under the Transfer and Servicing
Agreement, the Owner Trustee shall have the power and shall execute and deliver
all instruments to appoint one or more Persons approved by the Owner Trustee to
act as co-trustee, jointly with the Owner Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Estate,
30
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 Agreement
shall be required to meet the terms of eligibility as a successor 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.
The Owner Trustee hereby appoints the Administrator for the purpose of
establishing and maintaining the Certificate Distribution Account and making the
distributions therefrom to the Persons entitled thereto pursuant to Section 4.1
of the Transfer and Servicing Agreement.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provision 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 Trust 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 Agreement shall be personally liable by reason of
any act or omission of any other trustee under this Agreement; and
(c) the Administrator and the Owner Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to the separate trustees and co-trustees, as if given
to each of them. Every instrument appointing any separate trustee or co-trustee,
other than this Agreement, shall refer to this Agreement and to the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
appointment, shall be vested with the estates 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 Agreement, specifically
including every provision of this 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 and a copy thereof given
to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its Agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
31
ARTICLE X
MISCELLANEOUS
Section 10.01. Supplements and Amendments. This Agreement may be amended by
the Depositor, the Administrator and the Owner Trustee, with the consent of the
Holder and with prior written notice to the Rating Agencies, but without the
consent of any of the Noteholders or the Indenture Trustee, to (a) cure any
ambiguity, to correct or supplement any provisions in this Agreement or for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions in this Agreement or of modifying in any manner the rights of
the Noteholders or the Holder or (b) to comply with any SEC Rules (as defined in
Section 10.13 hereof); provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any Noteholder or the Holder or adversely affect the tax status of
the Trust. An amendment shall not be deemed to adversely affect in any material
respect the interests of any Noteholder or the Holder and no opinion referred to
in the preceding proviso shall be required to be delivered if the Person
requesting the amendment obtains a letter from each Rating Agencies stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to each Class of Notes. Notwithstanding the
preceding sentence, an opinion shall be required with respect to tax matters as
set forth in this paragraph. Notwithstanding the foregoing, neither an Opinion
of Counsel nor any letters from any Rating Agency referred to above shall be
required if such amendment is made pursuant to (b) above.
This Agreement may also be amended from time to time by the Depositor, the
Administrator and the Owner Trustee, with the prior written consent of the
Rating Agencies and with the prior written consent of the Holders (as defined in
the Indenture) of Notes evidencing more than 66 2/3% of the Outstanding Balance
of the Notes, and the consent of the Holder, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holder; provided,
however, that no such amendment shall, as evidenced by an Opinion of Counsel,
adversely affect the tax status of the Trust; and provided, further, that no
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on the Collateral or
payments that shall be required to be made for the benefit of the Noteholders or
the Holder or (b) reduce the aforesaid percentage of the Outstanding Balance of
the Notes required to consent to or to waive the requirement for the Holder to
consent to any such amendment, in either case of clause (a) or (b) without the
consent of the holders of all the outstanding Notes and the Holder.
Notwithstanding the foregoing, no provision of Sections 2.03 or 5.06 hereof
may be amended in any manner unless (i) 100% of the Outstanding Balance of the
Noteholders have consented in writing thereto, (ii) the Rating Agencies have
consent in writing thereto or (iii) the Notes have been paid in full and the
Indenture has been discharged.
Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to the Holder, the Indenture Trustee and the Rating Agencies.
32
It shall not be necessary for the consent of the Holder or the Noteholders
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 the Holder provided for in this Agreement or in any other Operative
Document) and of evidencing the authorization of the execution thereof by the
Holder shall be subject to such reasonable requirements as the Owner Trustee may
prescribe.
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.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee and the Administrator shall be entitled
to receive and rely upon an Opinion of Counsel, at the expense of the Trust,
stating that the execution of such amendment is authorized or permitted by this
Agreement. Neither the Owner Trustee nor the Administrator shall be obligated to
enter into any such amendment which affects the Owner Trustee's or
Administrator's own rights, duties or immunities under this Agreement or
otherwise.
Section 10.02. No Legal Title to Trust Estate in Holder. The Holder shall
not have legal title to any part of the Trust Estate and shall only be entitled
to receive distributions with respect to its undivided beneficial interest
therein pursuant to Section 4.02 once all amounts then owing with respect to the
Notes have been paid in accordance with the Indenture. No transfer, by operation
of law of any right, title and interest of the Holder in and to its undivided
beneficial interest in the Trust Estate or hereunder shall operate to terminate
this Agreement or the trusts hereunder or entitle any successor transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Estate.
Section 10.03. Pledge of Collateral by Owner Trustee is Binding. The pledge
of the Collateral to the Indenture Trustee by the Trust made under the Indenture
and pursuant to the terms of this Agreement shall bind the Holder and shall be
effective to transfer or convey the rights of the Trust and the Holder in and to
such Collateral to the extent set forth in the Indenture. No purchaser or other
grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such pledge or as to the application of any proceeds
with respect thereto by the Owner Trustee.
Section 10.04. Limitations on Rights of Others. Nothing in this Agreement,
whether express or implied (except for Section 7.04), shall be construed to give
to any Person other than the Owner Trustee and the Holder any legal or equitable
right in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
Section 10.05. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices shall be in writing and delivered by hand, by
courier or mailed by certified mail, postage prepaid, (a) if to the Owner
Trustee or the Trust, addressed to it at the Corporate Trust Office of the Owner
Trustee or to such other address as the Owner Trustee may have set forth in a
written notice to the Holder and the Depositor addressed to each of them at the
address set forth for the Certificateholder in the Certificate Register and for
the Depositor below; (b) if to the Administrator, addressed to it at the
Corporate Trust Office of the Administrator; and (c) if to the Depositor,
addressed to it at Aegis Asset Backed Securities Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: AEGIS 2006-1. Whenever any notice in
writing is required to be given by the Owner Trustee or the Administrator, such
notice shall be deemed given and such requirement satisfied if such notice is
mailed by certified mail, postage prepaid, addressed as provided above.
Section 10.06. Severability. Any provision of this Agreement which 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 10.07. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 10.08. Successors and Assigns. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, the Owner Trustee and its successors and assigns and the
Depositor and the Holder and its respective successors, all as herein provided.
Any request, notice, direction, consent, waiver or other instrument or action by
the Holder shall bind the successors of such Holder.
Section 10.09. 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 10.10. Governing Law. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS THEREOF, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 10.11. No Petition.
(a) The Owner Trustee and the Administrator, by entering into this
Agreement, the Holder, by accepting the Ownership Certificates, and the
Indenture Trustee and each Noteholder, by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against the Depositor or the Trust, or join in any institution against the
Depositor or the Trust of, any bankruptcy under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Ownership Certificates, the Notes, this Agreement or any of the other
Operative Documents.
(b) The Depositor shall not be liable for the default or misconduct of the
Administrator, the Owner Trustee, the Indenture Trustee or the Certificate
Paying Agent under any of the Operative Documents or otherwise and the Depositor
shall have no obligation or liability to perform the obligations of the Trust
under this Agreement or the Operative Documents that are
34
required to be performed by the Administrator under the Administration Agreement
or the Indenture Trustee under the Indenture.
Section 10.12. No Recourse. The Holder by accepting the Ownership
Certificates acknowledges that such Certificate represents a beneficial interest
in the Trust only and does not represent an interest in or an obligation of the
Depositor, the Administrator, the Owner Trustee, any co-trustee, the Bank or any
Affiliate thereof (other than the Trust) and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated in
this Agreement, the Ownership Certificates or the other Operative Documents.
Section 10.13. Reporting Requirements of the Commission and
Indemnification.
Notwithstanding any other provision of this Agreement, the Owner Trustee
shall (i) agree to such modifications and enter into such amendments to this
Agreement as may be necessary, in the judgment of the Depositor and its counsel,
to comply with any rules promulgated by the Commission and any interpretations
thereof by the staff of the Commission (collectively, "SEC Rules").
ARTICLE XI
OFFICERS
Section 11.01. Appointment of Officers. The Trust may have one or more
Officers who are hereby empowered to take and are responsible for performing all
ministerial duties on behalf of the Trust pursuant to this Agreement and the
other Operative Documents, including, without limitation, the execution of the
Officers' Certificate (as defined in the Indenture), the Trust Order (as defined
in the Indenture), the Trust Request (as defined in the Indenture), the annual
compliance report required under Section 3.09 of the Indenture, and any annual
reports, documents and other reports which the Trust is required to file with
the Securities and Exchange Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended. Each of the Chairman of the Board,
the Chief Executive Officer, the President, each Senior Vice President and each
Vice President of the Depositor is hereby appointed as an Officer of the Trust.
The Depositor shall promptly deliver to the Owner Trustee and the Indenture
Trustee a list of its officers who shall become the Officers of the Trust
pursuant to this Section 11.01.
Section 11.02. Officers to Provide Information to the Owner Trustee. It
shall be the duty of each Officer to keep the Owner Trustee reasonably and
promptly informed as to material events relating to the Trust, including,
without limitation, all claims pending or threatened against the Trust, the
purchase and sale of any material portion of the Trust Estate and the execution
by such Officer on behalf of the Trust of any material agreements or
instruments.
35
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
AEGIS ASSET BACKED SECURITIES
CORPORATION, as Depositor
By: /s/ ▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: President
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Financial Services Officer
▇▇▇▇▇ FARGO BANK, N.A.
not in its individual capacity but solely
as Administrator
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Acknowledged and Agreed, solely
for purposes of Section 7.02:
AEGIS MORTGAGE CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: President Portfolio Management
EXHIBIT A-X
[FORM OF CLASS X OWNERSHIP CERTIFICATE]
[Face]
THIS CLASS X OWNERSHIP CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF
ANY STATE. THIS CLASS X OWNERSHIP CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY
OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER
HEREOF ONLY TO A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER
THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT
PURSUANT TO RULE 144A. NO PERSON IS OBLIGATED TO REGISTER THIS CLASS X OWNERSHIP
CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES LAWS.
THIS CLASS X OWNERSHIP CERTIFICATE MAY NOT BE ACQUIRED BY A TRANSFEREE FOR, OR
ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE") OR ANY SUBSTANTIALLY SIMILAR LAW, OR ANY ENTITY DEEMED TO
HOLD THE PLAN ASSETS OF THE FOREGOING. EACH INVESTOR IN THIS CERTIFICATE WILL BE
DEEMED TO MAKE THE FOREGOING REPRESENTATIONS AND WILL FURTHER BE DEEMED TO
REPRESENT, WARRANT AND COVENANT THAT IT WILL NOT SELL, PLEDGE OR OTHERWISE
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
THIS CLASS X OWNERSHIP CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR
OBLIGATION OF THE DEPOSITOR, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE, THE
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY
PROVIDED IN THE TRUST AGREEMENT OR THE OTHER OPERATIVE DOCUMENTS.
THIS CLASS X OWNERSHIP CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT AS
DESCRIBED IN THE TRANSFER AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CLASS X OWNERSHIP CERTIFICATE SHALL BE MADE UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED AN AFFIDAVIT FROM THE PROPOSED
TRANSFEREE IN WHICH THE PROPOSED TRANSFEREE DECLARES THAT IT IS A REAL ESTATE
INVESTMENT TRUST (A "REIT") WITHIN THE MEANING OF SECTIONS 856 AND 857 OF THE
CODE, A QUALIFIED REIT SUBSIDIARY WITHIN THE MEANING OF SECTION 856(i) OF THE
CODE OR AN ENTITY THAT IS BOTH (A) SOLELY OWNED BY A REIT OR QUALIFIED REIT
A-X-1
SUBSIDIARY AND (B) DISREGARDED AS AN ENTITY SEPARATE FROM ITS OWNER WITHIN THE
MEANING OF SECTION 301.7701-2(C)(2) OF THE TREASURY REGULATIONS (A "DISREGARDED
ENTITY"). MOREOVER, ANY ATTEMPTED TRANSFER OF THIS CLASS X OWNERSHIP CERTIFICATE
TO A PERSON OTHER THAN A REIT, A QUALIFIED REIT SUBSIDIARY OR A DISREGARDED
ENTITY SHALL BE VOID AB INITIO AND THE PURPORTED TRANSFEREE SHALL ACQUIRE NO
RIGHTS IN THIS CLASS X OWNERSHIP CERTIFICATE. FURTHERMORE, THIS CLASS X
OWNERSHIP CERTIFICATE MAY ONLY BE TRANSFERRED IN A TRANSACTION IN WHICH THE
TRANSFEREE ACQUIRES BOTH A 100% PERCENTAGE INTEREST IN THE CLASS X OWNERSHIP
CERTIFICATE AND A 100% PERCENTAGE INTEREST IN THE CLASS R OWNERSHIP CERTIFICATE
SUCH THAT AT ALL TIMES ONE PERSON WILL BE THE SOLE OWNER OF A 100% PERCENTAGE
INTEREST IN THE CLASS X OWNERSHIP CERTIFICATE AND THE CLASS R OWNERSHIP
CERTIFICATE.
A-X-2
AEGIS ASSET BACKED SECURITIES TRUST 2006-1
Certificate No. _________ Percentage Interest: 100%
First Payment Date: [________]
Evidencing a fractional undivided equity interest in the Trust Estate, the
property of which consists primarily of the Collateral in Aegis Asset Backed
Securities Trust 2006-1 (the "Trust" or the "Issuer"), a Delaware statutory
trust formed by Aegis Asset Backed Securities Corporation, a Delaware
corporation, as depositor (the "Depositor"), pursuant to the Agreement referred
to below.
This certifies that [insert name of Holder] is the registered owner of the
Percentage Interest referred to above.
The Trust was created pursuant to a trust agreement dated as of October 1,
2006 (as amended and supplemented from time to time, the "Agreement" or "Trust
Agreement"), among the Depositor, Wilmington Trust Company, as owner trustee
(the "Owner Trustee," which term includes any successor entity under the
Agreement), and ▇▇▇▇▇ Fargo Bank, N.A., as administrator (in such capacity, the
"Administrator"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. This Class X Ownership Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class X Ownership Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound, and the transfer
and servicing agreement dated as of October 1, 2006 (as amended and supplemented
from time to time, the "Transfer and Servicing Agreement"), among the Issuer,
the Depositor, Aegis REIT Corporation, as seller, ▇▇▇▇▇ Fargo Bank, N.A., as
master servicer and administrator, Ocwen Loan Servicing, LLC, as servicer and
Deutsche Bank National Trust Company, as indenture trustee (the "Indenture
Trustee") and as custodian. Distributions on this Class X Ownership Certificate
shall be made by the Administrator, in its capacity of Certificate Paying Agent
under the Agreement.
This Class X Ownership Certificate is issued under the Agreement to which
reference is hereby made for a statement of the respective rights thereunder of
the Depositor, the Owner Trustee and the Holder of the Class X Ownership
Certificate and the terms upon which the Class X Ownership Certificate is
executed and delivered. The Trust Estate consists of the Collateral in the Aegis
Asset Backed Securities Trust 2006-1. To the extent not otherwise defined
herein, capitalized terms used herein have the meanings assigned to such terms
in the Agreement or the Transfer and Servicing Agreement. The rights of the
Holder are subordinated to the rights of the Noteholders, as set forth in the
indenture dated as of October 1, 2006 (as amended and supplemented from time to
time, the "Indenture"), among the Issuer, the Indenture Trustee and the
Administrator.
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 in November 2006, to the Holder at the close of business on the last
Business Day of the month preceding the month of such Payment Date (the "Record
Date"), the amount to be distributed to the Holder on
A-X-3
such Payment Date, all as provided in the Transfer and Servicing Agreement and
the Trust Agreement.
The Holder, by its acceptance of this Class X Ownership Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Distribution
Account that have been released from the lien of the Indenture for payment
hereunder and that neither the Owner Trustee, the Administrator or the
Certificate Paying Agent in their individual capacities nor the Depositor is
personally liable to the Holder for any amount payable under this Class X
Ownership Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
The Holder acknowledges and agrees that its rights to receive distributions
in respect of this Class X Ownership Certificate are subordinated to the rights
of the Noteholders as described in the Indenture and the rights of the Owner
Trustee as described in the Trust Agreement.
The Depositor and the Holder, by acceptance of a Class X Ownership
Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Class X Ownership Certificate for federal, state and local
income tax purposes as an equity interest in the Trust.
The Holder, by its acceptance of an Class X Ownership Certificate,
covenants and agrees that it will not at any time institute against the
Depositor or the Trust, 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
Class X Ownership Certificate, the Notes, the Agreement or any other of the
Operative Documents.
Distributions on this Class X Ownership Certificate will be made as
provided in the Agreement by the Certificate Paying Agent by wire transfer or
check mailed to the Holder without the presentation or surrender of this Class X
Ownership Certificate or the making of any notation hereon. Except as otherwise
provided in the Agreement and notwithstanding the above, the final distribution
on this Class X Ownership 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 Class X Ownership Certificate at the office
or agency maintained by the Certificate Registrar for that purpose.
Reference is hereby made to the further provisions of this Class X
Ownership 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 Class X Ownership Certificate shall not entitle the Holder
hereof to any benefit under the Agreement or be valid for any purpose.
THIS CLASS X OWNERSHIP CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS, AND THE OBLIGATIONS,
A-X-4
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
A-X-5
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Class X Ownership Certificate to be
duly executed.
AEGIS ASSET BACKED SECURITIES TRUST
2006-1
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as
Owner Trustee
By:
---------------------------------
Authorized Signatory
Dated: _________________________
A-X-6
CERTIFICATE OF AUTHENTICATION
This is the Class X Ownership Certificate referred to in the
within-mentioned Trust Agreement.
▇▇▇▇▇ FARGO BANK, N.A., not in its
individual capacity but solely as
Administrator
By:
---------------------------------
Authorized Signatory
Dated: _________________
A-X-7
[REVERSE OF CLASS X OWNERSHIP CERTIFICATE]
AEGIS ASSET BACKED SECURITIES TRUST CLASS X OWNERSHIP CERTIFICATE
The Class X Ownership Certificate does not represent an obligation of, or
an interest in, the Depositor, the Seller, the Indenture Trustee, the Owner
Trustee, the Administrator, Aegis Mortgage Corporation or any Affiliates of any
of them and no recourse may be had against any such parties or their assets,
except as expressly set forth or contemplated herein or in the Agreement or the
other Operative Documents. In addition, this Class X Ownership 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
Collateral, all as more specifically set forth herein. A copy of the 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 Agreement permits the amendment thereof as specified below, provided
that any amendment be accompanied by an Opinion of Counsel to the effect that
such amendment complies with the provisions of the Agreement and 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 Noteholder or the Indenture Trustee. If the purpose of the
amendment is to add or eliminate or change any provision of the Agreement, other
than as specified in the preceding sentence, the amendment shall require the
consent of the Holder and the consent of Noteholders evidencing more than 66
2/3% of the Outstanding Balance of the Notes; provided, however, that no such
amendment shall, as evidenced by an Opinion of Counsel, adversely affect the tax
status of the Trust; and provided, further, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on the Collateral or distributions that shall
be required to be made for the benefit of the Noteholders or the Holder or (b)
reduce the aforesaid percentage of the Outstanding Balance of the Notes required
to consent to or to waive the requirement for the Holder to consent to any such
amendment, in either case of clause (a) or (b) without the consent of the
holders of all the outstanding Securities.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Class X Ownership Certificate is registerable in the
Certificate Register upon surrender of this Class X Ownership Certificate for
registration of transfer at the offices or agencies of the Certificate
Registrar, 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 a new Class X Ownership
Certificate will be issued to the designated transferee. The initial Certificate
Registrar appointed under the Agreement is the Administrator.
Except as provided in the Agreement, the Class X Ownership Certificate is
issuable only in a minimum Percentage Interest of 100%. No service charge will
be made for any such registration of transfer or exchange, but the Owner Trustee
or the Certificate Registrar may
A-X-8
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith or any expense incurred thereby.
The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar,
the Administrator and any agent of the Owner Trustee, the Certificate Paying
Agent, the Certificate Registrar and the Administrator may treat the Holder as
the owner hereof for all purposes, and none of the Owner Trustee, the
Certificate Paying Agent, the Certificate Registrar, the Administrator or any
such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the Trust
created thereby shall terminate upon the satisfaction and discharge of the
Indenture pursuant to Section 4.01 thereof and the termination of the Transfer
and Servicing Agreement.
A-X-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s) and assign(s) and transfer(s)
unto
________________________________________________________________________________
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee
and social security number or employer identification number)
________________________________________________________________________________
the within Class X Ownership Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
________________________________________________________________________________
to transfer said Class X Ownership Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
I [we] further direct the Certificate Registrar to issue a new Class X
Ownership Certificate to the above-named assignee and deliver such Class X
Ownership Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------ ----------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Authorized Officer
----------------------------------------
Signature Guaranteed
------------------------------------- ----------------------------------------
Name of Institution NOTICE: The signature(s) of this
assignment must correspond with the
name(s) on the face of this Certificate
without alteration or any change
whatsoever. The signature must be
guaranteed by a participant in the
Securities Transfer Agents Medallion
Program, the New York Stock Exchange
Medallion Signature Program or the Stock
Exchanges Medallion Program. Notarized
or witnessed signatures are not
acceptable as guaranteed signatures.
A-X-10
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent. Distributions shall be made by wire transfer in
immediately available funds to
________________________________________________________________________________
for the account of _____________________________________________________________
account number __________________ or, if mailed by check, to ___________________
_______________________________________________________________________________.
Applicable reports and statements should be mailed to __________________________
_______________________________________________________________________________.
This information is provided by _____________________________________________,
the assignee named above, or ____________________________________ as its agent.
----------------------------------------
Signature of assignee or agent
(for authorization of wire transfer
only)
A-X-11
EXHIBIT A-R
[FORM OF CLASS R OWNERSHIP CERTIFICATE]
[Face]
THIS CLASS R OWNERSHIP CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF
ANY STATE. THIS CLASS R OWNERSHIP CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY
OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER
HEREOF ONLY TO A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER
THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT
PURSUANT TO RULE 144A. NO PERSON IS OBLIGATED TO REGISTER THIS CLASS R OWNERSHIP
CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES LAWS.
THIS CLASS R OWNERSHIP CERTIFICATE MAY NOT BE ACQUIRED BY A TRANSFEREE FOR, OR
ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE") OR ANY SUBSTANTIALLY SIMILAR LAW, OR ANY ENTITY DEEMED TO
HOLD THE PLAN ASSETS OF THE FOREGOING. EACH INVESTOR IN THIS CERTIFICATE WILL BE
DEEMED TO MAKE THE FOREGOING REPRESENTATIONS AND WILL FURTHER BE DEEMED TO
REPRESENT, WARRANT AND COVENANT THAT IT WILL NOT SELL, PLEDGE OR OTHERWISE
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
THIS CLASS R OWNERSHIP CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR
OBLIGATION OF THE DEPOSITOR, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE, THE
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY
PROVIDED IN THE TRUST AGREEMENT OR THE OTHER OPERATIVE DOCUMENTS.
THIS CLASS R OWNERSHIP CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT AS
DESCRIBED IN THE TRANSFER AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CLASS R OWNERSHIP CERTIFICATE SHALL BE MADE UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED AN AFFIDAVIT FROM THE PROPOSED
TRANSFEREE IN WHICH THE PROPOSED TRANSFEREE DECLARES THAT IT IS A REAL ESTATE
INVESTMENT TRUST (A "REIT") WITHIN THE MEANING OF SECTIONS 856 AND 857 OF THE
CODE, A QUALIFIED REIT SUBSIDIARY WITHIN THE MEANING OF SECTION 856(i) OF THE
CODE OR AN ENTITY THAT IS BOTH (A) SOLELY OWNED BY A REIT OR QUALIFIED REIT
A-R-1
SUBSIDIARY AND (B) DISREGARDED AS AN ENTITY SEPARATE FROM ITS OWNER WITHIN THE
MEANING OF SECTION 301.7701-2(C)(2) OF THE TREASURY REGULATIONS (A "DISREGARDED
ENTITY"). MOREOVER, ANY ATTEMPTED TRANSFER OF THIS CLASS R OWNERSHIP CERTIFICATE
TO A PERSON OTHER THAN A REIT, A QUALIFIED REIT SUBSIDIARY OR A DISREGARDED
ENTITY SHALL BE VOID AB INITIO AND THE PURPORTED TRANSFEREE SHALL ACQUIRE NO
RIGHTS IN THIS CLASS R OWNERSHIP CERTIFICATE. FURTHERMORE, THIS CLASS R
OWNERSHIP CERTIFICATE MAY ONLY BE TRANSFERRED IN A TRANSACTION IN WHICH THE
TRANSFEREE ACQUIRES BOTH A 100% PERCENTAGE INTEREST IN THE CLASS R OWNERSHIP
CERTIFICATE AND A 100% PERCENTAGE INTEREST IN THE CLASS X OWNERSHIP CERTIFICATE
SUCH THAT AT ALL TIMES ONE PERSON WILL BE THE SOLE OWNER OF A 100% PERCENTAGE
INTEREST IN THE CLASS R OWNERSHIP CERTIFICATE AND THE CLASS X OWNERSHIP
CERTIFICATE.
A-R-2
AEGIS ASSET BACKED SECURITIES TRUST 2006-1
Certificate No. _________ Percentage Interest: 100%
Principal Balance: $100.00
First Payment Date: [________]
Evidencing a fractional undivided equity interest in the Trust Estate, the
property of which consists primarily of the Collateral in Aegis Asset Backed
Securities Trust 2006-1 (the "Trust" or the "Issuer"), a Delaware statutory
trust formed by Aegis Asset Backed Securities Corporation, a Delaware
corporation, as depositor (the "Depositor"), pursuant to the Agreement referred
to below.
This certifies that [insert name of Holder] is the registered owner of the
Percentage Interest referred to above.
The Trust was created pursuant to a trust agreement dated as of October 1,
2006 (as amended and supplemented from time to time, the "Agreement" or "Trust
Agreement"), among the Depositor, Wilmington Trust Company, as owner trustee
(the "Owner Trustee," which term includes any successor entity under the
Agreement), and ▇▇▇▇▇ Fargo Bank, N.A., as administrator (in such capacity, the
"Administrator"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. This Class R Ownership Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class R Ownership Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound, and the transfer
and servicing agreement dated as of October 1, 2006 (as amended and supplemented
from time to time, the "Transfer and Servicing Agreement"), among the Issuer,
the Depositor, Aegis REIT Corporation, as seller, ▇▇▇▇▇ Fargo Bank, N.A., as
master servicer and administrator, Ocwen Loan Servicing, LLC, as servicer and
Deutsche Bank National Trust Company, as indenture trustee (the "Indenture
Trustee") and as custodian. Distributions on this Class R Ownership Certificate
shall be made by the Administrator, in its capacity of Certificate Paying Agent
under the Agreement.
This Class R Ownership Certificate is issued under the Agreement to which
reference is hereby made for a statement of the respective rights thereunder of
the Depositor, the Owner Trustee and the Holder of the Class R Ownership
Certificate and the terms upon which the Class R Ownership Certificate is
executed and delivered. The Trust Estate consists of the Collateral in the Aegis
Asset Backed Securities Trust 2006-1. To the extent not otherwise defined
herein, capitalized terms used herein have the meanings assigned to such terms
in the Agreement or the Transfer and Servicing Agreement. The rights of the
Holder are subordinated to the rights of the Noteholders, as set forth in the
indenture dated as of October 1, 2006 (as amended and supplemented from time to
time, the "Indenture"), among the Issuer, the Indenture Trustee and the
Administrator.
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 in November 2006, to the Holder at the close of business on the last
Business Day of the month preceding the
A-R-3
month of such Payment Date (the "Record Date"), the amount to be distributed to
the Holder on such Payment Date, all as provided in the Transfer and Servicing
Agreement and the Trust Agreement.
The Holder, by its acceptance of this Class R Ownership Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Distribution
Account that have been released from the lien of the Indenture for payment
hereunder and that neither the Owner Trustee, the Administrator or the
Certificate Paying Agent in their individual capacities nor the Depositor is
personally liable to the Holder for any amount payable under this Class R
Ownership Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
The Holder acknowledges and agrees that its rights to receive distributions
in respect of this Class R Ownership Certificate are subordinated to the rights
of the Noteholders as described in the Indenture and the rights of the Owner
Trustee as described in the Trust Agreement.
The Depositor and the Holder, by acceptance of a Class R Ownership
Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Class R Ownership Certificate for federal, state and local
income tax purposes as an equity interest in the Trust.
The Holder, by its acceptance of an Class R Ownership Certificate,
covenants and agrees that it will not at any time institute against the
Depositor or the Trust, 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
Class R Ownership Certificate, the Notes, the Agreement or any other of the
Operative Documents.
Distributions on this Class R Ownership Certificate will be made as
provided in the Agreement by the Certificate Paying Agent by wire transfer or
check mailed to the Holder without the presentation or surrender of this Class R
Ownership Certificate or the making of any notation hereon. Except as otherwise
provided in the Agreement and notwithstanding the above, the final distribution
on this Class R Ownership 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 Class R Ownership Certificate at the office
or agency maintained by the Certificate Registrar for that purpose.
Reference is hereby made to the further provisions of this Class R
Ownership 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 Class R Ownership Certificate shall not entitle the Holder
hereof to any benefit under the Agreement or be valid for any purpose.
THIS CLASS R OWNERSHIP CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS, AND THE OBLIGATIONS,
A-R-4
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
A-R-5
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Class R Ownership Certificate to be
duly executed.
AEGIS ASSET BACKED SECURITIES TRUST 2006-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By:
--------------------------------------
Authorized Signatory
Dated: _________________________
A-R-6
CERTIFICATE OF AUTHENTICATION
This is the Class R Ownership Certificate referred to in the
within-mentioned Trust Agreement.
▇▇▇▇▇ FARGO BANK, N.A., not in its
individual capacity but solely as
Administrator
By:
--------------------------------------
Authorized Signatory
Dated: _________________________
A-R-7
[REVERSE OF CLASS R OWNERSHIP CERTIFICATE]
AEGIS ASSET BACKED SECURITIES TRUST CLASS R OWNERSHIP CERTIFICATE
The Class R Ownership Certificate does not represent an obligation of, or
an interest in, the Depositor, the Seller, the Indenture Trustee, the Owner
Trustee, the Administrator, Aegis Mortgage Corporation or any Affiliates of any
of them and no recourse may be had against any such parties or their assets,
except as expressly set forth or contemplated herein or in the Agreement or the
other Operative Documents. In addition, this Class R Ownership 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
Collateral, all as more specifically set forth herein. A copy of the 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 Agreement permits the amendment thereof as specified below, provided
that any amendment be accompanied by an Opinion of Counsel to the effect that
such amendment complies with the provisions of the Agreement and 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 Noteholder or the Indenture Trustee. If the purpose of the
amendment is to add or eliminate or change any provision of the Agreement, other
than as specified in the preceding sentence, the amendment shall require the
consent of the Holder and the consent of Noteholders evidencing more than 662/3%
of the Outstanding Balance of the Notes; provided, however, that no such
amendment shall, as evidenced by an Opinion of Counsel, adversely affect the tax
status of the Trust; and provided, further, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on the Collateral or distributions that shall
be required to be made for the benefit of the Noteholders or the Holder or (b)
reduce the aforesaid percentage of the Outstanding Balance of the Notes required
to consent to or to waive the requirement for the Holder to consent to any such
amendment, in either case of clause (a) or (b) without the consent of the
holders of all the outstanding Securities.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Class R Ownership Certificate is registerable in the
Certificate Register upon surrender of this Class R Ownership Certificate for
registration of transfer at the offices or agencies of the Certificate
Registrar, 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 a new Class R Ownership
Certificate will be issued to the designated transferee. The initial Certificate
Registrar appointed under the Agreement is the Administrator.
Except as provided in the Agreement, the Class R Ownership Certificate is
issuable only in a minimum Percentage Interest of 100%. No service charge will
be made for any such registration of transfer or exchange, but the Owner Trustee
or the Certificate Registrar may
A-R-8
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith or any expense incurred thereby.
The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar,
the Administrator and any agent of the Owner Trustee, the Certificate Paying
Agent, the Certificate Registrar and the Administrator may treat the Holder as
the owner hereof for all purposes, and none of the Owner Trustee, the
Certificate Paying Agent, the Certificate Registrar, the Administrator or any
such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the Trust
created thereby shall terminate upon the satisfaction and discharge of the
Indenture pursuant to Section 4.01 thereof and the termination of the Transfer
and Servicing Agreement.
A-R-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s) and assign(s) and transfer(s)
unto
________________________________________________________________________________
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee
and social security number or employer identification number)
________________________________________________________________________________
the within Class R Ownership Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
________________________________________________________________________________
to transfer said Class R Ownership Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
I [we] further direct the Certificate Registrar to issue a new Class R
Ownership Certificate to the above-named assignee and deliver such Class R
Ownership Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------ ----------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Authorized Officer ----------------------------------------
Signature Guaranteed
------------------------------------- ----------------------------------------
Name of Institution NOTICE: The signature(s) of this
assignment must correspond with the
name(s) on the face of this Certificate
without alteration or any change
whatsoever. The signature must be
guaranteed by a participant in the
Securities Transfer Agents Medallion
Program, the New York Stock Exchange
Medallion Signature Program or the Stock
Exchanges Medallion Program. Notarized
or witnessed signatures are not
acceptable as guaranteed signatures.
A-R-10
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent. Distributions shall be made by wire transfer in
immediately available funds to
________________________________________________________________________________
for the account of _____________________________________________________________
account number __________________ or, if mailed by check, to ___________________
_______________________________________________________________________________.
Applicable reports and statements should be mailed to __________________________
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or ____________________________________ as its agent.
----------------------------------------
Signature of assignee or agent
(for authorization of wire transfer
only)
A-R-11
EXHIBIT B
[RESERVED]
B-1
EXHIBIT C
FORM OF CERTIFICATE OF TRUST OF
AEGIS ASSET BACKED SECURITIES TRUST 2006-1
THIS Certificate of Trust of Aegis Asset Backed Securities Trust 2006-1
(the "Trust"), is being duly executed and filed by the undersigned, as trustee,
to form a statutory trust under the Delaware Statutory Trust Act (12 DEL. CODE,
Sections 3801 et seq.) (the "Act")
1. NAME. The name of the statutory trust formed hereby is "AEGIS ASSET
BACKED SECURITIES TRUST 2006-1."
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware are Wilmington Trust Company, ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective on [ ],
2006.
IN WITNESS WHEREOF, the undersigned, being the owner trustee of the Trust,
has executed this Certificate of Trust in accordance with Section 3811(a) of the
Act.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By:
------------------------------------
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF RULE 144A INVESTMENT LETTER
________________
Date
▇▇▇▇▇ FARGO BANK, N.A.,
as Certificate Registrar
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: Aegis Asset Backed Securities Trust 2006-1
Ownership Certificates
Ladies and Gentlemen:
In connection with our acquisition of the Aegis Asset Backed Securities
Trust 2006-1 Ownership Certificates (the "Certificates"), we certify that (a) we
understand that the Certificates has not been registered under the Securities
Act of 1933, as amended (the "Act"), or any state securities laws and is being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have such knowledge and
experience in financial and business matters that we are capable of evaluating
the merits and risks of investment in the Certificates, (c) we have had the
opportunity to ask questions of and receive answers from the Aegis Asset Backed
Securities Corporation (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 have not,
nor has anyone acting on our behalf, offered, transferred, pledged, sold or
otherwise disposed of the Certificates or any interest in the Certificates, or
solicited any offer to buy, transfer, pledge or otherwise dispose of the
Certificates or any interest in the Certificates from 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
Certificates under the Act or that would render the disposition of the
Certificates a violation of Section 5 of the Act or any state securities laws or
require registration pursuant thereto, and we will not act, or authorize any
person to act, in such manner with respect to the Certificates and (e) we are a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Act ("Rule 144A"). We are aware that the sale to us is being made in reliance on
Rule 144A.
We are acquiring the Certificates for our own account or for resale
pursuant to Rule 144A and understand that such Certificates may be resold,
pledged or transferred only (1) 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
D-1
transfer is being made in reliance on Rule 144A or (2) pursuant to another
exemption from registration under the Act.
In addition, we hereby certify that we are not an employee benefit plan or
other retirement arrangement subject to Section 406 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or to Section 4975 of the
Internal Revenue Code of 1986, as amended (or to any other substantially similar
law) or any entity deemed to hold the plan assets of the foregoing.
We hereby acknowledge that under the terms of the Trust Agreement among
Aegis Asset Backed Securities Corporation, as Depositor, Wilmington Trust
Company, as Owner Trustee, and ▇▇▇▇▇ Fargo Bank, N.A., as Administrator, dated
as of October 1, 2006, no transfer of the Certificates shall be permitted to be
made to any person unless the Certificate Registrar has received a certificate
from such transferee in the form hereof.
We hereby indemnify the Depositor, Certificate Registrar and the Owner
Trustee against any liability that may result to either of them if our transfer
or other disposition of the Certificates (or any interest therein) is not exempt
from the registration requirements of the Act and any applicable state
securities laws or is not made in accordance with such federal and state laws,
the provisions of this certificate or the applicable provisions of the
Indenture.
Very truly yours,
[Name of Transferee]
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
D-2
EXHIBIT E
OWNER TRUSTEE FEE LETTER AGREEMENT
[Retained on file at:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇]
E-1
EXHIBIT F
FORM OF REPRESENTATION AND WARRANTY REGARDING TRANSFEREE'S STATUS AS A REIT,
QUALIFIED REIT SUBSIDIARY OR DISREGARDED ENTITY
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Aegis 2006-1
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Aegis 2006-1
Re: Aegis Asset Backed Securities Trust 2006-1
Ownership Certificates
This representation and warranty is delivered pursuant to Section 3.03 of
the Trust Agreement dated as of October 1, 2006 (the "Agreement"), among Aegis
Asset Backed Securities Corporation, as depositor (the "Depositor"), Wilmington
Trust Company, as owner trustee (the "Owner Trustee"), and ▇▇▇▇▇ Fargo Bank,
N.A., as administrator (the "Administrator"), in connection with the transfer by
[Aegis Asset Backed Securities Trust 2006-1 (the "Trust") to the undersigned]
[the [transferor] to the undersigned] as beneficial owner (the "Beneficial
Owner") of a 100% Percentage Interest in each of the Class X Ownership
Certificate and the Class R Ownership Certificate. Capitalized terms used but
not defined in this document have the meanings ascribed to them in the
Agreement.
The Beneficial Owner hereby certifies that it has received a copy of the
Agreement and that it understands the restrictions on transferability of the
Ownership Certificates set forth in Section 3.03 of the Agreement and the
indemnity provisions set forth in Section 7.02 of the Agreement. In connection
with the transfer of the Ownership Certificates to the Beneficial Owner, the
Beneficial Owner represents and warrants that:
(1) The Beneficial Owner either (i) qualifies for taxation as a real
estate investment trust (a "REIT") within the meaning of Sections 856 and
857 of the Internal Revenue Code of 1986, as amended (the "Code"), (ii) is
a qualified REIT subsidiary within the meaning of Section 856(i) of the
Code (a "Qualified REIT Subsidiary") or (iii) is an entity (a "Disregarded
Entity") that is both (A) solely owned by an entity described in (i) or
(ii) and (B) is disregarded as an entity separate from its owner within the
meaning of Section 301.7701-2(c)(2) of the Treasury Regulations..
(2) The Beneficial Owner hereby agrees to be subject to the
indemnification provisions set out in Section 7.02 of the Agreement, and
hereby warrants that the Beneficial Owner shall indemnify the Trust for any
income tax imposed upon the Trust due to the Beneficial Owner's failure to
qualify as a REIT, a Qualified REIT Subsidiary
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or a Disregarded Entity at any time at which such Beneficial Owner owns the
Ownership Certificates.
(3) The Beneficial Owner hereby agrees to be subject to the provisions
governing events of default set out in the Indenture among Aegis Asset
Backed Securities Trust 2006-1 (the "Trust"), as issuer, Deutsche Bank
National Trust Company, as indenture trustee, and ▇▇▇▇▇ Fargo Bank, N.A.,
as administrator, dated as of October 1, 2006.
(4) The Beneficial Owner hereby agrees to notify the Trust within
sixty (60) days of the date on which the Beneficial Owner discovers that it
has failed to qualify as a REIT, a Qualified REIT Subsidiary or a
Disregarded Entity at any time at which the Beneficial Owner owns the
Ownership Certificates.
(5) The Beneficial Owner is not, and on _________ [date of transfer]
will not be, an employee benefit plan or other retirement arrangement
subject to Section 406 of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or Section 4975 of the Code or any substantially
similar applicable law (collectively, a "Plan") or a person acting on
behalf of or investing the assets of any such Plan to acquire the Ownership
Certificates.
(6) The Beneficial Owner hereby acknowledges that under the terms of
the Agreement, no transfer of the Ownership Certificates shall be permitted
to be made to any person unless the Certificate Registrar has received a
certificate from such transferee to the effect that such transferee (i) is
not a Plan and is not using the assets of any Plan to acquire the Ownership
Certificates and (ii) is a REIT, a Qualified REIT Subsidiary or a
Disregarded Entity.
(7) The Beneficial Owner will not transfer the Ownership Certificates
to any person or entity (i) as to which the Purchaser has reason to believe
does not satisfy the requirements set forth in this affidavit, and (ii)
without obtaining from the prospective Purchaser an affidavit substantially
in this form and providing to the Certificate Registrar a written statement
substantially in the form of Exhibit F to the Agreement.
The Holder of the Ownership Certificates will not take any action or inaction
that would cause the Trust to be subject to any United States federal income
taxation.
F-2
EXHIBIT G
SERVICING CRITERIA TO BE ADDRESSED IN REPORT ON ASSESSMENT OF COMPLIANCE
The Owner Trustee shall address, at a minimum, the criteria identified as
below as "Applicable Servicing Criteria," as identified by a ▇▇▇▇ in the column
titled "Applicable Servicing Criteria":
APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
----------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other X
triggers and events of default in accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies X
and procedures are instituted to monitor the third party's performance and
compliance with such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer
for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period in the
amount of coverage required by and otherwise in accordance with the terms of
the transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the transaction
agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor X
are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or
distributions, and any interest or other fees charged for such advances, are
made, reviewed and approved as specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or X
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth in the
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository X
institution as set forth in the transaction agreements. For purposes of this
criterion, "federally insured depository institution" with respect to a
foreign financial institution means a foreign financial institution that meets
the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. X
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed X
securities related bank accounts, including custodial accounts and related
bank clearing accounts. These reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the bank statement cutoff date, or
such other number of days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
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APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
----------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are X
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal balance and number of
mortgage loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with X
timeframes, distribution priority and other terms set forth in the transaction
agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the X
Servicer's investor records, or such other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled X
checks, or other form of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the
transaction agreements or related mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the
transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed
and approved in accordance with any conditions or requirements in the
transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with the
related mortgage loan documents are posted to the Servicer's obligor records
maintained no more than two business days after receipt, or such other number
of days specified in the transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance with the related mortgage
loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's
records with respect to an obligor's unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans
(e.g., loan modifications or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction agreements and related
pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications
and deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a
mortgage loan is delinquent in accordance with the transaction agreements.
Such records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with
variable rates are computed based on the related mortgage loan documents.
G-2
APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
----------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts):
(A) such funds are analyzed, in accordance with the obligor's mortgage loan
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number of days
specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are
made on or before the related penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior to these dates,
or such other number of days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf
of an obligor are paid from the servicer's funds and not charged to the
obligor, unless the late payment was due to the obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business days
to the obligor's records maintained by the servicer, or such other number of
days specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and
recorded in accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
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EXHIBIT H
TRANSACTION PARTIES
Indenture Trustee...........................Deutsche Bank National Trust Company
Owner Trustee...............................Wilmington Trust Company
Administrator...............................▇▇▇▇▇ Fargo Bank, N.A.
Master Servicer.............................▇▇▇▇▇ Fargo Bank, N.A.
Custodian(s)................................Deutsche Bank National Trust Company
Credit Risk Manager.........................N/A
PMI Insurer(s)..............................N/A
Interest Rate Derivatives Counterparty......Bear ▇▇▇▇▇▇▇ Financial Products Inc.
Interest Rate Cap Counterparty..............Bear ▇▇▇▇▇▇▇ Financial Products Inc.
Servicer(s).................................Ocwen Loan Servicing, LLC
Subservicer(s)..............................Aegis Mortgage Corporation
Originator(s)...............................Aegis Funding Corporation
Aegis Lending Corporation
Sponsor/Seller..............................Aegis Mortgage Corporation
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