AMERICAN HOME MORTGAGE SECURITIES LLC, AS DEPOSITOR WILMINGTON TRUST COMPANY, AS OWNER TRUSTEE AND WELLS FARGO BANK, N.A., AS SECURITIES ADMINISTRATOR AMENDED AND RESTATED TRUST AGREEMENT DATED AS OF DECEMBER 28, 2006 Trust Certificate, Series 2006-3
EXHIBIT
3.1
AMERICAN
HOME MORTGAGE SECURITIES LLC,
AS
DEPOSITOR
WILMINGTON
TRUST COMPANY,
AS
OWNER
TRUSTEE
AND
▇▇▇▇▇
FARGO BANK, N.A.,
AS
SECURITIES ADMINISTRATOR
AMENDED
AND RESTATED
DATED
AS
OF DECEMBER 28, 2006
Trust
Certificate,
Series
2006-3
Table
of Contents
|
ARTICLE
I
|
|
|
DEFINITIONS
|
|
|
Section
1.01
|
Definitions
|
|
Section
1.02
|
Other
Definitional Provisions.
|
|
ARTICLE
II
|
|
|
ORGANIZATION
|
|
|
Section
2.01
|
Name
|
|
Section
2.02
|
Office
|
|
Section
2.03
|
Purposes
and Powers
|
|
Section
2.04
|
Appointment
of Owner Trustee
|
|
Section
2.05
|
Initial
Capital Contribution of Owner Trust Estate
|
|
Section
2.06
|
Declaration
of Trust
|
|
Section
2.07
|
Liability
of the Holder of the Certificate
|
|
Section
2.08
|
Title
to Trust Property
|
|
Section
2.09
|
Situs
of Trust
|
|
Section
2.10
|
Representations
and Warranties of the Depositor
|
|
Section
2.11
|
Investment
Company
|
|
Section
2.12
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Transfer
of Trust Estate to Owner Trustee
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|
ARTICLE
III
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|
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CONVEYANCE
OF THE MORTGAGE LOANS; THE CERTIFICATE
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|
|
Section
3.01
|
Conveyance
of the Mortgage Loans
|
|
Section
3.02
|
Initial
Ownership
|
|
Section
3.03
|
The
Certificate
|
|
Section
3.04
|
Authentication
of Certificate
|
|
Section
3.05
|
Registration
of and Limitations on Transfer and Exchange of the
Certificate
|
|
Section
3.06
|
Mutilated,
Destroyed, Lost or Stolen Certificate
|
|
Section
3.07
|
Persons
Deemed a Certificateholder
|
|
Section
3.08
|
Access
to the Certificateholder’s Names and Addresses
|
|
Section
3.09
|
Maintenance
of Office or Agency
|
|
Section
3.10
|
Certificate
Paying Agent
|
|
ARTICLE
IV
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|
|
AUTHORITY
AND DUTIES OF OWNER TRUSTEE
|
|
|
Section
4.01
|
General
Authority
|
|
Section
4.02
|
General
Duties
|
|
Section
4.03
|
Action
upon Instruction
|
|
Section
4.04
|
No
Duties Except as Specified under Specified Documents or in
Instructions
|
|
Section
4.05
|
Restrictions
|
|
Section
4.06
|
Prior
Notice to Certificateholder with Respect to Certain
Matters
|
|
Section
4.07
|
Action
by Certificateholder with Respect to Certain Matters
|
|
Section
4.08
|
Action
by Certificateholder with Respect to Bankruptcy
|
|
Section
4.09
|
Restrictions
on Certificateholder’s Power
|
|
Section
4.10
|
Majority
Control
|
|
Section
4.11
|
Optional
Redemption
|
|
Section
4.12
|
Optional
Repurchase of the Mortgage Loans
|
|
ARTICLE
V
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|
|
APPLICATION
OF TRUST FUNDS
|
|
|
Section
5.01
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Distributions
|
|
Section
5.02
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Method
of Payment
|
|
Section
5.03
|
Tax
Returns
|
|
Section
5.04
|
Statements
to the Certificateholder
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|
ARTICLE
VI
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|
|
Concerning
the Owner Trustee
|
|
|
Section
6.01
|
Acceptance
of Trusts and Duties
|
|
Section
6.02
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Furnishing
of Documents
|
|
Section
6.03
|
Representations
and Warranties
|
|
Section
6.04
|
Reliance;
Advice of Counsel
|
|
Section
6.05
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Limitation
of Liability of Wilmington Trust Company
|
|
Section
6.06
|
Owner
Trustee Not Liable for the Certificate or Related
Documents
|
|
Section
6.07
|
Owner
Trustee May Own the Certificate and Notes
|
|
Section
6.08
|
Payments
from Owner Trust Estate
|
|
Section
6.09
|
Doing
Business in Other Jurisdictions
|
|
Section
6.10
|
Liability
of Certificate Registrar and Certificate Paying Agent
|
|
Section
6.11
|
Derivative
Contracts
|
|
ARTICLE
VII
|
|
|
COMPENSATION
OF OWNER TRUSTEE
|
|
|
Section
7.01
|
Owner
Trustee's Fees and Expenses
|
|
Section
7.02
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Indemnification
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|
ARTICLE
VIII
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|
|
TERMINATION
OF TRUST AGREEMENT
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|
|
Section
8.01
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Termination
of Trust Agreement
|
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ARTICLE
IX
|
|
|
Successor
Owner Trustees and Additional Owner Trustees
|
|
|
Section
9.01
|
Eligibility
Requirements for Owner Trustee
|
|
Section
9.02
|
Replacement
of Owner Trustee
|
|
Section
9.03
|
Successor
Owner Trustee
|
|
Section
9.04
|
Merger
or Consolidation of Owner Trustee
|
|
Section
9.05
|
Appointment
of Co-Trustee or Separate Trustee
|
|
ARTICLE
X
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|
|
Miscellaneous
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|
|
Section
10.01
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Amendments
|
|
Section
10.02
|
No
Legal Title to Owner Trust Estate
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|
Section
10.03
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Limitations
on Rights of Others
|
|
Section
10.04
|
Notices
|
|
Section
10.05
|
Severability
|
|
Section
10.06
|
Separate
Counterparts
|
|
Section
10.07
|
Successors
and Assigns
|
|
Section
10.08
|
No
Petition
|
|
Section
10.09
|
No
Recourse
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|
Section
10.10
|
Headings
|
|
Section
10.11
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GOVERNING
LAW
|
|
Section
10.12
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Integration
|
|
Section
10.13
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Benefits
of Trust Agreement
|
|
Section
10.14
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Separateness
Covenants
|
|
Section
10.15
|
Action
by Certificateholder or Owner Trustee With Respect to
Bankruptcy
|
|
Section
10.16
|
[Reserved].
|
|
Section
10.17
|
Restrictions
on Trust Activities
|
|
Section
10.18
|
Obligations
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ARTICLE
XI
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|
|
REMIC
CONVERSION
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|
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Section
11.01
|
Discharge
of Indenture and Transfer of Mortgage Loans
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|
Section
11.02
|
Conditions
Precedent to a REMIC Conversion
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EXHIBITS
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|
Exhibit
A - Form of Certificate
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|
Exhibit
B - Certificate of Trust
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Exhibit
C - Form of Rule 144A Investment Representation
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Exhibit
D - Form of Certificate of Non-Foreign Status
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Exhibit
E - Form of Investment Letter
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Exhibit
F - Form of Transferor Certificate
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Exhibit
G - Form of ERISA Letter
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Exhibit
H - Form of Transferee Certificate
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|
Exhibit
I - Form of Lender Transferor Certificate
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This
Amended and Restated Trust Agreement, dated as of December 28, 2006 (as amended
from time to time, this “Trust Agreement”), among American Home Mortgage
Securities LLC, a Delaware limited liability company, as depositor (the
“Depositor”), Wilmington Trust Company, a Delaware banking corporation, as owner
trustee (the “Owner Trustee”), and ▇▇▇▇▇ Fargo Bank, N.A., as securities
administrator (in such capacity, the “Securities Administrator”).
WITNESSETH
THAT:
In
consideration of the mutual agreements herein contained, the Depositor and
the
Owner Trustee agree as follows:
WHEREAS,
the Depositor and the Owner Trustee have previously entered into the Trust
Agreement dated as of September 22, 2006 (the “Trust Agreement”).
WHEREAS,
the parties hereto desire to amend the terms of and restate the Trust
Agreement.
In
consideration of the mutual agreements herein contained, the Depositor, the
Owner Trustee and ▇▇▇▇▇ Fargo Bank, N.A., in its capacity as Securities
Administrator, agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
For all
purposes of this Trust Agreement, except as otherwise expressly provided herein
or unless the context otherwise requires, capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in Appendix A
to
the Indenture, dated December 28, 2006, between American Home Mortgage
Investment Trust 2006-3, as Issuing Entity, ▇▇▇▇▇ Fargo Bank, N.A., as
Securities Administrator and Deutsche Bank National Trust Company, as Indenture
Trustee (the “Indenture Trustee”), which is incorporated by reference herein.
All other capitalized terms used herein shall have the meanings specified
herein.
Section
1.02 Other
Definitional Provisions.
(a) All
terms
defined in this Trust Agreement shall have the defined meanings when used in
any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As
used
in this Trust Agreement and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in this
Trust
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Trust Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given
to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Trust Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Trust Agreement or in any such certificate or other document shall
control.
(c) The
words
“hereof,” “herein,” “hereunder” and words of similar import when used in this
Trust Agreement shall refer to this Trust Agreement as a whole and not to any
particular provision of this Trust Agreement; Article, Section and Exhibit
references contained in this Trust Agreement are references to Articles,
Sections and Exhibits in or to this Trust Agreement unless otherwise specified;
and the term “including” shall mean “including without limitation”.
(d) The
definitions contained in this Trust Agreement are applicable to the singular
as
well as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
(e) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE
II
ORGANIZATION
Section
2.01 Name.
The
trust created hereby (the “Trust”) shall be known as “American Home Mortgage
Investment Trust 2006-3”, in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and ▇▇▇ and be sued.
Section
2.02 Office.
The
office of the Trust shall be in care of the Owner Trustee at the Corporate
Trust
Office or at such other address in Delaware as the Owner Trustee may designate
by written notice to the Certificateholder and the Depositor.
Section
2.03 Purposes
and Powers.
The
purpose of the Trust is to engage in the following activities:
(i) to
issue
the Notes pursuant to the Indenture and the Certificate pursuant to this Trust
Agreement and to sell the Notes and the Certificate;
(ii) to
pay
the organizational, start-up and transactional expenses of the
Trust;
(iii) to
assign, grant, transfer, pledge and convey the Mortgage Loans pursuant to the
Indenture and to hold, manage and distribute to the Certificateholder pursuant
to Section 5.01 herein, any portion of the Mortgage Loans released from the
Lien
of, and remitted to the Trust pursuant to, the Indenture;
(iv) to
enter
into and perform its obligations under the Basic Documents to which it is to
be
a party;
(v) if
directed by the holder of the Certificate sell the Trust Estate subsequent
to
the discharge of the Indenture, all for the benefit of the holder of the
Certificate;
(vi) to
issue
REMIC Notes upon a REMIC Conversion.
(vii) to
engage
in those activities, including entering into agreements, that are necessary,
suitable or convenient to accomplish the foregoing or are incidental thereto
or
connected therewith; and
(viii) subject
to compliance with the Basic Documents, to engage in such other activities
as
may be required in connection with conservation of the Owner Trust Estate and
the making of distributions to the 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 Trust Agreement or the Basic
Documents.
Section
2.04 Appointment
of Owner Trustee.
The
Depositor hereby appoints the Owner Trustee as trustee of the Trust effective
as
of the date hereof, to have all the rights, powers and duties set forth
herein.
Section
2.05 Initial
Capital Contribution of Owner Trust Estate.
The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Trust,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial corpus of the Trust and shall
be deposited in the Certificate Distribution Account. The Owner Trustee also
acknowledges on behalf of the Trust the receipt in trust of the Mortgage Loans,
the rights with respect to the Cap Contracts and the rights with respect to
the
representations and warranties made by the Sponsor under the Mortgage Loan
Purchase Agreement which shall constitute the Owner Trust Estate.
Section
2.06 Declaration
of Trust.
The
Owner Trustee hereby declares that it shall hold the Owner Trust Estate in
trust
upon and subject to the conditions set forth herein for the use and benefit
of
the Certificateholder, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute
a
“statutory trust” under the Statutory Trust Statute and that this Trust
Agreement constitute the governing instrument of such statutory trust. The
parties hereto intend that for federal income tax, state income tax, and local
franchise tax purposes, the Trust be disregarded as an entity separate from
the
Single Owner. Except as otherwise provided in this Trust Agreement, the rights
of the Certificateholder will be those of an equity owner of the Trust.
Effective as of the date hereof, the Owner Trustee shall have all rights, powers
and duties set forth herein and in the Statutory Trust Statute with respect
to
accomplishing the purposes of the Trust.
Section
2.07 Liability
of the Holder of the Certificate.
The
Holder of the Certificate shall be jointly and severally liable directly to
and
shall indemnify any injured party for all losses, claims, damages, liabilities
and expenses of the Trust and the Owner Trustee (including Expenses, to the
extent not paid out of the Owner Trust Estate); provided, however, that the
Holder of the Certificate shall not be liable for payments required to be made
on the Notes or the Certificate, or for any losses incurred by a
Certificateholder in the capacity of an investor in the Certificate or a
Noteholder in the capacity of an investor in the Notes. The Holder of the
Certificate shall be liable for and shall promptly pay any entity level taxes
imposed on the Trust. In addition, any third party creditors of the Trust (other
than in connection with the obligations described in the second preceding
sentence for which the Holder of the Certificate shall not be liable) shall
be
deemed third party beneficiaries of this paragraph. The obligations of the
Holder of the Certificate under this paragraph shall be evidenced by the
Certificate.
Section
2.08 Title
to Trust Property.
Except
with respect to the Mortgage Loans, which will be assigned to the Indenture
Trustee pursuant to the Indenture, legal title to the Owner Trust Estate shall
be vested at all times in the Trust as a separate legal entity except where
applicable law in any jurisdiction requires title to any part of the Owner
Trust
Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section
2.09 Situs
of Trust.
The
Trust will be located and administered in the State of Delaware. All bank
accounts maintained by the Owner Trustee on behalf of the Trust shall be located
in the State of Delaware. The Trust shall not have any employees in any state
other than Delaware; provided, however, that nothing herein shall restrict
or
prohibit the Owner Trustee from having employees within or without the State
of
Delaware or taking actions outside the State of Delaware in order to comply
with
Section 2.03. Payments will be received by the Trust only in Delaware, New
York,
Maryland, Minnesota or California, and payments will be made by the Trust only
from Delaware, Maryland, Minnesota, California or New York. The only office
of
the Trust will be at the Corporate Trust Office in Delaware or
California.
Section
2.10 Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The
Depositor is duly organized and validly existing as a limited liability company
in good standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted.
(ii) The
Depositor is duly qualified to do business as a foreign corporation in good
standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its property or the conduct
of
its business shall require such qualifications and in which the failure to
so
qualify would have a material adverse effect on the business, properties, assets
or condition (financial or other) of the Depositor.
(iii) The
Depositor has the power and authority to execute and deliver this Trust
Agreement and to carry out its terms; the Depositor has full power and authority
to convey and assign the property to be conveyed and assigned to and deposited
with the Trust as part of the Owner Trust Estate and the Depositor has duly
authorized such conveyance and assignment and deposit to the Trust by all
necessary corporate action; and the execution, delivery and performance of
this
Trust Agreement have been duly authorized by the Depositor by all necessary
corporate action.
(iv) The
consummation of the transactions contemplated by this Trust Agreement and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the certificate of formation or the limited
liability agreement or bylaws of the Depositor, or any indenture, agreement
or
other instrument to which the Depositor is a party or by which it is bound;
nor
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents); nor violate any law or, to the
best of the Depositor's knowledge, any order, rule or regulation applicable
to
the Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties.
(v) The
Trust
is not required to register as an investment company under the Investment
Company Act and is not under the control of a Person required to so
register.
(vi) The
Depositor has been a “qualified REIT subsidiary” as defined in Section 856(i) of
the Code throughout its existence.
Section
2.11 Investment
Company.
Neither
the Depositor nor any holder of a Certificate shall take any action which would
cause the Trust to become an “investment company” which would be required to
register under the Investment Company Act.
Section
2.12 Transfer
of Trust Estate to Owner Trustee.
(a)
Effective as of the date hereof, the Depositor does hereby assign, transfer,
and
otherwise convey to, and deposit with, the Trust, until this Agreement
terminates pursuant to Section 8.01, the entire Trust Estate, such conveyance
to
be made in exchange for the Notes and the Certificate. Such assignment includes,
without limitation, all amounts payable to and all rights of the holder of
the
Collateral pursuant to this Agreement.
The
conveyance of the Collateral and all other assets constituting the Trust Estate
by the Depositor as contemplated hereby is absolute and is intended by the
parties to constitute a sale of the Collateral and all other assets constituting
the Trust Estate by the Depositor to the Trust. It is, further, not intended
that such conveyance be deemed a pledge of security for a loan. If such
conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor
also
intends and agrees that, in such event:
(i) this
Agreement shall constitute a security agreement under applicable law and shall
be deemed to create a valid and continuing security interest (as defined in
the
applicable UCC) in the Trust Estate (including, without limitation, the
Collateral, the Certificate Distribution Account and any proceeds thereof)
in
favor of the Trust, which security interest is prior to all other Liens, and
is
enforceable as such as against creditors of and purchasers from the
Depositor;
(ii) other
than the security interest granted to the Trust pursuant to this Agreement,
Depositor has not pledged, assigned, sold, granted a security interest in,
or
otherwise conveyed any of the Trust Estate, has not authorized the filing of
and
is not aware of any financing statements against the Trust Estate that includes
a description of collateral covering the Trust Estate other than any financing
statements relating to the security interest granted to the Trust hereunder
or
that has been terminated. The Depositor is not aware of any judgment or tax
lien
filings against Depositor;
(iii) the
Depositor owns and has good and marketable title to the Trust Estate free and
clear of any Lien, claim or encumbrance of any Person;
(iv) the
Certificate Distribution Account constitutes a “deposit account” within the
meaning of the applicable UCC, and the Depositor has directed the Certificate
Paying Agent to become the account holder of the Certificate Distribution
Account. The Certificate Distribution Account is not in the name of any Person
other than as provided in Section 3.10 of this Agreement. The Depositor has
not
consented to the maintenance of the Certificate Distribution Account in
compliance with instructions of any Person other than the Certificate Paying
Agent;
(v) the
Trust
Estate (excluding the Certificate Distribution Account and any proceeds thereof)
constitutes “general intangibles” within the meaning of the applicable UCC. The
Depositor has received all required consents and approvals to the pledge of
the
portions of the Trust Estate (excluding the Certificate Distribution Account
and
any proceeds thereof) constituting payment intangibles;
(vi) the
Depositor has caused or will have caused, within ten days of the Closing Date,
the filing of all appropriate financing statements in the appropriate filing
offices under applicable law in order to perfect the security interest in the
Trust Estate granted to the Trust hereunder. All financing statements filed
or
to be filed against the Depositor in favor of the Trust (or any subsequent
assignee, including, without limitation, the Indenture Trustee) in connection
herewith describing the Trust Estate contain a statement to the following
effect, “A purchase of, or security interest in, any collateral described in
this financing statement will violate the rights of the secured party;”
and
(vii) the
Depositor shall, to the extent consistent with this Agreement, take such
additional reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans and
the other assets of the Trust Estate, such security interest would be a
perfected security interest of first priority under applicable law and will
be
maintained as such throughout the life of this Agreement. Notifications to,
and
acknowledgments, receipts or confirmations from, Persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Owner Trustee on behalf of the Trust (or any subsequent assignee,
including, without limitation, the Indenture Trustee) for the purpose of
perfecting such security interest under applicable law.
(b) The
Owner
Trustee hereby acknowledges the receipt by it of the Trust Estate and such
other
documents and instruments referenced above, and declares that it holds and
will
hold the Trust Estate and such documents and instruments and that it holds
and
will hold all other assets and documents to be included in the Trust Estate,
in
trust for the exclusive use and benefit of the present and future
Certificateholder.
(c) Except
as
expressly provided in Section 8.01, neither the Depositor nor any
Certificateholder shall be able to revoke the Trust established hereunder.
Except as provided in Sections 2.08, 4.01, 4.02, 4.03, 5.01 and 8.01 hereof,
the
Owner Trustee or Certificate Paying Agent (as applicable) shall not assign,
sell, dispose of or transfer any interest in, nor may the Depositor or any
Certificateholder withdraw from the Trust, the Collateral or other asset
constituting the Trust Estate.
ARTICLE
III
CONVEYANCE
OF THE MORTGAGE LOANS; THE CERTIFICATE
Section
3.01 Conveyance
of the Mortgage Loans.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
contribute, transfer, convey and assign to the Trust, on behalf of the Holders
of the Notes and the Certificate, without recourse, all its right, title and
interest in and to the Mortgage Loans, including all interest and principal
received on or with respect to the Mortgage Loans after the Cut-off Date (other
than payments of principal and interest due on the Mortgage Loans on or before
the Cut-off Date). In addition, the Depositor hereby assigns to the Trust all
of
its right, title, and interest in, to, and under the Mortgage Loan Purchase
Agreement. In addition, the Depositor hereby assigns to the Trust all of its
right, title and interest in, to, and under the Corridor Contracts.
The
conveyance of the Mortgage Loans by the Depositor to the Trust hereunder is
intended to facilitate the simultaneous issuance of the Notes under the
Indenture and issuance of the Certificate hereunder to the Depositor as Holder.
The Depositor intends to sell the Certificate to an affiliate of the Depositor
and the Sponsor. Accordingly, at the time of the transaction set forth herein,
the Depositor will retain without interruption, through the ownership of the
Certificate, the economic benefits associated with ownership of the Mortgage
Loans as well as the economic burdens associated with such ownership, subject
to
the lien of the Indenture and subject to this Agreement. If the transactions
contemplated by this Trust Agreement are determined to constitute a financing,
the Depositor hereby grants to the Trust a security interest in the Owner Trust
Estate and all distributions thereon and proceeds thereof, and this Trust
Agreement shall constitute a security agreement under applicable law. In the
event of a REMIC Conversion, the assets of the Owner Trust Estate will be
comprised of REMIC Regular interests.
Section
3.02 Initial
Ownership.
Upon
the formation of the Trust by the contribution by the Depositor pursuant to
Section 2.05 and until the conveyance of the Mortgage Loans pursuant to Section
3.01 and the issuance of the Certificate, and thereafter except as otherwise
permitted hereunder, the Depositor shall be the sole
Certificateholder.
Section
3.03 The
Certificate.
The
Certificate shall be issued in the form of a single Certificate, representing
100% Certificate Percentage Interest. The Certificate (which includes the
Transferor Interest) shall initially be registered in the name of American
Home
Mortgage Acceptance, Inc. The Certificate 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 3.04. The
Certificate, bearing the manual or facsimile signatures of individuals who
were,
at the time when such signatures shall have been affixed, authorized to sign
on
behalf of the Trust, shall be validly issued and entitled to the benefit of
this
Trust Agreement, notwithstanding that such individuals or any of them shall
have
ceased to be so authorized prior to the authentication and delivery of such
Certificate or did not hold such offices at the date of authentication and
delivery of such Certificate. A Person shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such Person's acceptance of a Certificate
duly
registered in such Person's name, pursuant to Section 3.05.
A
transferee of a Certificate shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee's acceptance of a Certificate duly registered
in
such transferee's name pursuant to and upon satisfaction of the conditions
set
forth in Section 3.05.
Section
3.04 Authentication
of Certificate.
The
Owner Trustee shall cause the Certificate issued hereunder to be executed and
authenticated on behalf of the Trust, authenticated and delivered to or upon
the
written order of the Depositor, signed by its chairman of the board, its
president or any vice president, without further corporate action by the
Depositor, in authorized denominations. The Certificate shall not entitle its
holder to any benefit under this Trust Agreement or be valid for any purpose
unless there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Owner Trustee
or the Certificate Registrar by manual signature; such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. The Certificate shall be dated the date
of its authentication.
Section
3.05 Registration
of and Limitations on Transfer and Exchange of the Certificate.
The
Certificate Registrar shall keep or cause to be kept, a Certificate Register
in
which, subject to such reasonable regulations as it may prescribe, the
Certificate Registrar shall provide for the registration of Certificate and
of
transfer and exchange of the Certificate as herein provided. The Securities
Administrator shall be the initial Certificate Registrar. If the Certificate
Registrar resigns or is removed, the Owner Trustee shall appoint a successor
Certificate Registrar. The provisions of Sections 6.01, 6.04, 6.05, 6.06, 6.07,
6.08 and 7.01 shall apply to the Certificate Registrar to the same extent
applicable to the Owner Trustee except the context requires
otherwise.
Subject
to satisfaction of the conditions set forth below with respect to the
Certificate, upon surrender for registration of transfer of the Certificate
at
the office or agency maintained pursuant to Section 3.09, the Owner Trustee
or
the Certificate Registrar shall execute, authenticate and deliver in the name
of
the designated transferee or transferees, a new Certificate evidencing no less
than a 100% Certificate Percentage Interest in authorized denominations of
a
like aggregate amount and dated the date of authentication by the Owner Trustee
or the Certificate Registrar.
Every
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory
to
the Certificate Registrar duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the
Certificate Registrar in accordance with its customary practice.
No
service charge shall be made for any registration of transfer or exchange of
a
Certificate, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may
be
imposed in connection with any transfer or exchange of a Certificate.
No
Person
shall become a Certificateholder until it shall establish its non-foreign status
by submitting to the Certificate Paying Agent an IRS Form W-9 and the
Certificate of Non-Foreign Status set forth in Exhibit D hereto.
No
transfer, sale, pledge or other disposition of a Certificate shall be made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event
of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) (a) an investment
letter in substantially the form attached hereto as Exhibit C which investment
letter shall not be an expense of the Trust, the Owner Trustee, the Indenture
Trustee, the Certificate Registrar, Securities Administrator, the Master
Servicer, the Servicer, the Sponsor or the Depositor and which investment letter
states that, among other things, such transferee (1) is a “qualified
institutional buyer” as defined under Rule 144A, acting for its own account or
the accounts of other “qualified institutional buyers” as defined under Rule
144A, and (2) is aware that the proposed transferor intends to rely on the
exemption from registration requirements under the Securities Act of 1933,
as
amended, provided by Rule 144A or (ii) (a) a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Certificate
Registrar that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from said Act and laws or
is
being made pursuant to said Act and laws, which Opinion of Counsel shall not
be
an expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Securities Administrator, the Master Servicer, the Servicer, the Sponsor or
the
Depositor and (b) the transferee executes a representation letter, substantially
in the form of Exhibit F to the Agreement, and the transferor executes a
representation letter, substantially in the form of Exhibit E hereto, each
acceptable to and in form and substance satisfactory to the Certificate
Registrar, certifying the facts surrounding such transfer, which representation
letters shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar, the Securities Administrator, the Master Servicer, the Servicer,
the
Sponsor or the Depositor and (B) the Certificate of Non-Foreign Status (in
substantially the form attached hereto as Exhibit D) acceptable to and in form
and substance reasonably satisfactory to the Certificate Registrar, which
certificate shall not be an expense of the Trust, the Owner Trustee, the
Certificate Registrar or the Depositor; provided, however that no certification
or Opinion of Counsel will be required in connection with the initial transfer
of any such Certificate by the Depositor to an affiliate of the Depositor.
The
Holder of a Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trust, the Owner Trustee, the Certificate Registrar,
the
Securities Administrator, the Master Servicer, the Servicer and the Depositor
against any liability that may result if the transfer is not so exempt or is
not
made in accordance with such federal and state laws.
Prior
to
a REMIC conversion no transfer, sale, pledge or other disposition of the
Certificate or interest herein shall be made unless the intended transferee
certifies in the form of Exhibit H hereto to the Owner Trustee, the Certificate
Registrar, and the Indenture Trustee that, in connection with the transfer,
it
will acquire both the Trust Certificate and a 100% Percentage Interest in each
Class of Privately Offered Notes then Outstanding, thus becoming a Single Owner
upon completion of the transfer. Notwithstanding the foregoing, a Certificate
may be pledged to secure indebtedness and may be the subject of repurchase
agreements treated as secured indebtedness for federal income tax purposes.
Upon
a default under any such indebtedness, the lender or repurchase agreement
counterparty, as applicable may deliver to the Certificate Registrar, the
Securities Administrator, the Owner Trustee and the Indenture Trustee a
certificate substantially in the form attached hereto as Exhibit I certifying
that a default has occurred and that a REMIC Conversion should be undertaken.
Notwithstanding the foregoing, the provisions of this paragraph shall not apply
to the initial transfer of the Certificate to the Depositor or any Affiliate
thereof or to the transfer to the Initial Single Owner.
No
transfer of the Certificate or any interest therein shall be made to any Person
unless the Depositor, the Owner Trustee, the Indenture Trustee, the Certificate
Registrar and the Master Servicer are provided with an Opinion of Counsel which
establishes to the satisfaction of the Certificate Registrar that the purchase
of the Certificate, operation of the Trust and management of Trust assets are
permissible under applicable law, will not constitute or result in any
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Depositor, the Owner Trustee, the Certificate Registrar the
Securities Administrator, the Master Servicer, the Servicer or the Sponsor
to
any obligation or liability (including obligations or liabilities under ERISA
or
Section 4975 of the Code) in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Owner
Trustee, the Indenture Trustee, the Certificate Registrar, the Securities
Administrator, the Master Servicer, the Servicer or the Sponsor. In lieu of
such
Opinion of Counsel, a Person acquiring such Certificate may provide a
certification in the form of Exhibit G to this Agreement to the Depositor,
the
Owner Trustee and the Certificate Registrar, which the Depositor, the Owner
Trustee, the Indenture Trustee, the Certificate Registrar, the Securities
Administrator, the Master Servicer, the Servicer and the Sponsor may rely upon
without further inquiry or investigation. Neither an Opinion of Counsel nor
a
certification will be required in connection with the initial transfer of any
such Certificate by the Depositor to an affiliate of the Depositor (in which
case, the Depositor or any affiliate thereof shall be deemed to have represented
that such affiliate is not a Plan or a Person investing Plan Assets of any
Plan)
and the Owner Trustee and the Certificate Registrar shall be entitled to
conclusively rely upon a representation (which, upon the request of the Owner
Trustee or the Certificate Registrar, shall be a written representation) from
the Depositor of the status of such transferee as an affiliate of the
Depositor.
No
transfer of any Trust Certificate shall be made unless the proposed transferee
of such Trust Certificate (1) provides to the Securities
Administrator the appropriate tax certification form that would eliminate
any withholding or deduction for taxes from amounts payable by the Swap Provider
pursuant to the Interest Rate Swap Agreement, to the Securities Administrator
on
behalf of the Trust (i.e., IRS Form W-9 or IRS Form ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇
or
W-8ECI, as applicable (or any successor form thereto), together with any
applicable attachments) and (2) agrees to update such forms (i) upon expiration
of any such form, (ii) as required under then applicable U.S. Treasury
regulations and (iii) promptly upon learning that such form has become obsolete
or incorrect, each as a condition to such transfer. Upon receipt of any such
tax
certification form from a proposed transferee of the Trust Certificate,
the Securities Administrator will forward such tax certification form
provided to it to the Swap Provider. The holder of the Trust Certificate and
any
transferee thereof will be deemed to have consented to the Securities
Administrator forwarding to the Swap Provider any such tax certification form
it
has provided and updated in accordance with these transfer restrictions. Any
purported sales or transfers of the Trust Certificate to a transferee which
does
not comply with the requirements of this paragraph will be deemed null and
void
under the Trust Agreement. So long as the holder of the Trust Certificate
complies with these restrictions and the Swap Provider receives the appropriate
tax certification forms as described above, under current federal income tax
law, there will be no withholding or deduction for taxes from any amounts
payable by the Swap Provider, pursuant to the Interest Rate Swap Agreement,
to
the Securities Administrator on behalf of the Trust. In addition, upon a REMIC
Conversion, the REMIC Indenture will provide for delivery to Swap Provider
of
the appropriate tax certification from the owner of the Swap Account, for
federal income tax purposes, forms that would eliminate any withholding or
deduction for taxes from amounts payable by the Swap Provider pursuant to the
Interest Rate Swap Agreement, to the Securities Administrator on behalf of
the
Trust, (i.e., IRS Form W-9 or IRS Form ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8ECI, as
applicable (or any successor form thereto), together with any applicable
attachments) and any updates thereto from the then applicable persons required
to provide such forms to the Swap Provider.
No
offer,
sale, transfer or other disposition (including pledge) of any Certificate shall
be made to any affiliate of the Depositor or the Issuing Entity, other than
the
initial transfer of the Certificate to the Depositor.
With
respect the restriction on transfer of the Notes contained in this Section
3.05,
any transferor providing an Opinion of Counsel shall (i) deliver such opinion
to
the appropriate addresses, (ii) confirm the acceptability of such opinion with
the applicable addresses and (iii) inform the Note Registrar of delivery and
confirmation described in clause (i) and clause (ii).
Section
3.06 Mutilated,
Destroyed, Lost or Stolen Certificate.
If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar,
or
if the Certificate Registrar shall receive evidence to its satisfaction of
the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity
as
may be required by them to save each of them harmless, then in the absence
of
notice to the Certificate Registrar or the Owner Trustee that such Certificate
has been acquired by a bona fide purchaser, the Owner Trustee shall execute
on
behalf of the Trust, and the Owner Trustee or the Certificate Registrar shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of any new Certificate under
this
Section 3.06, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any expenses of the Owner Trustee or the
Certificate Registrar (including fees and expenses of counsel) and any tax
or
other governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section 3.06 shall constitute
conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section
3.07 Persons
Deemed a Certificateholder.
Prior
to due presentation of a Certificate for registration of transfer, the Owner
Trustee, the Certificate Registrar or any Certificate Paying Agent may treat
the
Person in whose name the Certificate is registered in the Certificate Register
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 5.01 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
3.08 Access
to the Certificateholder’s Names and Addresses.
The
Certificate Registrar shall furnish or cause to be furnished to the Depositor,
the Certificate Paying Agent or the Owner Trustee, within 15 days after receipt
by the Certificate Registrar of a written request therefor from the Depositor,
the Certificate Paying Agent or the Owner Trustee, of the name and address
of the Certificateholder as of the most recent record date.
The
Holder,
by receiving and holding the
Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Paying Agent, the Certificate Registrar or the Owner
Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section
3.09 Maintenance
of Office or Agency.
The
Owner Trustee on behalf of the Trust, shall maintain an office or offices or
agency or agencies where the Certificate may be surrendered for registration
of
transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Certificate and the Basic Documents may be delivered. The
Owner Trustee initially designates the office of the Securities Administrator
for purposes of service of notices and demands and surrender. The Owner Trustee
shall give prompt written notice to the Depositor, the Certificate Paying Agent,
the Certificate Registrar and the Certificateholder of any change in the
location of the Certificate Register or any such office or agency.
Section
3.10 Certificate
Paying Agent.
(a)
The
Certificate Paying Agent shall make distributions to the Certificateholder
from
the Certificate Distribution Account on behalf of the Trust in accordance with
the provisions of the Certificate and the statement for such Payment Date
provided by the Securities Administrator, in accordance with Section 7.05 of
the
Indenture hereof from payments remitted to the Certificate Paying Agent by
the
Indenture Trustee pursuant to Section 3.05 of the Indenture. The Trust hereby
appoints the Securities Administrator as Certificate Paying Agent and the
Securities Administrator hereby accepts such appointment and further agrees
that
it will be bound by the provisions of this Trust Agreement relating to the
Certificate Paying Agent and shall:
(i) hold
all
sums held by it for the payment of amounts due with respect to the Certificate
in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein
provided;
(ii) give
the
Owner Trustee notice of any default by the Trust of which a Responsible Officer
of the Certificate Paying Agent has actual knowledge in the making of any
payment required to be made with respect to the Certificate;
(iii) at
any
time during the continuance of any such default, upon the written request of
the
Owner Trustee forthwith pay to the Owner Trustee on behalf of the Trust all
sums
so held in Trust by such Certificate Paying Agent;
(iv) not
resign from its position as Certificate Paying Agent so long as it is Securities
Administrator except that it shall immediately resign as Certificate Paying
Agent and forthwith pay to the Owner Trustee on behalf of the Trust all sums
held by it in trust for the payment of the Certificate if at any time it ceases
to meet the standards under this Section 3.10 required to be met by the
Certificate Paying Agent at the time of its appointment;
(v) comply
with all requirements of the Code with respect to the withholding from any
payments made by it on the Certificate of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting requirements in
connection therewith; and
(vi) not
institute bankruptcy proceedings against the Issuing Entity in connection with
this Trust Agreement.
(b) The
Trust
may revoke such power and remove the Certificate Paying Agent if it determines
in its sole discretion that the Certificate Paying Agent shall have failed
to
perform its obligations under this Trust Agreement in any material respect.
In
the event that the Securities Administrator shall no longer be the Certificate
Paying Agent under this Trust Agreement and Paying Agent under the Indenture,
the Owner Trustee shall appoint a successor to act as Certificate Paying Agent
(which shall be a bank or trust company) and which shall also be the successor
Paying Agent under the Indenture. The Owner Trustee shall cause such successor
Certificate Paying Agent or any additional Certificate Paying Agent appointed
by
the Owner Trustee to execute and deliver to the Owner Trustee an instrument
to
the effect set forth in Section 3.10(a) as it relates to the Certificate Paying
Agent. The Certificate Paying Agent shall return all unclaimed funds to the
Trust and upon removal of a Certificate Paying Agent such Certificate Paying
Agent shall also return all funds in its possession to the Trust. The
provisions of Sections 6.01, 6.04, 6.05, 6.06, 6.07, 6.08 and 7.01 shall apply
to the Certificate Paying Agent to the same extent applicable to the Owner
Trustee except the context requires otherwise.
Any
reference in this Agreement to the Certificate Paying Agent shall include any
co-paying agent unless the context requires otherwise.
The
Certificate Paying Agent shall establish and maintain with itself a trust
account (the “Certificate Distribution Account”) in which the Certificate Paying
Agent shall deposit, on the same day as it is received from the Indenture
Trustee, each remittance received by the Certificate Paying Agent with respect
to payments made pursuant to the Indenture. Funds in the Certificate
Distribution Account shall not be invested. The Certificate Paying Agent shall
make all distributions to the Certificate, from moneys on deposit in the
Certificate Distribution Account, in accordance with Section 5.01
hereof.
ARTICLE
IV
AUTHORITY
AND DUTIES OF OWNER TRUSTEE
Section
4.01 General
Authority.
The
Owner Trustee is authorized and directed to execute and deliver the Basic
Documents to which the Trust is to be a party and each certificate or other
document attached as an exhibit to or contemplated by the Basic Documents to
which the Trust is to be a party and any amendment or other agreement or
instrument described herein, as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, except as otherwise provided in this
Trust Agreement, to take all actions required of the Trust pursuant to the
Basic
Documents.
Section
4.02 General
Duties.
It
shall be the duty of the Owner Trustee to discharge (or cause to be discharged)
all of its responsibilities pursuant to the terms of this Trust Agreement and
the Basic Documents to which the Trust is a party and to administer the Trust
in
the interest of the Certificateholder, subject to the Basic Documents and in
accordance with the provisions of this Trust Agreement.
Section
4.03 Action
upon Instruction.
(a)
Subject
to Article IV and in accordance with the terms of the Basic Documents, the
Certificateholder may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by written
instruction of the Certificateholder pursuant to Article IV.
(b) Notwithstanding
the foregoing, the Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely
to
result in liability on the part of the Owner Trustee or is contrary to the
terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever
the Owner Trustee is required to decide between alternative courses of action
permitted or required by the terms of this Trust Agreement or under any Basic
Document, or in the event that the Owner Trustee is unsure as to the application
of any provision of this Trust Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this Trust
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take
with respect to a particular set of facts, the Owner Trustee shall promptly
give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholder 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 Certificateholder. If the Owner Trustee
shall not have received appropriate instruction within 10 days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action not inconsistent with this
Trust Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholder, and the Owner Trustee shall have no
liability to any Person for such action or inaction.
Section
4.04 No
Duties Except as Specified under Specified Documents or in
Instructions.
The
Owner Trustee shall not have any duty or obligation to manage, make any payment
with respect to, register, record, sell, dispose of, or otherwise deal with
the
Owner Trust Estate, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Owner Trustee is a party, except as expressly provided (i) in accordance with
the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Trust Agreement, (ii) in accordance with the Basic Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 4.03; and no implied duties or obligations shall
be
read into this Trust Agreement or any Basic Document against the Owner Trustee.
The Owner Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Trust Agreement or any Basic Document. The
Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Owner Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the
Owner
Trust Estate.
Section
4.05 Restrictions.
(a)
The
Owner Trustee or the Depositor (or an Affiliate thereof) shall not take any
action (x) that is inconsistent with the purposes of the Trust set forth in
Section 2.03, (y) that, to the actual knowledge of the Owner Trustee based
on an
Opinion of Counsel rendered by a law firm generally recognized to be qualified
to opine concerning the tax aspects of asset securitization, would result in
the
Trust becoming taxable as a corporation for federal income tax purposes would
result in the amendment or modification of the Basic Documents or this Trust
Agreement. The Certificateholder shall not direct the Owner Trustee to take
action that would violate the provisions of this Section 4.05. Notwithstanding
the preceding sentence, the Owner Trustee will not prohibit any actions
contemplated here in the case of a REMIC Conversion and will reasonably
cooperate with the Securities Administrator in carrying out the events
contemplated following a REMIC Conversion.
(b) The
Owner
Trustee shall not convey or transfer any of the Trust's properties or assets,
including those included in the Trust Estate, to any person unless (a) it shall
have received an Opinion of Counsel rendered by a law firm generally recognized
to be qualified to opine concerning the tax aspects of asset securitization
to
the effect that such transaction will not have any material adverse tax
consequence to the Trust or any Certificateholder and (b) such conveyance or
transfer shall not violate the provisions of Section 3.16(b) of the Indenture.
Notwithstanding the preceding sentence, the Owner Trustee will not prohibit
any
actions contemplated here in the case of a REMIC Conversion and will reasonably
cooperate with the Securities Administrator in carrying out the events
contemplated following a REMIC Conversion.
Section
4.06 Prior
Notice to Certificateholder 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 Certificateholder in writing of the proposed action and the
Certificateholder shall not have notified the Owner Trustee in writing prior
to
the 30th day after such notice is given that such Certificateholder have
withheld consent or provided alternative direction:
(a) the
initiation of any claim or lawsuit by the Trust (except claims or lawsuits
brought in connection with the collection of cash distributions due and owing
under the Mortgage Loans) and the compromise of any action, claim or lawsuit
brought by or against the Trust (except with respect to the aforementioned
claims or lawsuits for collection of cash distributions due and owing under
the
Mortgage Loans);
(b) the
election by the Trust to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Statutory Trust
Statute);
(c) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is required;
(d) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is not required and such amendment materially
adversely affects the interest of the Certificateholder; and
(e) the
appointment pursuant to the Indenture of a successor Note Registrar, Paying
Agent or Indenture Trustee or pursuant to this Trust Agreement of a successor
Certificate Registrar or Certificate Paying Agent or the consent to the
assignment by the Note Registrar, Paying Agent, Indenture Trustee, Certificate
Registrar or Certificate Paying Agent of its obligations under the Indenture
or
this Trust Agreement, as applicable.
Section
4.07 Action
by Certificateholder with Respect to Certain Matters.
The
Owner Trustee shall not have the power, except upon the direction of the
Certificateholder, and except as expressly provided in the Basic Documents,
to
sell the Mortgage Loans after the termination of the Indenture. The Owner
Trustee shall take the actions referred to in the preceding sentence only upon
written instructions signed by the Certificateholder.
Section
4.08 Action
by Certificateholder with Respect to Bankruptcy.
The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust except as specifically set forth Section 10.15
hereof.
Section
4.09 Restrictions
on Certificateholder’s Power.
The
Certificateholder shall not direct the Owner Trustee to take or to refrain
from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Trust Agreement or any of the
Basic
Documents or would be contrary to Section 2.03, nor shall the Owner Trustee
be
obligated to follow any such direction, if given.
Section
4.10 Majority
Control.
Except
as expressly provided herein, any the written notice of the Certificateholder
delivered pursuant to this Trust Agreement shall be effective if signed by
the
Certificateholder at the time of the delivery of such notice.
Section
4.11 Optional
Redemption.
Upon
receipt of written instructions provided to the Owner Trustee by the
Certificateholder, if any, the Owner Trustee shall cause the Issuing Entity
to
redeem the Notes in accordance with Section 8.08 of the Indenture and shall
provide all necessary notices on behalf of the Issuing Entity to effect the
foregoing, provided that such Holder shall deposit with the Securities
Administrator an amount equal to the aggregate redemption price specified under
Section 8.08 of the Indenture. The Owner Trustee shall not have the power to
exercise the right of the Issuing Entity to redeem the Notes pursuant to Section
8.08 of the Indenture, except as provided above. Upon redemption of the Notes
by
the Issuing Entity as a result of the purchase of such Notes by the
Certificateholder pursuant to Section 8.08 of the Indenture, as applicable,
the
Owner Trustee shall cause the release of the related Mortgage Loans from the
Trust Estate to the Certificateholder.
Section
4.12 Optional
Repurchase of the Mortgage Loans.
The
Certificateholder shall have the option at any one time, but not the obligation,
to purchase five (5) or more Mortgage Loans selected by it in its sole
discretion as long as the aggregate Outstanding Principal Balance of such
Mortgage Loans does not exceed 1.00% of the Pool Balance. Such Mortgage Loans
shall be purchased from the Trust Estate at a price equal to the Repurchase
Price or equal to the aggregate fair market value of such Mortgage Loans. If
at
any time the Certificateholder exercises such option, it shall immediately
notify, or cause to be notified, the Indenture Trustee, the Master Servicer,
the
applicable Servicer, the Securities Administrator and the Custodian (which
certification shall include a statement to the effect that all amounts required
to be deposited in the Payment Account pursuant to Section 3.01 of the
applicable Servicing Agreement have been or will be so deposited) and shall
request delivery to it of the Mortgage File. Upon receipt of such certification
and request, the Custodian as agent for the Indenture Trustee shall promptly
release the related Mortgage Files to the Certificateholder. Notwithstanding
the
foregoing, if a TMP Trigger Event occurs the aforementioned optional repurchase
right will terminate.
ARTICLE
V
APPLICATION
OF TRUST FUNDS
Section
5.01 Distributions.
(a)
On each
Payment Date, the Certificate Paying Agent shall distribute to the
Certificateholder all funds on deposit in the Certificate Distribution Account
and available therefor (as provided in Section 3.05 of the Indenture, in
accordance with the statement for such Payment Date provided by the Securities
Administrator pursuant to Section 7.05 of the Indenture) for such Payment Date
as reduced by any amount then owing to the Owner Trustee hereunder and any
Expenses of the Trust then remaining unpaid.
(b) In
the
event that any withholding tax is imposed on the distributions (or allocations
of income) to the Certificateholder, such tax shall reduce the amount otherwise
distributable to the Certificateholder in accordance with this Section 5.01.
The
Certificate Paying Agent is hereby authorized and directed to retain or cause
to
be retained from amounts otherwise distributable to the Certificateholder
sufficient funds for the payment of any tax that is legally owed by the Trust
(but such authorization shall not prevent the Owner Trustee from contesting
any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to the Certificateholder shall be treated
as cash distributed to such Certificateholder at the time it is withheld by
the
Certificate Paying Agent and remitted to the appropriate taxing authority.
If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the
Certificate Paying Agent may in its sole discretion withhold such amounts in
accordance with this paragraph (b).
(c) Distributions
to the Certificateholder shall be subordinated to the creditors of the Trust,
including the Noteholders.
Section
5.02 Method
of Payment.
Subject
to Section 8.01(c), distributions required to be made to the Certificateholder
on any Payment Date as provided in Section 5.01 shall be made to the
Certificateholder of record on the preceding record date by wire transfer,
in
immediately available funds, to the account of such Holder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided to the Certificate Registrar appropriate written instructions
at
least five Business Days prior to such Payment Date or, if not, by check mailed
to such Certificateholder at the address of such Holder appearing in the
Certificate Register.
Section
5.03 Tax
Returns.
The
Securities Administrator shall (a) maintain (or cause to be maintained) the
books of the Trust on a calendar year basis using the accrual method of
accounting, (b) deliver to the Indenture Trustee to be forwarded to each
Noteholder and to the Certificate Registrar to be forwarded to the
Certificateholder as may be required by the Code and applicable Treasury
Regulations, such information as may be required to enable the Certificateholder
to prepare its federal and state income tax returns, (c) prepare and file or
cause to be prepared and filed such tax returns relating to the Trust, as may
be
required by the Code and applicable Treasury Regulations (making such elections
as may from time to time be required or appropriate under any applicable state
or federal statutes, rules or regulations); provided, however, that the
Securities Administrator shall not be required to (x) compute the Issuing
Entity's gross income; (y) prepare and file corporation tax returns on behalf
of
the Trust or (z) calculate and/or report any “excess inclusions” with respect to
the Certificate, and provided, further, that the Securities Administrator shall
not be required to do any additional tax work caused by any change in the tax
treatment of the Notes or the Trust from the treatment contemplated hereunder
on
the Closing Date unless the Securities Administrator receives (i) an Opinion
of
Counsel reasonably satisfactory to it (which shall not be at the Securities
Administrator’s expense, but shall be at the expense of the Depositor or other
party furnishing such opinion) as to the necessity of such filings and (ii)
reasonable additional compensation for the preparation and filing of such
additional returns. The Owner Trustee shall sign all tax and information returns
prepared or caused to be prepared by the Securities Administrator pursuant
to
this Section 5.03 at the request of the Securities Administrator, and in doing
so shall rely entirely upon, and shall have no liability for information or
calculations provided by, the Securities Administrator. There shall be no
separate tax reporting requirements with respect to the Transferor
Interest.
The
Certificate Registrar shall collect or cause to be collected any withholding
tax
as described in and in accordance with Section 5.01 of this Trust Agreement
with
respect to income or distributions to the Certificateholder.
The
Paying Agent shall prepare or cause to be prepared the appropriate forms
relating to the collection of withholding tax by the Certificate
Registrar.
Subsequent
to a TMP Trigger Event, the Securities Administrator shall prepare and file,
or
cause to be prepared and filed, in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit Income Tax Return (Form 1066 or any successor form adopted
by
the Internal Revenue Service) and prepare and file or cause to be prepared
and
filed with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with respect
to any such REMIC, containing such information and at the times and in the
manner as may be required by the Code or state or local tax laws, regulations,
or rules, and furnish or cause to be furnished to the Certificateholder the
schedules, statements or information at such times and in such manner as may
be
required thereby.
Section
5.04 Statements
to the Certificateholder.
On each
Payment Date, the Securities Administrator shall make available to the
Certificateholder the statement or statements provided to the Owner Trustee
and
the Certificate Paying Agent by the Securities Administrator pursuant to Section
7.05 of the Indenture with respect to such Payment Date.
ARTICLE
VI
CONCERNING
THE OWNER TRUSTEE
Section
6.01 Acceptance
of Trusts and Duties.
The
Owner Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Trust
Agreement. The Owner Trustee and the Certificate Paying Agent also agree to
disburse all moneys actually received by each of them constituting part of
the
Owner Trust Estate upon the terms of the Basic Documents and this Trust
Agreement. The Owner Trustee shall not be answerable or accountable hereunder
or
under any Basic Document under any circumstances, except (i) for its own willful
misconduct, gross negligence or bad faith or grossly negligent failure to act
or
(ii) in the case of the inaccuracy of any representation or warranty contained
in Section 6.03 expressly made by the Owner Trustee. In particular, but not
by
way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) The
Owner
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in accordance with the instructions of the Certificateholder
permitted under this Trust Agreement;
(b) No
provision of this Trust Agreement or any Basic Document shall require the Owner
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its rights, duties or powers hereunder
or
under any Basic Document if the Owner Trustee shall have reasonable grounds
for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured or provided to it;
(c) Under
no
circumstances shall the Owner Trustee be liable for indebtedness evidenced
by or
arising under any of the Basic Documents, including the principal of and
interest on the Notes;
(d) The
Owner
Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Trust Agreement or for the due execution hereof by the
Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate, or for or in respect of the validity
or sufficiency of the Basic Documents, the Notes, the Certificate, other than
the certificate of authentication on the Certificate, if executed by the Owner
Trustee, and the Owner Trustee shall in no event assume or incur any liability,
duty, or obligation to any Noteholder or to the Certificateholder, other than
as
expressly provided for herein or expressly agreed to in the Basic
Documents;
(e) The
execution, delivery, authentication and performance by it of this Trust
Agreement will not require the authorization, consent or approval of, the giving
of notice to, the filing or registration with, or the taking of any other action
with respect to, any governmental authority or agency;
(f) The
Owner
Trustee shall not be liable for the default or misconduct of the Depositor,
Indenture Trustee, Certificate Registrar, the Master Servicer or any Servicer
under any of the Basic Documents or otherwise and the Owner Trustee shall have
no obligation or liability to perform the obligations of the Trust under this
Trust Agreement or the Basic Documents that are required to be performed by
the
Indenture Trustee under the Indenture, the Master Servicer under the Master
Servicing Agreement, the Servicer under the Servicing Agreement;
and
(g) The
Owner
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it or duties imposed by this Trust Agreement, or to institute, conduct
or defend any litigation under this Trust Agreement or otherwise or in relation
to this Trust Agreement or any Basic Document, at the request, order or
direction of the Certificateholder, unless such Certificateholder has offered
to
the Owner Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee therein
or
thereby. The right of the Owner Trustee to perform any discretionary act
enumerated in this Trust Agreement or in any Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for other
than its gross negligence, bad faith, grossly negligent failure to act or
willful misconduct in the performance of any such act.
Section
6.02 Furnishing
of Documents.
The
Owner Trustee shall furnish to the Securityholders promptly upon receipt of
a
written reasonable request therefor, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Trust under the Basic Documents.
Section
6.03 Representations
and Warranties.
The
Owner Trustee hereby represents and warrants to the Depositor, for the benefit
of the Certificateholder, that:
(a) It
is a
banking corporation duly organized and validly existing in good standing under
the laws of the State of Delaware. It has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Trust
Agreement;
(b) It
has
taken all corporate action necessary to authorize the execution and delivery
by
it of this Trust Agreement, and this Trust Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver
this Trust Agreement on its behalf;
(c) Neither
the execution nor the delivery by it of this Trust Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance by
it
with any of the terms or provisions hereof will contravene any federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
it or any of its properties may be bound;
(d) This
Trust Agreement, assuming due authorization, execution and delivery by the
Owner
Trustee, the Depositor and the Certificate Paying Agent, constitutes a valid,
legal and binding obligation of the Owner Trustee, enforceable against it in
accordance with the terms hereof, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity, regardless
of
whether such enforcement is considered in a proceeding in equity or at
law;
(e) The
Owner
Trustee is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any Federal, state, municipal or governmental
agency, which default might have consequences that would materially and
adversely affect the condition (financial or other) or operations of the Owner
Trustee or its properties or might have consequences that would materially
adversely affect its performance hereunder; and
(f) No
litigation is pending or, to the best of the Owner Trustee's knowledge,
threatened against the Owner Trustee which would prohibit its entering into
this
Trust Agreement or performing its obligations under this Trust
Agreement.
Section
6.04 Reliance;
Advice of Counsel.
(a)
The
Owner Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, note, or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full
force
and effect. As to any fact or matter the method of determination of which is
not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by
the
treasurer or other authorized officers of the relevant party, as to such fact
or
matter and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In
the
exercise or administration of the Trust hereunder and in the performance of
its
duties and obligations under this Trust Agreement or the Basic Documents, the
Owner Trustee (i) may act directly or through its agents, attorneys, custodians
or nominees (including persons acting under a power of attorney) pursuant to
agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents, attorneys, custodians
or
nominees (including persons acting under a power of attorney) if such persons
have been selected by the Owner Trustee with reasonable care, and (ii) may
consult with counsel, accountants and other skilled persons to be selected
with
reasonable care and employed by it. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
opinion or advice of any such counsel, accountants or other such Persons and
not
contrary to this Trust Agreement or any Basic Document.
Section
6.05 Limitation
of Liability of Wilmington Trust Company.
It is
expressly understood and agreed by the parties hereto that (a) this Agreement
is
executed and delivered by Wilmington Trust Company, not individually or
personally but solely as Owner Trustee, in the exercise of the powers and
authority conferred and vested in it under the Trust Agreement, (b) each of
the
representations, undertakings and agreements herein made on the part of Trust
is
made and intended not as a personal representation, undertaking or agreement
by
Wilmington Trust Company but is made and intended for the purpose of binding
only the Trust, (c) nothing herein contained shall be construed as creating
any
liability on Wilmington Trust Company, individually or personally, to perform
any covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person claiming
by, through or under the parties hereto and (d) under no circumstances shall
Wilmington Trust Company be personally liable for the payment of any
indebtedness or expenses of the Trust or be liable for the breach or failure
of
any obligation, representation, warranty or covenant made or undertaken by
the
Trust under this Agreement or otherwise. Except as provided in this Article
VI,
in accepting the trusts hereby created Wilmington Trust Company acts solely
as
Owner Trustee hereunder and not in its individual capacity, and all Persons
having any claim against the Owner Trustee by reason of the transactions
contemplated by this Trust Agreement or any Basic Document shall look only
to
the Owner Trust Estate for payment or satisfaction thereof.
Section
6.06 Owner
Trustee Not Liable for the Certificate or Related Documents.
The
recitals contained herein and in the Certificate (other than as set forth in
Section 6.03 herein and the signatures of the Owner Trustee on the Certificate)
shall be taken as the statements of the Depositor, and the Owner Trustee assumes
no responsibility for the correctness thereof. Other than as set forth in
Section 6.03, the Owner Trustee makes no representations as to the validity
or
sufficiency of this Trust Agreement, of any Basic Document or of the Certificate
(other than the signatures of the Owner Trustee on the Certificate) or the
Notes, or of any Related Documents, or of MERS or the MERS® System. The Owner
Trustee shall at no time have any responsibility or liability with respect
to
the sufficiency of the Owner Trust Estate or its ability to generate the
payments to be distributed to the Certificateholder under this Trust Agreement
or the Noteholders under the Indenture, including compliance by the Depositor
or
the Sponsor with any warranty or representation made under any Basic Document
or
in any related document or the accuracy of any such warranty or representation,
or any action of the Certificate Paying Agent, the Certificate Registrar, the
Securities Administrator or the Indenture Trustee taken in the name of the
Owner
Trustee.
Section
6.07 Owner
Trustee May Own the Certificate and Notes.
The
Owner Trustee in its individual or any other capacity may, subject to Section
3.05, become the owner or pledgee of the Certificate or Notes and may deal
with
the Depositor, the Sponsor, the Certificate Paying Agent, the Certificate
Registrar and the Indenture Trustee in transactions with the same rights as
it
would have if it were not Owner Trustee.
Section
6.08 Payments
from Owner Trust Estate.
All
payments to be made by the Owner Trustee under this Trust Agreement or any
of
the Basic Documents to which the Owner Trustee is a party shall be made only
from funds on deposit in the Certificate Distribution Account, the income and
proceeds of the Owner Trust Estate or from other amounts required to be provided
by the Certificateholder and only to the extent that the Owner Trust shall
have
received funds on deposit in the Certificate Distribution Account, income or
proceeds from the Owner Trust Estate or the Certificateholder to make such
payments in accordance with the terms hereof. Wilmington Trust Company, in
its
individual capacity, shall not be liable for any amounts payable under this
Trust Agreement or any of the Basic Documents to which the Owner Trustee is
a
party.
Section
6.09 Doing
Business in Other Jurisdictions.
Notwithstanding anything contained herein to the contrary, neither Wilmington
Trust Company 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, even after the appointment of a co-trustee or separate trustee in
accordance with Section 9.05 hereof, (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 the State
of Delaware becoming payable by Wilmington Trust Company; or (iii) subject
Wilmington Trust Company 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 Wilmington Trust Company or the Owner
Trustee, as the case may be, contemplated hereby.
Section
6.10 Liability
of Certificate Registrar and Certificate Paying Agent.
All
provisions affording protection or rights to or limiting the liability of the
Owner Trustee, including the provisions of this Agreement permitting the Owner
Trustee to resign, merge or consolidate, shall inure as well to the Certificate
Registrar and Certificate Paying Agent.
Section
6.11 Cap
Contracts and Swap Agreement.
(a)The
Owner
Trustee is hereby directed to execute and deliver the Swap Agreement on behalf
of Party B (as defined therein) and to exercise the rights, to perform the
obligations, and make the representations of Party B thereunder, solely in
its
capacity as Owner Trustee on behalf of Party B (as defined therein) and not
in
its individual capacity. The Sponsor, the Servicer, the Master Servicer, the
Securities Administrator, the Depositor and the Noteholders by acceptance of
their Notes acknowledge and agree that (i) the Owner Trustee shall execute
and
deliver the Swap Agreement on behalf of Party B (as defined therein) and (ii)
the Securities Administrator, on behalf of the Owner Trustee, shall exercise
the
rights and perform the obligations of Party B thereunder solely in its capacity
as Securities Administrator and not in its individual capacity. Amounts payable
by the Securities Administrator on any Payment Date to the Swap Provider shall
be paid by the Securities Administrator as provided in the Indenture. The
Securities Administrator in its individual capacity shall have no responsibility
for any of the undertakings, agreements or representations with respect to
the
Swap Agreement, including, without limitation, for making any payments
thereunder.
The
Owner
Trustee is hereby directed to execute and deliver Cap Contracts on behalf of
Party B (as defined therein) and to exercise the rights, to perform the
obligations, and make the representations of Party B thereunder, solely in
its
capacity as Owner Trustee on behalf of Party B (as defined therein) and not
in
its individual capacity. The Sponsor, the Servicer, the Master Servicer, the
Securities Administrator, the Depositor and the Noteholders by acceptance of
their Notes acknowledge and agree that (i) the Owner Trustee shall execute
and
deliver the Cap Contracts on behalf of Party B (as defined therein) and (ii)
the
Securities Administrator, on behalf of the Owner Trustee, shall exercise the
rights and perform the obligations of Party B (as defined therein) thereunder
solely in its capacity as Securities Administrator and not in its individual
capacity. Amounts payable by the Securities Administrator on any Payment Date
to
the related Cap Contract Provider shall be paid by the Securities Administrator
as provided in the Indenture. The Securities Administrator in its individual
capacity shall have no responsibility for any of the undertakings, agreements
or
representations with respect to the Cap Contracts, including, without
limitation, for making any payments thereunder.
Any
acquisition of a derivative contract shall be accompanied by (i) an appropriate
amendment to this Agreement, and (ii) any Opinion of Counsel required by Section
10.01.
(b)
All
collections, proceeds and other amounts in respect of the derivative contracts
payable by the derivative counterparty shall be distributed to the
Certificateholders on the Payment Date following receipt thereof by the
Certificate Paying Agent.
(c)
Any
derivative contract that provides for any payment obligation on the part of
the
Trust must (i) be without recourse to the assets of the Trust, (ii) contain
a
non-petition covenant provision from the derivative counterparty, (iii) limit
payment dates thereunder for payments, if any, by the Trust to Payment Dates
(iv) contain a provision limiting any cash payments due to the derivative
counterparty on any, day under such derivative contract solely to funds
available therefor in the Certificate Distribution Account available to make
payments to the Holders of the Certificate on such Payment Date, and (v) provide
for copies of all notices and correspondence to be provided to the Certificate
Paying Agent.
(d)
Each
derivative contract must (i) provide for the direct payment of any amounts
by
the derivative counterparty thereunder to the Certificate Distribution Account
at least one Business Day prior to the related Payment Date, (ii) contain an
assignment of all of the Trust’s rights (but none of its obligations) under such
derivative contract to the Owner Trustee on behalf the Certificateholder and
shall include an express consent to the derivative counterparty to such
assignment, (iii) provide that in the event of the occurrence of an Event of
Default, such derivative contract shall terminate upon the direction of a 50.01%
or greater Percentage Interest of the Certificate, and (iv) prohibit the
derivative counterparty from “setting-off’ or “netting” other obligations of the
Trust and its Affiliates against such derivative counterparty’s payment
obligations thereunder.
(e)
The
Sponsor shall determine, in its sole discretion, whether any derivative contract
conforms to the requirements of Section 6.11(c) and (d).
(f)
Neither the Sponsor nor the Depositor shall have any direct or indirect
obligation under the derivative contracts.
ARTICLE
VII
COMPENSATION
OF OWNER TRUSTEE
Section
7.01 Owner
Trustee's Fees and Expenses.
The
Owner Trustee shall receive as compensation for its services hereunder the
Owner
Trustee's Fee which shall be payable by American Home Mortgage Servicing, Inc.
The Owner Trustee shall be reimbursed by the Depositor for its reasonable
expenses hereunder and under the Basic Documents, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may reasonably employ in connection
with the exercise and performance of its rights and its duties hereunder and
under the Basic Documents.
Section
7.02 Indemnification.
The
Depositor shall indemnify, defend and hold harmless the Owner Trustee, the
Certificate Registrar and the Certificate Paying Agent, solely in its capacity
as Certificate Registrar and Certificate Paying Agent, and their respective
successors, assigns, agents and servants (collectively, the “Indemnified
Parties”) from and against any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees and expenses) of
any
kind and nature whatsoever (collectively, “Expenses”) which may at any time be
imposed on, incurred by, or asserted against any Indemnified Party in any way
relating to or arising out of this Trust Agreement, the Basic Documents, the
Owner Trust Estate, the administration of the Owner Trust Estate or the action
or inaction of the Owner Trustee, the Certificate Registrar and the Certificate
Paying Agent, solely in its capacity as Certificate Paying Agent, hereunder,
provided, that:
(i) the
Depositor shall not be liable for or required to indemnify an Indemnified Party
from and against Expenses arising or resulting from such Indemnified Party’s
willful misconduct, gross negligence, grossly negligent failure to act or bad
faith or, with respect to the Owner Trustee, as a result of any inaccuracy
of a
representation or warranty of the Owner Trustee contained in Section 6.03
expressly made by the Owner Trustee;
(ii) with
respect to any such claim, the Indemnified Party shall have given the Depositor
written notice thereof promptly after the Indemnified Party shall have actual
knowledge thereof,
(iii) while
maintaining control over its own defense, the Depositor shall consult with
the
Indemnified Party in preparing such defense; and
(iv) notwithstanding
anything in this Agreement to the contrary, the Depositor shall not be liable
for settlement of any claim by an Indemnified Party entered into without the
prior consent of the Depositor which consent shall not be unreasonably
withheld.
The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee, the Certificate Registrar or the Certificate
Paying Agent or the termination of this Trust Agreement. In the event of any
claim, action or proceeding for which indemnity will be sought pursuant to
this
Section 7.02, the Owner Trustee's, the Certificate Registrar's or the
Certificate Paying Agent's choice of legal counsel, if other than the legal
counsel retained by the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent in connection with the execution and delivery of this
Trust Agreement, shall be subject to the approval of the Depositor, which
approval shall not be unreasonably withheld. In addition, upon written notice
to
the Owner Trustee, the Certificate Registrar or the Certificate Paying Agent
and
with the consent of the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent which consent shall not be unreasonably withheld,
the
Depositor has the right to assume the defense of any claim, action or proceeding
against the Owner Trustee, the Certificate Registrar or the Certificate Paying
Agent.
ARTICLE
VIII
TERMINATION
OF TRUST AGREEMENT
Section
8.01 Termination
of Trust Agreement.
(a)
Subject
to Section 8.01(e), hereof, this Trust Agreement (other than Article VII) and
the Trust shall terminate and be of no further force or effect upon the earliest
of (i) the final distribution of all moneys or other property or proceeds of
the
Owner Trust Estate in accordance with the terms of the Indenture and this Trust
Agreement, and (ii) the distribution of all of the assets of the Owner Trust
Estate, in accordance with written instructions provided to the Owner Trustee
by
the Certificateholder, following the optional redemption of the Notes by the
Certificateholder pursuant to Section 8.07 of the Indenture.
(b) Except
as
provided in Section 8.01(a), neither the Depositor nor any Certificateholder
shall be entitled to revoke or terminate the Trust.
(c) Notwithstanding
anything to the contrary herein, the Trust shall not terminate upon the
occurrence of a TMP Trigger Event or the REMIC Conversion.
(d) Notice
of
any termination of the Trust, specifying the Payment Date upon which the
Certificateholder shall surrender its Certificate 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 Certificateholder mailed within
five Business Days of receipt of notice of the final payment on the Notes from
the Certificateholder stating (i) the Payment Date upon or with respect to
which
final payment of the Certificate shall be made upon presentation and surrender
of the Certificate at the office of the Certificate Paying Agent therein
designated, (ii) the amount of any such final payment, to the extent the
Certificate Paying Agent is informed of such 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 Certificate at the office
of
the Certificate Payment Agent therein specified. The Certificate Paying Agent
shall give such notice to the Owner Trustee and the Certificate Registrar at
the
time such notice is given to the Certificateholder. Upon presentation and
surrender of the Certificate, the Certificate Paying Agent shall cause to be
distributed to the Certificateholder amounts distributable on such Payment
Date
pursuant to Section 5.01.
In
the
event that the Certificateholder shall not surrender its Certificate for
cancellation within six months after the date specified in the above mentioned
written notice, the Certificate Paying Agent shall give a second written notice
to the Certificateholder to surrender its Certificate for cancellation and
receive the final distribution with respect thereto. Subject to applicable
laws
with respect to escheat of funds, if within one year following the Payment
Date
on which final payment of the Certificate was to have been made pursuant to
Section 3.03 of the Indenture, the Certificate shall not have been surrendered
for cancellation, the Certificate Paying Agent may take appropriate steps,
or
may appoint an agent to take appropriate steps, to contact the Certificateholder
concerning surrender of its Certificate, and the cost thereof shall be paid
out
of the funds and other assets that shall remain subject to this Trust Agreement.
Any funds in the Certificate Distribution Account after exhaustion of such
remedies shall be distributed by the Certificate Paying Agent to the
Depositor.
(e) Upon
the
winding up of the Trust and its termination, the Owner Trustee shall cause
the
Certificate of Trust to be cancelled by filing a certificate of cancellation
with the Secretary of State of the State of Delaware in accordance with the
provisions of Section 3810(c) of the Statutory Trust Statute.
(f) Notwithstanding
anything to the contrary herein, the Trust shall not be revoked or terminated
until all amounts owing to the Noteholders to the extent payable from the Trust
Estate or proceeds thereof have been paid in full and that all obligations
under
the Indenture have been discharged. The bankruptcy, liquidation, dissolution,
death or incapacity of the Certificateholder shall not (x) operate to terminate
this Trust Agreement or the Trust or (y) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of
the
Trust or the Trust Estate or (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
ARTICLE
IX
SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section
9.01 Eligibility
Requirements for Owner Trustee.
The
Owner Trustee shall at all times be a corporation satisfying the provisions
of
Section 3807(a) of the Statutory Trust Statute; a corporation or association
organized and doing business under the laws of a state of the United States;
authorized to exercise corporate trust powers; having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authorities; and having (or having a parent that has) a rating
of at least Baa3 by Moody's and/or at least BBB- by Standard and Poor’s or is
otherwise acceptable to the Rating Agencies. If such corporation shall publish
reports of condition at least annually pursuant to law or to the requirements
of
the aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. In case at any time the Owner Trustee shall cease to
be
eligible in accordance with the provisions of this Section 9.01, the Owner
Trustee shall resign immediately in the manner and with the effect specified
in
Section 9.02.
Section
9.02 Replacement
of Owner Trustee.
The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving 30 days prior written notice thereof to the Depositor. Upon
receiving such notice of resignation, the Depositor shall promptly appoint
a
successor Owner Trustee, by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and to the
successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of
such
notice of resignation, the resigning Owner Trustee may petition any court of
competent jurisdiction for the appointment of a successor Owner
Trustee.
If
at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 9.01 and shall fail to resign after written request
therefor by the Depositor, or if at any time the Owner Trustee shall be legally
unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of
the
Owner Trustee or of its property shall be appointed, or any public officer
shall
take charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
may remove the Owner Trustee.
Any
resignation or removal of the Owner Trustee and appointment of a successor
Owner
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 9.03 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Depositor shall provide notice of such resignation
or removal of the Owner Trustee to each of the Rating Agencies.
Section
9.03 Successor
Owner Trustee.
Any
successor Owner Trustee appointed pursuant to Section 9.02 shall execute,
acknowledge and deliver to the Indenture Trustee and to its predecessor Owner
Trustee an instrument accepting such appointment under this Trust Agreement,
and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective, and such successor Owner Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Trust Agreement, with
like
effect as if originally named as Owner Trustee. The predecessor Owner Trustee
shall upon payment of its fees and expenses deliver to the successor Owner
Trustee all documents and statements and monies held by it under this Trust
Agreement; and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully
and
certainly vesting and confirming in the successor Owner Trustee all such rights,
powers, duties and obligations.
No
successor Owner Trustee shall accept appointment as provided in this Section
9.03 unless at the time of such acceptance such successor Owner Trustee shall
be
eligible pursuant to Section 9.01.
Upon
acceptance of appointment by a successor Owner Trustee pursuant to this Section
9.03, the Owner Trustee shall mail notice thereof to Certificateholder, the
Indenture Trustee, the Noteholders, the Securities Administrator and the Rating
Agencies.
Section
9.04 Merger
or Consolidation of Owner Trustee.
Any
Person into which the Owner Trustee may be merged or converted or with which
it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of
any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger
or
consolidation to the Depositor, the Indenture Trustee, the Securities
Administrator and the Rating Agencies.
Section
9.05 Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Trust Agreement, at any time,
for
the purpose of meeting any legal requirements of any jurisdiction in which
any
part of the Owner Trust Estate may at the time be located, the Owner Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons to act as co-trustee, jointly with the Owner Trustee, or
as
separate trustee or trustees, of all or any part of the Owner Trust Estate,
and
to vest in such Person, in such capacity, such title to the Trust or any part
thereof and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Owner Trustee may consider
necessary or desirable. No co-trustee or separate trustee under this Trust
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 9.01 and no notice of the appointment of
any
co-trustee or separate trustee shall be required pursuant to Section
9.03.
Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a) All
rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Owner Trustee joining in such act), except to the extent that under any law
of
any jurisdiction in which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including the
holding of title to the Owner Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Owner Trustee;
(b) No
trustee under this Trust Agreement shall be personally liable by reason of
any
act or omission of any other trustee under this Trust Agreement;
and
(c) The
Owner
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee.
Any
notice, request or other writing given to the Owner Trustee shall be deemed
to
have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Trust Agreement and the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Trust Agreement, specifically including every provision of this Trust
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with
the
Owner Trustee.
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee as
its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Trust
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a
new
or successor co-trustee or separate trustee.
ARTICLE
X
MISCELLANEOUS
Section
10.01 Amendments.
(a)
This
Trust Agreement may be amended from time to time by the parties hereto as
specified in this Section, provided that any amendment, except as provided
in
subparagraph (e) below, be accompanied by an Opinion of Counsel addressed to
the
Owner Trustee, the Certificate Registrar and the Certificate Paying Agent and
obtained by the Depositor to the effect that such amendment (i) complies with
the provisions of this Section and (ii) would not cause the Trust to be subject
to an entity level tax for federal income tax purposes.
(b) If
the
purpose of the amendment (as detailed therein) is to correct any mistake,
eliminate any inconsistency, cure any ambiguity or deal with any matter not
covered (i.e. to give effect to the intent of the parties and, if applicable,
to
the expectations of the Holders), it shall not be necessary to obtain the
consent of any Holders, but the Owner Trustee, the Certificate Registrar and
the
Certificate Paying Agent shall be furnished with (A) a letter from the Rating
Agencies that the amendment will not result in the downgrading, qualification
or
withdrawal of the rating then assigned to any Note or (B) an Opinion of Counsel
obtained by the Depositor to the effect that such action will not adversely
affect in any material respect the interests of any Holders.
(c) If
the
purpose of the amendment is to prevent the imposition of any federal or state
taxes at any time that any Security is outstanding, it shall not be necessary
to
obtain the consent of the Holder, but the Owner Trustee, the Certificate
Registrar and the Certificate Paying Agent shall be furnished with an Opinion
of
Counsel obtained by the Depositor that such amendment is necessary or helpful
to
prevent the imposition of such taxes and is not materially adverse to the
Holder.
(d) If
the
purpose of the amendment is to add or eliminate or change any provision of
the
Trust Agreement other than as contemplated in (b) and (c) above, the amendment
shall require (A) an Opinion of Counsel obtained by the Depositor to the effect
that such action will not adversely affect in any material respect the interests
of any Noteholders or the Certificateholder, and (B)
either (a) a letter from the Rating Agencies that the amendment will not result
in the downgrading or withdrawal of the rating then assigned to any Note or
(b)
the consent of the Holder of the Certificate and the consent of Noteholders
representing at least 51% of the Note Principal Balance of each Class of Notes;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments received that are required to be
distributed on the Certificate without the consent of the Certificateholder,
or
(ii) reduce the aforesaid percentage of the Certificate the Holder of which
is
required to consent to any such amendment.
(e) If
the
purpose of the amendment is to provide for the holding of the Certificate in
book-entry form, it shall require the consent of Holder of the Certificate
then
outstanding; provided, that the Opinion of Counsel specified in subparagraph
(a)
above shall not be required.
(f) If
the
purpose of the amendment is to provide for the issuance of additional
certificates representing an interest in the Trust, it shall not be necessary
to
obtain the consent of any Noteholders or the Certificateholder, but the Owner
Trustee, the Certificate Registrar and the Certificate Paying Agent shall be
furnished with (A) an Opinion of Counsel obtained by the Depositor to the effect
that such action will not adversely affect in any material respect the interests
of any Noteholders or the Certificateholder and (B) a letter from the Rating
Agencies that the amendment will not result in the downgrading, qualification
or
withdrawal of the rating then assigned to any Notes.
(g) Promptly
after the execution of any such amendment or consent, the Depositor shall
furnish written notification of the substance of such amendment or consent
to
the Certificateholder, the Indenture Trustee and each of the Rating Agencies.
It
shall not be necessary for the consent of the Certificateholder or the Indenture
Trustee pursuant to this Section 10.01 to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of the Certificateholder provided for in this Trust Agreement
or
in any other Basic Document) and of evidencing the authorization of the
execution thereof by the Certificateholder shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(h) In
connection with the execution of any amendment to any agreement to which the
Trust is a party, other than this Trust Agreement, the Owner Trustee, the
Certificate Registrar and the Certificate Paying Agent shall be entitled to
receive and conclusively rely upon an Opinion of Counsel to the effect that
such
amendment is authorized or permitted by the documents subject to such amendment
and that all conditions precedent in the Basic Documents for the execution
and
delivery thereof by the Trust or the Owner Trustee, as the case may be, have
been satisfied.
(i) No
amendment or agreement affecting the rights or duties of the Certificate
Registrar or the Certificate Paying Agent may be entered into without the
consent of the affected party.
(j) If
the
purpose of the amendment is to add or eliminate or change any provision relating
to the springing REMIC function of this Trust Agreement. An amendment subject to
this Section 10.01(j) shall not require the consent of the Certificateholder,
provided, however, the Owner Trustee shall receive from the Certificateholder
written direction to enter such amendment based on this Section 10.01(j). The
Owner Trustee may rely on such direction in entering into the amendment and
is
under no duty or obligation to determine compliance with entering into the
amendment.
Promptly
after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of State
of
the State of Delaware.
Section
10.02 No
Legal Title to Owner Trust Estate.
The
Certificateholder shall not have legal title to any part of the Owner Trust
Estate solely by virtue of their status as a Certificateholder. The
Certificateholder shall be entitled to receive distributions with respect to
their undivided beneficial interest therein only in accordance with Articles
V
and VIII. No transfer, by operation of law or otherwise, of any right, title
or
interest of the Certificateholder to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Trust Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to
it of
legal title to any part of the Owner Trust Estate.
Section
10.03 Limitations
on Rights of Others.
Except
for Section 2.07, the provisions of this Trust Agreement are solely for the
benefit of the Owner Trustee, the Master Servicer, the Certificateholder and,
to
the extent expressly provided herein, the Noteholders, and nothing in this
Trust
Agreement (other than Section 2.07), whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy
or
claim in the Owner Trust Estate or under or in respect of this Trust Agreement
or any covenants, conditions or provisions contained herein.
Section
10.04 Notices.
(a)
Unless
otherwise expressly specified or permitted by the terms hereof, all notices
shall be in writing and shall be deemed given upon receipt, to the Owner Trustee
at: Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: Corporate Trust Administration; to the
Depositor at: American Home Mortgage Securities LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: General Counsel; to the Indenture Trustee
at its Corporate Trust Office; to the Securities Administrator, Certificate
Registrar and the Certificate Paying Agent to its Corporate Trust Office; to
Standard & Poor's at: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; to Moody's
at: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and to Fitch at: ▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇, or, as to each party, at such other address as shall be designated
by
such party in a written notice to each other party.
(b) Any
notice required or permitted to be given to a Certificateholder shall be given
by first-class mail, postage prepaid, at the address of such Holder as shown
in
the Certificate Register. Any notice so mailed within the time prescribed in
this Trust Agreement shall be conclusively presumed to have been duly given,
whether or not the Certificateholder receives such notice.
(c) A
copy of
any notice delivered to the Owner Trustee or the Trust shall also be delivered
to the Depositor.
Section
10.05 Severability.
Any
provision of this Trust Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Section
10.06 Separate
Counterparts.
This
Trust Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all
such
counterparts shall together constitute but one and the same
instrument.
Section
10.07 Successors
and Assigns.
All
representations, warranties, covenants and agreements contained herein shall
be
binding upon, and inure to the benefit of, each of the Depositor, the Owner
Trustee and its successors, the Certificateholder and its successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by the Certificateholder shall
bind the successors and assigns of such Certificateholder.
Section
10.08 No
Petition.
The
Owner Trustee, by entering into this Trust Agreement, and the Certificateholder,
by accepting a Certificate, 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 proceedings under any
United States federal or state bankruptcy or similar law in connection with
any
obligations to the Certificate, the Notes, this Trust Agreement or any of the
Basic Documents. This Section shall survive for one year following the
termination of this Trust Agreement.
Section
10.09 No
Recourse.
The
Certificateholder, by accepting a Certificate acknowledges that such
Certificateholder's Certificate represent beneficial interests in the Trust
only
and do not represent interests in or obligations of the Depositor, the Sponsor,
the Owner Trustee, the Indenture Trustee, the Certificate Registrar, the
Certificate Paying Agent or any Affiliate thereof and no recourse may be had
against such parties or their assets, except as may be expressly set forth
or
contemplated in this Trust Agreement, the Certificate or the Basic
Documents.
Section
10.10 Headings.
The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section
10.11 GOVERNING
LAW.
THIS
TRUST AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
Section
10.12 Integration.
This
Trust Agreement constitutes the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersedes all prior agreements
and
understandings pertaining thereto.
Section
10.13 Benefits
of Trust Agreement.
Nothing
in this Trust Agreement or in the, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Certificateholders, any benefit or any legal or equitable right, remedy or
claim
under this Trust Agreement.
Section
10.14 Separateness
Covenants.
The
Trust shall:
(a) maintain
the Trust’s books and records separate from any other person or
entity;
(b) maintain
the Trust’s bank accounts separate from any other person or entity;
(c) not
commingle the Trust’s assets with those of any other person or
entity;
(d) conduct
the Trust’s own business in its own name;
(e) other
than as contemplated by the Basic Documents and related documentation, pay
the
Trust’s own liabilities and expenses only out of its own funds;
(f) observe
all formalities required under the Delaware Trust Statute;
(g) enter
into transactions with Affiliates or the Depositor only if each such transaction
is intrinsically fair, commercially reasonable, and on the same terms as would
be available in the arm’s length transaction with a person or entity that is not
an Affiliate;
(h) not
guarantee or become obligated for the debts of any other entity or
person;
(i) not
hold
out the Trust’s credit as being available to satisfy the obligation of any other
person or entity;
(j) not
acquire the obligations or securities of the Trust’s Affiliates or the
Depositor;
(k) other
than as contemplated by the Basic Documents and related documentation,, not
make
any loans to any other person or entity or buy or hold evidence of indebtedness
issued by any other person or entity;
(l) other
than as contemplated by the Basic Documents and related documentation, not
pledge the Trust’s assets for the benefit of any other person or
entity;
(m) hold
the
Trust out as a separate entity and conduct any business only in its own
name;
(n) correct
any known misunderstanding regarding the Trust’s separate identity;
(o) not
identify the Trust as a division of any other person or entity;
(p) maintain
appropriate minutes or other records of appropriate actions and shall maintain
its office separate from the office of the Depositor, the Sponsor, the Servicer
and the Subservicer.
Section
10.15 Action
by Certificateholder or Owner Trustee With Respect to Bankruptcy.
The
Owner Trustee shall not have the power, except (i) upon the direction of the
Certificateholder and the delivery to the Owner Trustee of such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent, and to the extent otherwise
consistent with the Basic Documents, (a) institute any proceedings to declare
or
adjudicate the Trust a bankrupt or insolvent, (b) consent to the institution
of
bankruptcy or insolvency proceedings against the Trust, (c) file a petition
or
consent to a petition seeking reorganization or relief on behalf of the Trust
under any applicable federal or state law relating to bankruptcy, (d) consent
to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or
other similar official) of the Trust or a substantial part of the property
of
the Trust, (e) make any assignment for the benefit of the Trust’s creditors, (f)
cause the Trust to admit in writing its inability to pay its debts generally
as
they become due, or (g) take any action, or cause the Trust to take any action,
in furtherance of any of the foregoing (any of the above foregoing actions,
a
“Bankruptcy Action”). So long as the Indenture and the Insurance Agreement
remain in effect, no Certificateholder shall have the power to take, and shall
not take, any Bankruptcy Action with respect to the Trust or direct the Owner
Trustee to take any Bankruptcy Action with respect to the Trust.
Section
10.16 [Reserved].
Section
10.17 Restrictions
on Trust Activities.
The
Trust shall abide by the following restrictions:
(a) other
than as contemplated by the Basic Documents and related documentation, the
Trust
shall not incur any indebtedness;
(b) other
than as contemplated by the Basic Documents and related documentation, the
Trust
shall not engage in any dissolution, liquidation, consolidation, merger or
sale
of assets;
(c) the
Trust
shall not engage in any business activity in which it is not currently engaged
other than as contemplated by the Basic Documents and related
documentation;
(d) 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 Basic Documents and related
documentation; and
(e) other
than as contemplated by the Basic Documents and related documentation, the
Trust
shall not follow the directions or instructions of the Depositor.
Section
10.18 Obligations.
The
execution and delivery of this Trust Agreement by ▇▇▇▇▇ Fargo Bank, N.A. is
not
in its individual capacity but solely in its capacity as Securities
Administrator. The Securities Administrator shall have no duties or obligations
under this Agreement except for those duties expressly set forth in this
Agreement as duties of the Securities Administrator, and no implied duties
shall
be read into this Agreement on the part of Securities Administrator. In entering
into this Agreement and with respect to all matters arising under this
Agreement, the Securities Administrator shall enjoy and be protected by all
of
the rights, powers, benefits, immunities, indemnities and other protections
granted to it under Article VI of the Indenture.
ARTICLE
XI
REMIC
CONVERSION
Section
11.01 Discharge
of Indenture and Transfer of Mortgage Loans.
It is
the intention of all parties to this Indenture that upon the occurrence of
a
REMIC Conversion, that:
(i) There
shall be a mandatory surrender to the Issuing Entity by the Holders thereof
of
the Offered Notes and the Non-Offered Notes, in exchange for (A) the REMIC
Notes, which shall be issued pursuant to Exhibit K hereto and (B) the delivery
to the Holders of the Non-Offered Notes of the REMIC Privately Offered
Certificates, which shall be issued pursuant to Exhibit K hereto;
and
(ii) All
of
the Mortgage Loans shall be transferred by the Issuing Entity to the trustee
named under a pooling and servicing agreement, which shall be issued pursuant
to
Exhibit K hereto in exchange for the REMIC Certificates;
Section
11.02 Conditions
Precedent to a REMIC Conversion.
Prior
to a REMIC Conversion:
(i) American
Home Mortgage Investment Corp. shall have purchased all the REO properties
in
the Trust Estate at their fair market value;
(ii) the
party
who caused the TMP Trigger Event shall have contributed to the Trust Estate
an
amount equal to any allocation of Realized Losses on the Offered Notes, if
any,
resulting from the sale of the REO properties described in clause (i) above;
and
(iii) the
entity that delivered notice causing the REMIC Conversion to be undertaken
shall
have made provision for payment satisfactory to the Owner Trustee, the Indenture
Trustee, the Securities Administrator, the Paying Agent and the Note Registrar
and others for any initial or ongoing additional administrative expenses
associated with the REMIC elections.
IN
WITNESS WHEREOF, the Depositor, the Securities Administrator and the Owner
Trustee have caused their names to be signed hereto by their respective officers
thereunto duly authorized, all as of the day and year first above
written.
|
AMERICAN
HOME MORTGAGE SECURITIES LLC
as
Depositor
|
|
|
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇ |
|
Name:
|
▇▇▇▇ ▇. ▇▇▇▇ |
|
Title:
|
Executive Vice President |
|
WILMINGTON
TRUST COMPANY
as
Owner Trustee
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By:
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/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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Name:
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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Title:
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Vice President |
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▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇ |
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Name:
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▇▇▇▇▇▇ ▇▇▇▇ |
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Title:
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Vice President |
EXHIBIT
A
FORM
OF
CERTIFICATE
[FACE]
THIS
CERTIFICATE IS SUBORDINATE TO THE NOTES AS DESCRIBED IN THE
INDENTURE.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR
SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS TO THE
TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER U.S.
LAW.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR
HAS
RECEIVED PROOF OF THE TRANSFEREE'S STATUS AS A REIT OR AS A QUALIFIED REIT
SUBSIDIARY, WITHIN THE MEANING OF SECTION 856(a) OR SECTION 856(i) OF THE CODE,
RESPECTIVELY AND THE INTENDED TRANSFEREE CERTIFIES IN THE FORM OF EXHIBIT H
TO
THE TRUST AGREEMENT TO THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR, AND THE
INDENTURE TRUSTEE THAT, IN CONNECTION WITH THE TRANSFER, IT WILL ACQUIRE BOTH
THE TRUST CERTIFICATE AND A 100% PERCENTAGE INTEREST IN EACH CLASS OF PRIVATELY
OFFERED NOTES THEN OUTSTANDING, THUS BECOMING A SINGLE OWNER UPON COMPLETION
OF
THE TRANSFER. NOTWITHSTANDING THE FOREGOING, THIS CERTIFICATE MAY BE PLEDGED
TO
SECURE INDEBTEDNESS AND MAY BE THE SUBJECT OF REPURCHASE AGREEMENTS TREATED
AS
SECURED INDEBTEDNESS FOR FEDERAL INCOME TAX PURPOSES. UPON A DEFAULT UNDER
ANY
SUCH INDEBTEDNESS, THE LENDER OR REPURCHASE AGREEMENT COUNTERPARTY, AS
APPLICABLE, MAY DELIVER TO THE NOTE REGISTRAR, THE SECURITIES ADMINISTRATOR,
THE
OWNER TRUSTEE AND THE INDENTURE TRUSTEE A CERTIFICATE CERTIFYING THAT A DEFAULT
HAS OCCURRED AND THAT A REMIC CONVERSION SHOULD BE UNDERTAKEN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.05 OF THE TRUST AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR
SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER FROM THE TRANSFEREE
OF
THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT
PLAN OR OTHER PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE “CODE”), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OR (ii) IF THIS CERTIFICATE IS PRESENTED
FOR
REGISTRATION IN THE NAME OF A PLAN SUBJECT TO ERISA, OR SECTION 4975 OF THE
CODE
(OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A TRUSTEE OF ANY
SUCH PLAN, OR ANY OTHER PERSON WHO IS USING THE ASSETS OF ANY SUCH PLAN TO
EFFECT SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE
OF THE CERTIFICATE, OPERATION OF TRUST AND MANAGEMENT OF TRUST ASSETS ARE
PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN ANY
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE AND WILL NOT
SUBJECT THE DEPOSITOR, THE SPONSOR, THE OWNER TRUSTEE, THE CERTIFICATE
REGISTRAR, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER, OR THE SERVICER
TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA
OR
SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE TRUST
AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE DEPOSITOR,
THE SPONSOR, THE OWNER TRUSTEE, THE INDENTURE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, OR THE
SERVICER.
THIS
CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SPONSOR, THE
CERTIFICATE REGISTRAR, THE CERTIFICATE PAYING AGENT, THE DEPOSITOR, THE
SECURITIES ADMINISTRATOR, THE MASTER SERVICER, THE SERVICER, THE INDENTURE
TRUSTEE, OR THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT
AS
EXPRESSLY PROVIDED IN THE TRUST AGREEMENT OR THE BASIC
DOCUMENTS.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE PROPOSED TRANSFEREE OF
SUCH CERTIFICATE (1) PROVIDES TO THE SECURITIES ADMINISTRATOR THE
APPROPRIATE TAX CERTIFICATION FORM THAT WOULD ELIMINATE ANY WITHHOLDING OR
DEDUCTION FOR TAXES FROM AMOUNTS PAYABLE BY THE SWAP PROVIDER, PURSUANT TO
THE
SWAP AGREEMENT (I.E., IRS FORM W-9 OR IRS FORM W-8BEN, W-8IMY, W-8EXP OR W-8ECI,
AS APPLICABLE (OR ANY SUCCESSOR FORM THERETO), TOGETHER WITH ANY APPLICABLE
ATTACHMENTS) AND (2) AGREES TO UPDATE SUCH FORM (A) UPON EXPIRATION OF ANY
SUCH
FORM, (B) AS REQUIRED UNDER THEN APPLICABLE U.S. TREASURY REGULATIONS AND (C)
PROMPTLY UPON LEARNING THAT SUCH FORM HAS BECOME OBSOLETE OR INCORRECT, EACH
AS
A CONDITION TO SUCH TRANSFER. UPON RECEIPT OF ANY TAX CERTIFICATION FORM
PURSUANT TO THESE TRANSFER RESTRICTIONS FROM A PROPOSED TRANSFEREE OF ANY TRUST
CERTIFICATE, THE SECURITIES ADMINISTRATOR SHALL FORWARD SUCH TAX
CERTIFICATION FORM TO THE SWAP PROVIDER. EACH HOLDER OF A TRUST CERTIFICATE
AND EACH TRANSFEREE THEREOF SHALL BE DEEMED TO HAVE CONSENTED TO
THE SECURITIES ADMINISTRATOR FORWARDING TO THE SWAP PROVIDER ANY TAX
CERTIFICATION FORM IT HAS PROVIDED AND UPDATED IN ACCORDANCE WITH THESE TRANSFER
RESTRICTIONS. ANY PURPORTED SALES OR TRANSFERS OF ANY TRUST CERTIFICATE TO
A
TRANSFEREE WHICH DOES NOT COMPLY WITH THESE REQUIREMENTS SHALL BE DEEMED NULL
AND VOID UNDER THE AGREEMENT.
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Certificate
No. ___________
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Certificate
Percentage Interest of this Certificate: %
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Cut-off
Date: December 1, 2006
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Date
of Amended and Restated Trust Agreement:
December
28, 2006
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First
Payment Date:
December
26, 2006
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Evidencing
a fractional undivided equity interest in the Owner Trust Estate, the property
of which consists primarily of the Mortgage Loans in American Home Mortgage
Investment Trust 2006-3 (the “Trust”), a Delaware statutory trust formed by
American Home Mortgage Securities LLC, as depositor, pursuant to the Trust
Agreement referred to below.
This
certifies that ______________ is the registered owner of the Percentage Interest
represented hereby.
The
Trust
was created pursuant to a Short Form Trust Agreement, dated as of September
22,
2006, between the Depositor and Wilmington Trust Company, as owner trustee
(the
“Owner Trustee”, which term includes any successor entity under the Trust
Agreement) (the “Short Form Trust Agreement”) as amended and restated by the
Amended and Restated Trust Agreement dated as of December 28, 2006 (as amended
and supplemented from time to time, together with the Short Form Trust
Agreement, the “Trust Agreement”) among the Depositor, the Owner Trustee,
Deutsche Bank National Trust Company, as indenture trustee and ▇▇▇▇▇ Fargo
Bank,
N.A. as Securities Administrator, a summary of certain of the pertinent
provisions of which is set forth hereinafter. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Trust Agreement,
to which Trust Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This
Certificate is one of a duly authorized issue of the Trust Certificate, Series
2006-3 (herein called the “Certificate”) issued under the Trust Agreement to
which reference is hereby made for a statement of the respective rights
thereunder of the Depositor, the Owner Trustee and the Holder of the Certificate
and the terms upon which the Certificate is executed and delivered. All terms
used in this Certificate which are defined in the Trust Agreement shall have
the
meanings assigned to them in the Trust Agreement. The Owner Trust Estate
consists of the Mortgage Loans in the American Home Mortgage Investment Trust
2006-3. The rights of the Holder of the Certificate are subordinated to the
rights of the Holders of the Notes, as set forth in the Indenture.
There
will be distributed on the 25th day of each month or, if such 25th day is not
a
Business Day, the next Business Day (each, a “Payment Date”), commencing on
December 26, 2006, to the Person in whose name this Certificate is registered
at
the close of business on the last Business Day of the month immediately
preceding such Payment Date (the “Record Date”), such Certificateholder's
Percentage Interest in the amount to be distributed to the Certificateholder
on
such Payment Date.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Certificate Distribution Account
that
have been released from the Lien of the Indenture for payment hereunder and
that
neither the Owner Trustee in its individual capacity nor the Depositor is
personally liable to the Certificateholder for any amount payable under this
Certificate or the Trust Agreement or, except as expressly provided in the
Trust
Agreement, subject to any liability under the Trust Agreement.
The
Holder of this Certificate acknowledges and agrees that its rights to receive
distributions in respect of this Certificate are subordinated to the rights
of
the Noteholders as described in the Indenture, dated as of December 28, 2006,
among the Trust, ▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator (the
“Securities Adminstrator”) and Deutsche Bank National Trust Company, as
Indenture Trustee (the “Indenture”).
The
Depositor and the Certificateholder, by acceptance of the Certificate, agree
to
treat, and to take no action inconsistent with the treatment of, the Certificate
for federal, state and local income tax purposes as an equity interest in the
Trust.
The
Certificateholder, by its acceptance of the Certificate, covenants and agrees
that such Certificateholder will not at any time institute against the
Depositor, or join in any institution against the Depositor or the Trust of,
any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificate,
the
Notes, the Trust Agreement or any of the Basic Documents.
Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified in such
notice.
Distributions
on this Certificate will be made as provided in the Trust Agreement by the
Certificate Paying Agent by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon. Except
as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Certificate Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose by the Trust, as
provided in Section 3.09 of the Trust Agreement.
The
Holder of the Trust Certificate, or if there is no single Holder, the Majority
Certificateholder shall have the option to purchase the assets of the Trust
related to Loan Group I and thereby redeem the Class I-A and Class I-M Notes
on
or after the Payment Date on which the Stated Principal Balance of the related
Mortgage Loans, and properties acquired in respect thereof has been reduced
to
less than 20% of the sum of the Group I Cut-off Date Balance. The Holder of
the
Trust Certificate, or if there is no single Holder, the Majority
Certificateholder shall have the option to purchase the assets of the Trust
related to Loan Group II and thereby redeem the Class II-A and Class II-M Notes
on or after the Payment Date on which the Stated Principal Balance of the
related Mortgage Loans, and properties acquired in respect thereof has been
reduced to less than 20% of the sum of the Group II Cut-off Date Balance. The
Holder of the Trust Certificate, or if there is no single Holder, the Majority
Certificateholder shall have the option to purchase the assets of the Trust
related to Loan Group III and thereby redeem the Class III-A and Class III-M
Notes on or after the Payment Date on which the Stated Principal Balance of
the
related Mortgage Loans, and properties acquired in respect thereof has been
reduced to less than 20% of the sum of the Group III Cut-off Date Balance.
The
Holder of the Trust Certificate, or if there is no single Holder, the Majority
Certificateholder shall have the option to purchase the assets of the Trust
related to Loan Group IV and thereby redeem the Class IV-A and Class IV-M Notes
on or after the Payment Date on which the Stated Principal Balance of the
related Mortgage Loans, and properties acquired in respect thereof has been
reduced to less than 20% of the sum of the Group IV Cut-off Date
Balance.
No
transfer, sale, pledge or other disposition of a Certificate shall be made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event
of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) (a) an investment
letter in substantially the form attached to the Trust Agreement as Exhibit
C
(or in such form and substance reasonably satisfactory to the Certificate
Registrar, and the Depositor) which investment letter shall not be an expense
of
the Trust, the Owner Trustee, the Indenture Trustee, the Securities
Administrator, the Certificate Registrar, the Master Servicer, the Servicer,
the
Sponsor or the Depositor and which investment letter states that, among other
things, such transferee (1) is a “qualified institutional buyer” as defined
under Rule 144A, acting for its own account or the accounts of other “qualified
institutional buyers” as defined under Rule 144A, and (2) is aware that the
proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act of 1933, as amended, provided by Rule
144A
or (ii) (a) a written Opinion of Counsel acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor that such transfer
may be made pursuant to an exemption, describing the applicable exemption and
the basis therefor, from said Act and laws or is being made pursuant to said
Act
and laws, which Opinion of Counsel shall not be an expense of the Trust, the
Owner Trustee, the Indenture Trustee, the Securities Administrator, the
Certificate Registrar, the Master Servicer, the Servicer, the Sponsor or the
Depositor and (b) either (1) the transferee executes a representation letter,
substantially in the form of Exhibit E to the Trust Agreement, and the
transferor executes a representation letter, substantially in the form of
Exhibit F to the Trust Agreement, each acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor certifying the
facts
surrounding such transfer, which representation letters shall not be an expense
of the Trust, the Owner Trustee, the Indenture Trustee, the Securities
Administrator, the Certificate Registrar, the the Master Servicer, the Servicer,
the Sponsor or the Depositor or (2) an Opinion of Counsel has been rendered
by
nationally recognized tax counsel stating that such Notes will be treated as
debt for federal income tax purposes and (B) the Certificate of Non-Foreign
Status (in substantially the form attached to the Trust Agreement as Exhibit
D)
acceptable to and in form and substance reasonably satisfactory to the
Certificate Registrar and the Depositor, which certificate shall not be an
expense of the Trust, the Owner Trustee, the Indenture Trustee, the Securities
Administrator, the Certificate Registrar, the Master Servicer, the Servicer,
the
Sponsor or the Depositor. The Holder of a Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trust, the Owner
Trustee, the Indenture Trustee, the Certificate Paying Agent, the Certificate
Registrar, the Master Servicer, the Servicer and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Prior
to
a REMIC conversion no transfer, sale, pledge or other disposition of the
Certificate or interest herein shall be made unless the intended transferee
certifies in the form of Exhibit H hereto to the Owner Trustee, the Certificate
Registrar, and the Indenture Trustee that, in connection with the transfer,
it
will acquire both the Trust Certificate and a 100% Percentage Interest in each
Class of Privately Offered Notes then Outstanding, thus becoming a Single Owner
upon completion of the transfer and the Certificate Registrar has received
proof
of the Transferee’s status as a REIT or as a qualified REIT subsidiary, within
the meaning of Section 856(a) or Section 856(i) of the Code, respectively.
Notwithstanding the foregoing, a Certificate may be pledged to secure
indebtedness and may be the subject of repurchase agreements treated as secured
indebtedness for federal income tax purposes. Upon a default under any such
indebtedness, the lender or repurchase agreement counterparty, as applicable
may
deliver to the Certificate Registrar, the Securities Administrator, the Owner
Trustee and the Indenture Trustee a certificate substantially in the form
attached hereto as Exhibit I certifying that a default has occurred and that
a
REMIC Conversion should be undertaken. Notwithstanding the foregoing, the
provisions of this paragraph shall not apply to the initial transfer of the
Certificate to the Depositor or any Affiliate thereof or to the transfer to
the
Initial Single Owner.
No
transfer of the Certificate or any interest therein shall be made to any Person
unless the Depositor, the Owner Trustee, the Indenture Trustee, the Certificate
Registrar, the Master Servicer, the Servicer and the Sponsor are provided with
an Opinion of Counsel which establishes to the satisfaction of the Certificate
Registrar that the purchase of the Certificate is permissible under applicable
law, will not constitute or result in any prohibited transaction under ERISA
or
Section 4975 of the Code and will not subject the Depositor, the Owner Trustee,
the Indenture Trustee, the Securities Administrator, the Certificate Registrar,
the Master Servicer, the Servicer or the Sponsor to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in the Trust Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Owner Trustee, the Indenture
Trustee, the Securities Administrator, the Certificate Registrar, the Master
Servicer, the Servicer or the Sponsor. In lieu of such Opinion of Counsel,
a
Person may provide a certification in the form of Exhibit G to the Certificate
Registrar, the Depositor and the Owner Trustee to the Agreement, which the
Depositor, the Owner Trustee, the Indenture Trustee, the Securities
Administrator, the Certificate Registrar, the Master Servicer, the Servicer
and
the Sponsor may rely upon without further inquiry or investigation. Neither
an
Opinion of Counsel nor a certification will be required in connection with
the
initial transfer of any such Certificate by the Depositor to an affiliate of
the
Depositor (in which case, the Depositor or any affiliate thereof shall have
deemed to have represented that such affiliate is not a Plan or a Person
investing Plan Assets of any Plan) and the Owner Trustee and the Certificate
Registrar shall be entitled to conclusively rely upon a representation (which,
upon the request of the Owner Trustee or the Certificate Registrar, shall be
a
written representation) from the Depositor of the status of such transferee
as
an affiliate of the Depositor.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual
signature, this Certificate shall not entitle the Holder hereof to any benefit
under the Trust Agreement or be valid for any purpose.
THIS
CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
IN
WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly
executed.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity
but
solely as Owner Trustee
Dated:
December ___, 2006
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By:
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Authorized
Signatory
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CERTIFICATE
OF AUTHENTICATION
This
is
the Certificate referred to in the within mentioned Agreement.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity
but
solely as Owner Trustee
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By:
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Authorized
Signatory
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or
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,
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as
Authenticating Agent of the Trust
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By:
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Authorized
Signatory
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[REVERSE
OF CERTIFICATE]
The
Certificate does not represent an obligation of, or an interest in, the
Depositor, the Sponsor, the Master Servicer, the Servicer, the Indenture
Trustee, the Securities Administrator, the Certificate Paying Agent, the
Certificate Registrar, the Owner Trustee or any Affiliates of any of them and
no
recourse may be had against such parties or their assets, except as expressly
set forth or contemplated herein or in the Trust Agreement or the Basic
Documents. In addition, this Certificate is not guaranteed by any governmental
agency or instrumentality and is limited in right of payment to certain
collections and recoveries with respect to the Mortgage Loans, all as more
specifically set forth herein and in the Trust Agreement. A copy of the Trust
Agreement may be examined by any Certificateholder upon written request during
normal business hours at the principal office of the Depositor and at such
other
places, if any, designated by the Depositor.
The
Trust
Agreement permits the amendment thereof as specified below, provided that any
amendment be accompanied by an Opinion of Counsel to the Owner Trustee to the
effect that such amendment complies with the provisions of the Trust Agreement
and, if AHM SPV III LLC was not the Majority Certificateholder, would not cause
the Trust to be subject to an entity level tax for federal income tax purposes.
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 the Holder, but the Owner Trustee
shall be furnished with a letter from the Rating Agencies that the amendment
will not result in the downgrading, qualification or withdrawal of the rating
then assigned to any Note. If the purpose of the amendment is to prevent the
imposition of any federal or state taxes at any time that any Security is
outstanding, it shall not be necessary to obtain the consent of the Holder,
but
the Owner Trustee shall be furnished with an Opinion of Counsel that such
amendment is necessary or helpful to prevent the imposition of such taxes and
is
not materially adverse to any Holder. If the purpose of the amendment is to
add
or eliminate or change any provision of the Trust Agreement, other than as
specified in the preceding two sentences, the amendment shall require either
the
amendment shall require (a) an Opinion of Counsel obtained by the Depositor
to
the effect that such action will not adversely affect in any material respect
the interests of any Noteholders or the Certificateholder and (b) either (i)
a
letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any Note or (ii) the
consent of the Holder of the Certificate and the consent of Noteholders
representing at least 51% of the Note Principal Balance of each Class of Notes;
provided,
however,
that no
such amendment shall (x) reduce in any manner the amount of, or delay the timing
of, payments received that are required to be distributed on any Certificate
without the consent of the related Certificateholder, or (y) reduce the
aforesaid percentage of the Certificate the Holder of which are required to
consent to any such amendment. If the purpose of the amendment is to provide
for
the holding of any of the Certificate in book-entry form, it shall require
the
consent of Holder of such Certificate then outstanding; provided, that the
Opinion of Counsel specified in first sentence of this paragraph shall not
be
required. If the purpose of the amendment is to provide for the issuance of
additional certificates representing an interest in the Trust, it shall not
be
necessary to obtain the consent of any Noteholders or the Certificateholder,
but
the Owner Trustee, the Certificate Registrar and the Certificate Paying Agent
shall be furnished with (a) an Opinion of Counsel obtained by the Depositor
to
the effect that such action will not adversely affect in any material respect
the interests of any Noteholders or the Certificateholder and (b) a letter
from
the Rating Agencies that the amendment will not result in the downgrading,
qualification or withdrawal of the rating then assigned to any
Notes.
As
provided in the Trust Agreement and subject to certain limitations therein
set
forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the
offices or agencies of the Certificate Registrar maintained by the Trust, as
provided in the Trust Agreement, accompanied by a written instrument of transfer
in form satisfactory to the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon
one
or more new Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee.
The
initial Certificate Registrar appointed under the Trust Agreement is Deutsche
Bank National Trust Company.
Except
as
provided in the Trust Agreement, the Certificate is issuable only in a minimum
Certificate Percentage Interest of 100%.
The
Owner
Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent
of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Owner Trustee, the Certificate Paying
Agent, the Certificate Registrar or any such agent shall be affected by any
notice to the contrary.
The
obligations and responsibilities created by the Trust Agreement and the Trust
created thereby shall terminate as and when provided in accordance with the
terms of the Trust Agreement.
ASSIGNMENT
FOR
VALUE
RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Please
print or type name and address, including postal zip code, of
assignee)
the
within Certificate, and all rights thereunder, hereby irrevocably constituting
and appointing
to
transfer said Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:
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*/
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Signature
Guaranteed
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*/
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*/
NOTICE:
The signature to this assignment must correspond with the name as it appears
upon the face of the within Certificate in every particular, without alteration,
enlargement or any change whatever. Such signature must be guaranteed by a
member firm of the New York Stock Exchange or a commercial bank or trust
company.
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for the information of the Certificate
Paying Agent:
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Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
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to
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,
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for
the account of
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,
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account
number___________, or, if mailed by check, to
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,
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||||
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Applicable
statements should be mailed to
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,
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.
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_______________________________________
Signature
of assignee or agent
(for
authorization of wire
transfer
only)
EXHIBIT
B
CERTIFICATE
OF TRUST OF
THIS
Certificate of Trust of American Home Mortgage Investment Trust 2006-3 (the
“Trust”), dated September 22, 2006, is being duly executed and filed by
Wilmington Trust Company, a Delaware banking corporation, as trustee, to form
a
statutory trust under the Delaware Statutory Trust Act (12 Del.
Code,
§
3801
et
seq.).
1.
Name.
The
name of the statutory trust formed hereby is American Home Mortgage Investment
Trust 2006-3.
2.
Delaware
Trustee.
The
name and business address of the trustee of the Trust in the State of Delaware
is Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
IN
WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has
executed
this Certificate of Trust as of the date first above written.
Wilmington
Trust Company,
not
in
its individual capacity but solely as owner trustee under a Trust Agreement
dated as of September 22, 2006
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By:
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Name:
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Title:
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EXHIBIT
C
[FORM
OF
RULE 144A INVESTMENT REPRESENTATION]
Description
of Rule 144A Securities, including numbers:
The
undersigned sponsor, as registered holder (the “Sponsor”), intends to transfer
the Rule 144A Securities described above to the undersigned buyer (the
“Buyer”).
1.
In
connection with such transfer and in accordance with the agreements pursuant
to
which the Rule 144A Securities were issued, the Sponsor hereby certifies the
following facts: Neither the Sponsor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or
other
disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner,
or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of
the
Rule 144A Securities under the Securities Act of 1933, as amended (the “1933
Act”), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Sponsor has not offered the Rule 144A Securities to any person
other than the Buyer or another “qualified institutional buyer” as defined in
Rule 144A under the ▇▇▇▇ ▇▇▇.
2.
The
Buyer warrants and represents to, and covenants with, the Owner Trustee, the
Certificate Registrar and the Depositor (as defined in the Amended and Restated
Trust Agreement (the “Agreement”), dated as of December 28, 2006, among American
Home Mortgage Securities LLC, as Depositor, Wilmington Trust Company, as Owner
Trustee, Deutsche Bank National Trust Company, as Indenture Trustee and ▇▇▇▇▇
Fargo Bank, N.A., as Securities Administrator) pursuant to Section 3.05 of
the
Agreement and Deutsche Bank National Trust Company, as indenture trustee, as
follows:
a.
The
Buyer understands that the Rule 144A Securities have not been registered under
the 1933 Act or the securities laws of any state.
b.
The
Buyer considers itself a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Rule 144A
Securities.
c.
The
Buyer has been furnished with all information regarding the Rule 144A Securities
that it has requested from the Sponsor, the Indenture Trustee, the Owner
Trustee, the Master Servicer and the Servicer.
d.
Neither the Buyer nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Rule 144A Securities, any interest
in
the Rule 144A Securities or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the Rule
144A
Securities, any interest in the Rule 144A Securities or any other similar
security from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action,
that would constitute a distribution of the Rule 144A Securities under the
1933
Act or that would render the disposition of the Rule 144A Securities a violation
of Section 5 of the 1933 Act or require registration pursuant thereto, nor
will
it act, nor has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
e.
The
Buyer is a “qualified institutional buyer” as that term is defined in Rule 144A
under the 1933 Act and has completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2. The Buyer is aware that
the
sale to it is being made in reliance on Rule 144A. The Buyer is acquiring the
Rule 144A Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the 1933 Act.
3.
The
Buyer warrants and represents to, and covenants with, the Sponsor, the Indenture
Trustee, Owner Trustee, the Certificate Registrar, the Master Servicer, the
Servicer, the Securities Administrator and the Depositor that either (1) the
Buyer is (A) not an employee benefit plan (within the meaning of Section 3(3)
of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), or a
plan (within the meaning of Section 4975(e)(1) of the Internal Revenue Code
of
1986 (“Code”)), which (in either case) is subject to ERISA or Section 4975 of
the Code (each, a “Plan”), and (B) is not directly or indirectly purchasing the
Rule 144A Securities on behalf of, as investment manager of, as named fiduciary
of, as trustee of, or with “plan assets” of a Plan, or (2) the Buyer understands
that registration of transfer of any Rule 144A Securities to any Plan, or to
any
Person acting on behalf of any Plan, will not be made unless such Plan delivers
an opinion of its counsel, addressed and satisfactory to the Certificate
Registrar and the Depositor, to the effect (A) that the purchase and holding
of
the Rule 144A Securities by, on behalf of or with “plan assets” of any Plan, (B)
operation of the Trust and (C) management of Trust assets are permissible under
applicable law, would not constitute or result in a prohibited transaction
under
ERISA or Section 4975 of the Code, and would not subject the Depositor, the
Owner Trustee, the Indenture Trustee, the Certificate Registrar, the Securities
Administrator, the Master Servicer, the Servicer or the Sponsor to any
obligation or liability (including liabilities under ERISA or Section 4975
of
the Code) in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar, the Indenture Trustee, the Securities Administrator,
the
Master Servicer, the Servicer or the Sponsor.
4.
This
document may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same document.
IN
WITNESS WHEREOF, each of the parties has executed this document as of the date
set forth below.
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Print
Name of Sponsor
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Print
Name of Buyer
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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Taxpayer
Identification:
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Taxpayer
Identification:
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No:
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No:
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Date:
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Date:
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ANNEX
1 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR
BUYERS OTHER THAN REGISTERED INVESTMENT COMPANIES]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1.
As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2.
In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933
(“Rule 144A”) because (i) the Buyer owned and/or invested on a discretionary
basis $______________1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Buyer satisfies the criteria in the
category marked below.
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___
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Corporation,
etc.
The Buyer is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue
Code.
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___
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Bank.
The Buyer (a) is a national bank or banking institution organized
under
the laws of any State, territory or the District of Columbia, the
business
of which is substantially confined to banking and is supervised by
the
State or territorial banking commission or similar official or is
a
foreign bank or equivalent institution, and (b) has an audited net
worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached
hereto.
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Savings
and Loan.
The Buyer (a) is a savings and loan association, building and loan
association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has
an
audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements.
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Broker-Dealer.
The Buyer is a dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
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Insurance
Company.
The Buyer is an insurance company whose primary and predominant business
activity is the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of a State
or
territory or the District of
Columbia.
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State
or Local Plan.
The Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its
political subdivisions, for the benefit of its
employees.
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ERISA
Plan.
The Buyer is an employee benefit plan within the meaning of Title
I of the
Employee Retirement Income Security Act of
1974.
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Investment
Adviser.
The Buyer is an investment adviser registered under the Investment
Advisers Act of 1940.
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SBIC.
The Buyer is a Small Business Investment Company licensed by the
U.S.
Small Business Administration under Section 301(c) or (d) of the
Small
Business Investment Act of 1958.
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Business
Development Company.
The Buyer is a business development company as defined in Section
202(a)(22) of the Investment Advisers Act of
1940.
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Trust
Fund.
The Buyer is a trust fund whose trustee is a bank or trust company
and
whose participants are exclusively (a) plans established and maintained
by
a State, its political subdivisions, or any agency or instrumentality
of
the State or its political subdivisions, for the benefit of its employees,
or (b) employee benefit plans within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, but is not a trust
fund
that includes as participants individual retirement accounts or H.R.
10
plans.
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3.
The
term “securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is
a dealer, (iii) bank deposit Notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject
to
a repurchase agreement and (vii) currency, interest rate and commodity
swaps.
4.
For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer's direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934.
5.
The
Buyer acknowledges that it is familiar with Rule 144A and understands that
the
sponsor to it and other parties related to the Certificate are relying and
will
continue to rely on the statements made herein because one or more sales to
the
Buyer may be in reliance on Rule 144A.
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Will
the Buyer be purchasing the Rule 144A
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Yes
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No
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Securities
only for the Buyer's own account?
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6.
If the
answer to the foregoing question is “no”, the Buyer agrees that, in connection
with any purchase of securities sold to the Buyer for the account of a third
party (including any separate account) in reliance on Rule 144A, the Buyer
will
only purchase for the account of a third party that at the time is a “qualified
institutional buyer” within the meaning of Rule 144A. In addition, the Buyer
agrees that the Buyer will not purchase securities for a third party unless
the
Buyer has obtained a current representation letter from such third party or
taken other appropriate steps contemplated by Rule 144A to conclude that such
third party independently meets the definition of “qualified institutional
buyer” set forth in Rule 144A.
7.
The
Buyer will notify each of the parties to which this certification is made of
any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of Rule 144A Securities will constitute a reaffirmation
of
this certification as of the date of such purchase.
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Print
Name of Buyer
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By:
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Name:
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Title:
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Date:
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1 Buyer
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or
invest on a discretionary basis at least $10,000,000 in
securities.
ANNEX
2 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR
BUYERS THAT ARE REGISTERED INVESTMENT COMPANIES]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1.
As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933 (“Rule 144A”) because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2.
In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, and (ii) as marked
below, the Buyer alone, or the Buyer's Family of Investment Companies, owned
at
least $100,000,000 in securities (other than the excluded securities referred
to
below) as of the end of the Buyer's most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the Buyer's Family
of
Investment Companies, the cost of such securities was used.
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The
Buyer owned $______________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
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The
Buyer is part of a Family of Investment Companies which owned in
the
aggregate $______________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
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3.
The
term “Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4.
The
term “securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer's Family of Investment Companies, (ii) bank
deposit Notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps.
5.
The
Buyer is familiar with Rule 144A and understands that each of the parties to
which this certification is made are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the Buyer's
own account.
6.
The
undersigned will notify each of the parties to which this certification is
made
of any changes in the information and conclusions herein. Until such notice,
the
Buyer's purchase of Rule 144A Securities will constitute a reaffirmation of
this
certification by the undersigned as of the date of such purchase.
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Print
Name of Buyer
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Name
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Title
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IF
AN ADVISER:
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Print
Name of Buyer
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Date:
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EXHIBIT
D
CERTIFICATE
OF NON-FOREIGN STATUS
This
Certificate of Non-Foreign Status (“certificate”) is delivered pursuant to
Section 3.03 of the Amended and Restated Trust Agreement, dated as of December
28, 2006 (the “Trust Agreement”), among American Home Mortgage Securities LLC,
as Depositor, Wilmington Trust Company, as Owner Trustee, Deutsche Bank National
Trust Company, as Indenture Trustee and ▇▇▇▇▇ Fargo Bank, N.A., as Securities
Administrator, in connection with the acquisition of, transfer to or possession
by the undersigned, whether as beneficial owner for U.S. federal income tax
purposes (the “Beneficial Owner”), or nominee on behalf of the Beneficial Owner
of the Certificate, Series 2006-3 (the “Certificate”). Capitalized terms used
but not defined in this certificate have the respective meanings given them
in
the Trust Agreement.
Each
holder must complete Part I, Part II (if the holder is a nominee), and in all
cases sign and otherwise complete Part III.
In
addition, each holder shall submit with the Certificate an IRS Form W-9 relating
to such holder.
To
confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the
Internal Revenue Code (relating to withholding tax on foreign partners) do
not
apply in respect of the Certificate held by the undersigned, the undersigned
hereby certifies:
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Part
I -
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Complete
Either A or B
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A.
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Individual
as Beneficial Owner
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1.
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I
am (The Beneficial Owner is ) not a non-resident alien for purposes
of
U.S. income taxation;
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2.
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My
(The Beneficial Owner's) name and home address
are:
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;
and
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3.
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My
(The Beneficial Owner's) U.S. taxpayer identification number (Social
Security Number) is
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B.
Corporate, Partnership or Other Entity as Beneficial Owner
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1.
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_________________
(Name of the Beneficial Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined
in the Code and Treasury
Regulations;
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2.
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The
Beneficial Owner's office address and place of incorporation (if
applicable) is
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;
and
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3.
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The
Beneficial Owner's U.S. employer identification number is
_________________.
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Part
II
- Nominees
If
the
undersigned is the nominee for the Beneficial Owner, the undersigned certifies
that this certificate has been made in reliance upon information contained
in:
an
IRS
Form W-9
a
form
such as this or substantially similar
provided
to the undersigned by an appropriate person and (i) the undersigned agrees
to
notify the Certificate Registrar at least thirty (30) days prior to the date
that the form relied upon becomes obsolete, and (ii) in connection with change
in Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Certificate Registrar promptly after such
change.
Part
III
- Declaration
The
undersigned, as the Beneficial Owner or a nominee thereof, agrees to notify
the
Certificate Registrar within sixty (60) days of the date that the Beneficial
Owner becomes a foreign person. The undersigned understands that this
certificate may be disclosed to the Internal Revenue Service by the Certificate
Registrar and any false statement contained therein could be punishable by
fines, imprisonment or both.
Under
penalties of perjury, I declare that I have examined this certificate and to
the
best of my knowledge and belief it is true, correct and complete and will
further declare that I will inform the Trust of any change in the information
provided above, and, if applicable, I further declare that I have the authority*
to sign this document.
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Name
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Title
(if applicable)
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Signature
and Date
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*Note:
If
signed pursuant to a power of attorney, the power of attorney must accompany
this certificate.
EXHIBIT
E
FORM
OF
INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Wilmington
Trust Company, as Owner Trustee
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Re:
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American
Home Mortgage Investment Trust 2006-3 Trust
Certificate,
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Series
2006-3 (the
“Certificate”)
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Ladies
and Gentlemen:
In
connection with our acquisition of the above-captioned Certificate, we certify
that (a) we understand that the Certificate is not being registered under the
Securities Act of 1933, as amended (the “Act”), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
“accredited investor,” as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificate, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificate and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificate, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended,
or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986,
as
amended, nor are we acting on behalf of any such plan, (e) we are acquiring
the
Certificate for investment for our own account and not with a view to any
distribution of such Certificate (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificate in accordance with clause
(g) below), (f) we have not offered or sold any Certificate to, or solicited
offers to buy the Certificate from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action
which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of the Certificate unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory
to
the addressees of this certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser
or
transferee has otherwise complied with any conditions for transfer set forth
in
the Trust Agreement.
Very
truly yours,
[TRANSFEREE]
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By:
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Authorized
Officer
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EXHIBIT
F
TRANSFEROR
CERTIFICATE
Wilmington
Trust Company, as Owner Trustee
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Re:
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Proposed
Transfer of the Trust Certificate, American Home Mortgage Investment
Trust
▇▇▇▇-▇
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▇▇▇▇▇▇▇▇▇:
This
certification is being made by ____________________ (the “Transferor”) in
connection with the proposed Transfer to _____________________ (the
“Transferee”) of a trust certificate (the “Trust Certificate”) representing ___%
fractional undivided interest in American Home Mortgage Investment Trust 2006-3
(the “Trust”) created pursuant to a Trust Agreement, dated as of September 22,
2006 (such agreement, as amended by the Amended and Restated Trust Agreement
dated December 28, 2006, being referred to herein as the “Trust Agreement”)
among American Home Mortgage Securities LLC (the “Company”), Wilmington Trust
Company, as Owner Trustee (the “Owner Trustee”) and Deutsche Bank National Trust
Company, as indenture trustee and ▇▇▇▇▇ Fargo Bank, N.A. as securities
administrator, as certificate registrar (the “Certificate Registrar”). Initially
capitalized terms used but not defined herein have the meanings assigned to
them
in the Deposit Trust Agreement. The Transferor hereby certifies, represents
and
warrants to, and covenants with, the Company, the Owner Trustee and the
Certificate Registrar that:
Neither
the Transferor nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred the Trust Certificate, any interest in
the
Trust Certificate or any other similar security to any person in any manner,
(b)
has solicited any offer to buy or to accept a pledge, disposition or other
transfer of any Trust Certificate, any interest in any Trust Certificate or
any
other similar security from any person in any manner, (c) has otherwise
approached or negotiated with respect to any Trust Certificate, any interest
in
the Trust Certificate or any other similar security with any person in any
manner, (d) has made any general solicitation by means of general advertising
or
in any other manner, or (e) has taken any other action, that (as to any of
(a)
through (e) above) would constitute a distribution of the Trust Certificate
under the Securities Act of 1933 (the “Act”), that would render the disposition
of the Trust Certificate a violation of Section 5 of the Act or any state
securities law, or that would require registration or qualification pursuant
thereto. The Transferor will not act in any manner set forth in the foregoing
sentence with respect to the Trust Certificate. The Transferor has not and
will
not sell or otherwise transfer any of the Trust Certificate, except in
compliance with the provisions of the Trust Agreement.
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Date:
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Name
of Transferor
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Signature
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Name
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Title
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EXHIBIT
G
FORM
OF
ERISA LETTER
[DATE]
Wilmington
Trust Company, as Owner Trustee
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▇▇▇▇▇
Fargo Bank, N.A.
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▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
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Re:
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Proposed
Transfer of Trust Certificate,
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American
Home Mortgage Investment Trust 2006-3 (the
“Certificate”)
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Gentlemen:
This
certification is being made by _________ (the “Transferee”) in connection with
the proposed Transfer by _________
(the “Transferor”) of a trust certificate (the “Trust Certificate”) representing
__% fractional undivided interest in American Home Mortgage Investment Trust
2006-3 (the “Trust”) created pursuant to a Trust Agreement, dated as of
September 22, 2006 (such agreement, as amended by the Amended and Restated
Trust
Agreement dated December 28, 2006, being referred to herein as the “Trust
Agreement”) among American Home Mortgage Securities LLC (the “Company”),
Wilmington Trust Company, as Owner Trustee (the “Owner Trustee”) and Deutsche
Bank National Trust Company, as indenture trustee and ▇▇▇▇▇ Fargo Bank, N.A.,
as
securities administrator, as certificate registrar (the “Certificate
Registrar”). Initially capitalized terms used but not defined herein have the
meanings assigned to them in the Trust Agreement. The Transferor hereby
certifies, represents and warrants to, and covenants with, the Company, the
Owner Trustee and the Certificate Registrar that:
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(i)
|
either
(a) or (b) is satisfied, as marked
below:
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___ a. The
Transferor is not any employee benefit plan or other plan subject to the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
Section 4975 of the Internal Revenue Code of 1986 (the “Code”) (each, a “Plan”),
a Person acting, directly or indirectly, on behalf of any Plan or any Person
acquiring such Certificate with “plan assets” of a Plan within the meaning of
the Department of Labor regulation promulgated at 29 C.F.R. § 2510.3-101;
or
___ b. The
Transferor is a Plan, a Person acting, directly or indirectly, on behalf of
a
Plan or a Person acquiring such Certificate with “plan assets” of a Plan within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101 and has provided the Depositor, the Owner Trustee, the Indenture
Trustee, the Certificate Registrar and the Sponsor with an Opinion of Counsel,
satisfactory to the Certificate Registrar to the effect (A) that the purchase
and holding of a Certificate by or on behalf of the Transferor (B) operation
of
the Trust and (C) management of Trust assets are permissible under applicable
law, will not constitute or result in a prohibited transaction under Section
406
of ERISA or Section 4975 of the Code (or comparable provisions of any subsequent
enactments) and will not subject the Depositor, the Owner Trustee, the Indenture
Trustee, the Certificate Registrar, the Sponsor, the Master Servicer or the
Servicer to any obligation or liability (including liabilities under ERISA
or
Section 4975 of the Code) in addition to those undertaken in the Trust
Agreement, which opinion of counsel shall not be an expense of the Depositor,
the Owner Trustee, the Indenture Trustee, the Certificate Registrar, the
Securities Administrator, the Sponsor, the Master Servicer or the Servicer;
and
(ii)
the
Transferor is familiar with the prohibited transaction restrictions and
fiduciary responsibility requirements of Sections 406 and 407 of ERISA and
Section 4975 of the Code and understands that each of the parties to which
this
certification is made is relying and will continue to rely on the statements
made in this paragraph.
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Very
truly yours,
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By:
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Name:
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Title:
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EXHIBIT
H
FORM
OF TRANSFEREE CERTIFICATE
Wilmington
Trust Company, as Owner Trustee
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▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Proposed
Transfer of Trust Certificate,
|
|
American
Home Mortgage Investment Trust 2006-3 (the
“Certificate”)
|
Gentlemen:
This
certification is being made by _________ (the “Transferee”) in connection with
the proposed Transfer by _________
(the “Transferor”) of a trust certificate (the “Trust Certificate”) representing
__% fractional undivided interest in American Home Mortgage Investment Trust
2006-3 (the “Trust”) created pursuant to a Trust Agreement, dated as of
September 22, 2006 (such agreement, as amended by the Amended and Restated
Trust
Agreement dated December 28, 2006, being referred to herein as the “Trust
Agreement”) among American Home Mortgage Securities LLC (the “Company”),
Wilmington Trust Company, as Owner Trustee (the “Owner Trustee”) and Deutsche
Bank National Trust Company, as indenture trustee and ▇▇▇▇▇ Fargo Bank, N.A.,
as
securities administrator, as certificate registrar (the “Certificate
Registrar”). Initially capitalized terms used but not defined herein have the
meanings assigned to them in the Trust Agreement. The Transferor hereby
certifies, represents and warrants to, and covenants with, the Company, the
Owner Trustee and the Certificate Registrar that:
Following
the transfer, the transferee will own both the Trust Certificate and a 100%
Percentage Interest in each Class of Privately Offered Notes then
Outstanding.
|
Date:
|
||||||
|
Name
of Transferee
|
||||||
|
Signature
|
||||||
|
Name
|
||||||
|
Title
|
||||||
EXHIBIT
I
FORM
OF LENDER TRANSFEROR CERTIFICATE
Wilmington
Trust Company, as Owner Trustee
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Proposed
Transfer of the Trust Certificate,
|
|
American
Home Mortgage Investment Trust 2006-3 (the
“Certificate”)
|
Gentlemen:
This
certification is being made by ___________ (the “Transferor”) in connection with
the proposed pledge or transfer to __________ of the Certificate representing
__% fractional undivided interest in American Home Mortgage Investment Trust
2006-3 created pursuant to a Trust Agreement, dated as of September 22, 2006
(such agreement, as amended by the Amended and Restated Trust Agreement, dated
December 28, 2006, being referred to herein as the “Trust Agreement”) among
American Home Mortgage Securities LLC, as depositor, Wilmington Trust Company,
as owner trustee (the “Owner Trustee”) and Deutsche Bank National Trust Company,
solely in its capacity as indenture trustee (the “Indenture Trustee”), ▇▇▇▇▇
Fargo Bank, N.A., as securities administrator, as certificate registrar (the
“Certificate Registrar”). Initially capitalized terms used but not defined
herein have the meanings assigned to them in the Trust Agreement. The Transferor
hereby certifies, represents and warrants to, and covenants with, the Owner
Trustee, the Indenture Trustee and the Certificate Registrar that:
(a)
The
transfer is being made by the Transferor upon a default under a loan agreement
or repurchase agreement treated as indebtedness that has been secured by the
Certificate; and
(b)
Either:
(i)
The
Transfer will not result in a TMP Trigger Event, as evidenced by an opinion
of
nationally recognized tax counsel addressed and provided to the Certificate
Registrar, the Securities Administrator, the Owner Trustee and the Indenture
Trustee (at the expense of the proposed transferor or transferee), or
(ii)
The
Transfer will result in a TMP Trigger Event, as evidenced by an opinion of
nationally recognized tax counsel addressed and provided to the Certificate
Registrar, the Securities Administrator, the Owner Trustee and the Indenture
Trustee (at the expense of the proposed transferor or transferee), and the
following conditions precedent to the Transfer have been satisfied:
(1)
American Home Mortgage Investment Corp. shall have purchased all the REO
properties in the Trust Estate at their fair market value;
(2)
the
party who caused the TMP Trigger Event shall have contributed to the Trust
Estate an amount equal to any allocation of Realized Losses on the Offered
Notes, if any, resulting from the sale of the REO properties described in clause
(i) above; and
(3)
the
entity that delivered notice causing the REMIC Conversion to be undertaken
shall
have made provision for payment satisfactory to the Owner Trustee, the Indenture
Trustee, the Securities Administrator, the Paying Agent and the Note Registrar
and others for any initial or ongoing additional administrative expenses
associated with the REMIC elections.
EXHIBIT
J
FORM
OF
REMIC INDENTURE
(Provided
under Separate Cover)
EXHIBIT
K
UNDERLYING
REMIC TRUST POOLING AND SERVICING AGREEMENT
(Provided
under Separate Cover)
|
Date:
|
||||||
|
Name
of Transferor
|
||||||
|
Signature
|
||||||
|
Name
|
||||||
|
Title
|
||||||