STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., Depositor, and WELLS FARGO BANK, N.A., Grantor Trust Trustee GRANTOR TRUST AGREEMENT Dated as of August 31, 2007 Bear Stearns Structured Products Inc. Trust 2007-R6 Grantor Trust Certificates Series 2007-R6
Exhibit
4.1
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STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.,
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Depositor,
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and
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XXXXX
FARGO BANK, N.A.,
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Grantor
Trust Trustee
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Dated
as of August 31, 2007
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$614,251,145
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Bear
Xxxxxxx Structured Products Inc. Trust 2007-R6
Grantor
Trust Certificates
Series
2007-R6
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ARTICLE
I DEFINITIONS
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Section 1.01 Defined
Terms.
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ARTICLE
II CONVEYANCE
OF THE UNDERLYING SECURITIES; ORIGINAL ISSUANCE OF GRANTOR TRUST
CERTIFICATES
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Section 2.01 Conveyance
of the Underlying Securities.
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Section 2.02 Acceptance
of Trust Fund by Grantor Trust Trustee; Initial Issuance of Grantor
Trust
Certificates.
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Section 2.03 Representations
and Warranties of the Depositor and the Grantor Trust
Trustee.
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Section 2.04 Grantor
Trust
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ARTICLE
III ADMINISTRATION
OF THE UNDERLYING SECURITIES; PAYMENTS AND REPORTS TO GRANTOR TRUST
CERTIFICATEHOLDERS
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Section 3.01 Administration
of the Trust Fund and the Underlying Securities.
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Section 3.02 Collection
of Monies.
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Section 3.03 Establishment
of Certificate Account; Deposits Therein.
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Section 3.04 Permitted
Withdrawals From the Certificate Account.
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Section 3.05 Distributions.
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Section 3.06 Statements
to Grantor Trust Certificateholders.
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Section 3.07 Access
to Certain Documentation and Information.
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Section 3.08 Calculation
of Distribution Amounts.
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Section 3.09 Annual
Statement as to Compliance.
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Section 3.10 Assessments
of Compliance and Attestation Reports.
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Section 3.11 Reports
Filed with Securities and Exchange Commission.
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ARTICLE
IV THE
CERTIFICATES
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Section 4.01 The
Grantor Trust Certificates.
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Section 4.02 Registration
of Transfer and Exchange of Grantor Trust Certificates.
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Section 4.03 Mutilated,
Destroyed, Lost or Stolen Grantor Trust Certificates.
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Section 4.04 Persons
Deemed Owners.
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ARTICLE
V THE
GRANTOR TRUST TRUSTEE
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Section 5.01 Duties
of Grantor Trust Trustee.
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Section 5.02 Certain
Matters Affecting the Trustee and the Grantor Trust
Trustee
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Section 5.03 Grantor
Trust Trustee Not Liable for Certificates or Underlying
Securities.
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Section 5.04 Grantor
Trust Trustee May Own Grantor Trust Certificates.
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Section 5.05 Grantor
Trust Trustee’s Fees and Expenses.
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Section 5.06 Eligibility
Requirements for Grantor Trust Trustee.
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Section 5.07 Resignation
and Removal of the Grantor Trust Trustee
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Section 5.08 Successor
Grantor Trust Trustee
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Section 5.09 Merger
or Consolidation of Grantor Trust Trustee
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Section 5.10 Appointment
of Co-Grantor Trust Trustee or Separate Grantor Trust
Trustee.
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ARTICLE
VI THE
DEPOSITOR
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Section 6.01 Liability
of the Depositor.
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Section 6.02 Merger,
Consolidation or Conversion of the Depositor.
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Section 6.03 Limitation
on Liability of the Depositor and Others.
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ARTICLE
VII TERMINATION
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Section 7.01 Termination.
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ARTICLE
VIII MISCELLANEOUS
PROVISIONS
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Section 8.01 Amendment.
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Section 8.02 Counterparts.
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Section 8.03 Limitation
on Rights of Grantor Trust Certificateholders.
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Section 8.04 Governing Law.
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Section 8.05 Notices.
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Section 8.06 Severability of Provisions.
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Section 8.07 Successors
and Assigns.
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Section 8.08 Article
and Section Headings.
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Section 8.09 Notices
to Rating Agencies.
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Section 8.10 Acts
of Grantor Trust Certificateholders
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Exhibit
A
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Form
of Grantor Trust Certificates
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Exhibit
B
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Form
of Annual Certification
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Exhibit
C
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Servicing
Criteria to Be Addressed in Assessment of Compliance
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Exhibit
D
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Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
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Exhibit
E
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Additional
Disclosure Notification
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Schedule
A
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Underlying
Securities
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GRANTOR
TRUST AGREEMENT, dated as of August 31, 2007, by and between STRUCTURED ASSET
MORTGAGE INVESTMENTS II INC., as depositor (the “Depositor”), and Xxxxx
Fargo Bank, N.A., as grantor trust trustee (the “Grantor Trust
Trustee”).
PRELIMINARY
STATEMENT
The
Depositor intends to cause the issuance of and to sell its Grantor Trust
Certificates, Series 2007-R6, Class I-A-1, Class I-A-2, Class II-A-1 and Class
II-A-2 Certificates representing in the aggregate the entire beneficial
ownership of a trust fund, the primary asset of which is the Underlying
Securities (as defined herein).
All
things necessary to make this Agreement a valid declaration of trust by the
Depositor in accordance with its terms have been done.
In
consideration of the premises and the mutual agreements herein contained, the
Depositor and the Grantor Trust Trustee agree as follows:
DEFINITIONS
Section
1.01. Defined
Terms.
Whenever
used in this Agreement, including the Preliminary Statement, the following
words
and phrases, unless the context otherwise requires, shall have the following
meanings:
Affiliate: With
respect to any specified Person, any other Person that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means
possession, direct or indirect, of the power to direct or cause the direction
of
the management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise, and the terms “controlling,”
“controlled by” and “under common control with” have meanings correlative to the
foregoing.
Agreement: This
Grantor Trust Agreement and all amendments hereof and supplements
hereto.
Available
Funds: Any of the Group I Available Funds and the Group II
Available Funds.
Bear,
Xxxxxxx: Bear, Xxxxxxx & Co. Inc.
Bear
Xxxxxxx ALT-A Trust 2005-8 Class II-1A-1 Certificates: Structured
Asset Mortgage Investments II Inc., Bear Xxxxxxx ALT-A Trust, Mortgage
Pass-Through Certificates, Series 2005-8, Class II-1A-1
Certificates.
Bear
Xxxxxxx ALT-A Trust 2005-9 Class II-3A-1 Certificates: Structured
Asset Mortgage Investments II Inc., Bear Xxxxxxx ALT-A Trust, Mortgage
Pass-Through Certificates, Series 2005-9, Class II-3A-1
Certificates.
Bear
Xxxxxxx ALT-A Trust 2005-10 Class II-5A-1
Certificates: Structured Asset Mortgage Investments II Inc., Bear
Xxxxxxx ALT-A Trust, Mortgage Pass-Through Certificates, Series 2005-10, Class
II-5A-1 Certificates.
Bear
Xxxxxxx ALT-A Trust 2006-3 Class II-3A-1 Certificates: Structured
Asset Mortgage Investments II Inc., Bear Xxxxxxx ALT-A Trust 2006-3, Mortgage
Pass-Through Certificates, Series 2006-3, Class II-3A-1
Certificates.
Bear
Xxxxxxx ALT-A Trust 2007-2 Class II-A-1 Certificates: Structured
Asset Mortgage Investments II Inc., Bear Xxxxxxx ALT-A Trust, Mortgage
Pass-Through Certificates, Series 2007-2, Class II-A-1
Certificates.
Bear
Xxxxxxx ARM Trust 2007-2 Class II-A-1 Notes: Structured Asset
Mortgage Investments II Inc., Bear Xxxxxxx ARM Trust 2007-2, Mortgage-Backed
Notes, Series 2007-2, Class II-A-1 Notes.
Business
Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day
on which banking institutions in the cities of New York, New York, Columbia,
Maryland, Minneapolis, Minnesota or any city in which the Corporate Trust Office
of the Grantor Trust Trustee is located are authorized or obligated by law
or
executive order to be closed.
Certificate
Account: The trust account or accounts, which shall at all times
be Eligible Accounts, created and maintained by the Grantor Trust Trustee for
the benefit of the Grantor Trust Certificateholders pursuant to Section
3.03. Funds deposited in the Certificate Account shall be held in
trust for the Grantor Trust Certificateholders for the uses and purposes set
forth in Article III hereof.
Certificate
Register: Shall have the meaning provided in Section
4.02.
Class: Collectively,
all of the Grantor Trust Certificates bearing the same designation.
Class
I-A-1 Grantor Trust Certificate: Any Class I-A-1 Grantor Trust
Certificate as executed hereunder by the Grantor Trust Trustee and authenticated
and delivered hereunder by the Trustee, substantially in the form of Exhibit
A
hereto.
Class
I-A-2 Grantor Trust Certificate: Any Class I-A-2 Grantor Trust
Certificate as executed hereunder by the Grantor Trust Trustee and authenticated
and delivered hereunder by the Trustee, substantially in the form of Exhibit
A
hereto.
Class
II-A-1 Grantor Trust Certificate: Any Class II-A-1 Grantor Trust
Certificate as executed hereunder by the Grantor Trust Trustee and authenticated
and delivered hereunder by the Trustee, substantially in the form of Exhibit
A
hereto.
Class
II-A-2 Grantor Trust Certificate: Any Class II-A-2 Grantor Trust
Certificate as executed hereunder by the Grantor Trust Trustee and authenticated
and delivered hereunder by the Trustee, substantially in the form of Exhibit
A
hereto.
Closing
Date: August 31, 2007.
Code: The
Internal Revenue Code of 1986, as amended.
Commission: U.S.
Securities and Exchange Commission.
Corporate
Trust Office: The corporate trust office of the Grantor Trust
Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of
the
execution of this Agreement, for purposes other than presentment and surrender
of the Grantor Trust Certificates, is located at Xxxxx Xxxxx Xxxx, X.X.,
X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000 (or, for overnight deliveries, 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000), Attention: Client Manager – BSSP
2007-R6, and for purposes of presentment and surrender of the Grantor Trust
Certificates for registration of transfer, exchange or final payment, is located
at Xxxxx Fargo Bank, N.A., Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: Corporate Trust Office - BSSP 2007-R6, or any other
address that the Grantor Trust Trustee may designate from time to time by notice
to the Grantor Trust Certificateholders
Current
Principal Amount: With respect to any Grantor Trust Certificate,
as of any date of determination, the original principal amount of such Grantor
Trust Certificate minus (i) the aggregate of all distributions of principal
previously made on that Grantor Trust Certificate pursuant to Section 3.05
and
(ii) the principal portion of all Realized Losses previously allocated to such
Grantor Trust Certificate pursuant to Section 3.05.
Cut-off
Date: August 31, 2007.
Definitive
Certificates: The meaning specified in Section 4.01(b)
hereof.
Depositor: Structured
Asset Mortgage Investments II Inc., a Delaware corporation, or its successor
in
interest.
Depository: DTC,
the nominee of which is Cede & Co., or any successor thereto.
Depository
Agreement: The meaning specified in Subsection 4.01(a)
hereof.
Depository
Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
Distribution
Date: The Business Day immediately following each Underlying
Securities Distribution Date, commencing in September 2007.
DTC: The
Depository Trust Company.
Eligible
Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company, the
long-term unsecured debt obligations and short-term unsecured debt obligations
of which (or, in the case of a depository institution or trust company that
is
the principal subsidiary of a holding company, the debt obligations of such
holding company, so long as Xxxxx’x is not a Rating Agency) are rated by each
Rating Agency in one of its two highest long-term and its highest short-term
rating categories, respectively, at the time any amounts are held on deposit
therein; provided, that following a downgrade, withdrawal, or suspension of
such
institution’s rating as set forth above, each account shall promptly (and in any
case within not more than 30 calendar days) be moved to one or more segregated
trust accounts in the trust department of such institution, or to an account
at
another institution that complies with the above requirements, or (ii) a trust
account or accounts maintained with the corporate trust department of a federal
or state chartered depository institution or trust company having capital and
surplus of not less than $50,000,000, acting in its fiduciary capacity or (iii)
any other account acceptable to the Rating Agencies, as evidenced in writing.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Grantor Trust Trustee.
Notwithstanding Section 8.01, this Agreement may be amended to reduce the rating
requirements in clause (i) above, without the consent of any of the Grantor
Trust Certificateholders, provided that the Person requesting such amendment
obtains a letter from each Rating Agency stating that such amendment would
not
result in the downgrading or withdrawal of the respective ratings then assigned
to the Grantor Trust Certificates.
ERISA: The
Employee Retirement Income Security Act of 1974, as amended, and the rules
and
regulations promulgated thereunder.
Exchange
Act: The Securities Exchange Act of 1934, as
amended.
FDIC:
Federal Deposit Insurance Corporation or any successor thereto.
Final
Distribution Date: With respect to each Underlying Security, the
Underlying Security Distribution Date on which the final distribution thereon
is
to be made in accordance with the related Underlying Agreement; and with respect
to the Grantor Trust Certificates, the Distribution Date on which the
final distribution thereon is to be made in accordance with this
Agreement.
Grantor
Trust Certificate: Any of the Group I Grantor Trust Certificates
and Group II Grantor Trust Certificates.
Grantor
Trust Certificate Owner: Any Person who is the beneficial owner
of a Grantor Trust Certificate registered in the name of the Depository or
its
nominee.
Grantor
Trust Certificateholder or Holder: The person in whose name a
Grantor Trust Certificate is registered in the Certificate Register, except
that, subject to Sections 8.01(b) and 8.10(e), solely for the purpose of giving
any consent, approval or waiver pursuant to this Agreement, any Grantor Trust
Certificate registered in the name of the Depositor or any Affiliate thereof
shall be deemed not to be outstanding and shall not be taken into account for
purposes of determining whether the Holders of Grantor Trust Certificates
evidencing the requisite aggregate Percentage Interest necessary to effect
any
such consent, approval or waiver has been obtained, unless such Persons
collectively own all the Grantor Trust Certificates.
Grantor
Trust Trustee: Xxxxx Fargo Bank, N.A., in its capacity as grantor trust
trustee, or its successor in interest.
Group
I Available Funds: As of any date of determination, the aggregate
amount on deposit in the Certificate Account as of such date received with
respect to the Group I Underlying Securities, net of any portion thereof which
represents amounts to be paid to any Person pursuant to clauses (ii) and (iv)
of
Section 3.04.
Group
I Grantor Trust Certificates: Any of the Class I-A-1 Grantor Trust
Certificates and Class I-A-2 Grantor Trust Certificates.
Group
I Sub-Trust: The segregated pool of assets subject hereto and constituting a
portion of the Trust Fund, consisting of (i) the Group I Underlying Securities,
(ii) all amounts payable on the Group I Underlying Securities following the
Closing Date pursuant to the related Underlying Agreements, (iii) the portion
of
the Certificate Account and such funds or assets as are from time to time
deposited in the Certificate Account related to the Group I Underlying
Securities, (iv) the Depositor’s rights under the Purchase Agreement related to
the Group I Underlying Securities and (v) the income, payments and proceeds
of
each of the foregoing.
Group
I Underlying Securities: The respective Underlying Security Class Percentage
of the Bear Xxxxxxx ALT-A Trust 2005-8 Class II-1A-1 Certificates, the Bear
Xxxxxxx ALT-A Trust 2005-9 Class II-3A-1 Certificates and the Bear Xxxxxxx
ALT-A
Trust 2005-10 Class II-5A-1 Certificates, sold by the Depositor to, and
registered in the name of, the Grantor Trust Trustee, or held by
the Grantor Trust Trustee for the benefit of the Holders of the Group
I Grantor Trust Certificates, pursuant to Section 2.01 and as more particularly
described in Schedule A hereto.
Group
II Available Funds: As of any date of determination, the
aggregate amount on deposit in the Certificate Account as of such date received
with respect to the Group II Underlying Securities, net of any portion thereof
which represents amounts to be paid to any Person pursuant to clauses (ii)
and
(iv) of Section 3.04.
Group
II Grantor Trust Certificates: Any of the Class II-A-1 Grantor Trust
Certificates and Class II-A-2 Grantor Trust Certificates.
Group
II Sub-Trust: The segregated pool of assets subject hereto and constituting
a portion of the Trust Fund, consisting of (i) the Group II Underlying
Securities, (ii) all amounts payable on the Group II Underlying Securities
following the Closing Date pursuant to the related Underlying Agreements, (iii)
the portion of the Certificate Account and such funds or assets as are from
time
to time deposited in the Certificate Account with respect to the Group II
Underlying Securities, (iv) the Depositor’s rights under the Purchase Agreement
with respect to the Group II Underlying Securities and the income, payments
and
proceeds of each of the foregoing.
Group
II Underlying Securities: The respective Underlying Security Class
Percentage of the Bear Xxxxxxx ALT-A Trust 2006-3 Class II-3A-1 Certificates,
the Bear Xxxxxxx ALT-A Trust 2007-2 Class II-A-1 Certificates and the Bear
Xxxxxxx ARM Trust 2007-2 Class II-A-1 Notes, sold by the Depositor to, and
registered in the name of, the Grantor Trust Trustee, or held by
the Grantor Trust Trustee for the benefit of the Holders of the
Group II Grantor Trust Certificates, pursuant to Section 2.01 and as more
particularly described in Schedule A hereto.
Interest
Accrual Period: For each Distribution Date, the one-month period
ending on the last day of the month preceding the month in which such
Distribution Date occurs. The initial Interest Accrual Period will be deemed
to
have commenced on the Cut-off Date.
Interest
Distribution Amount: With respect to the Grantor Trust
Certificates and any Distribution Date, the amount of interest accrued during
the related Interest Accrual Period at the related Pass-Through Rate on the
Current Principal Amount of the related Grantor Trust Certificates immediately
prior to such Distribution Date.
Investment
Company Act: The Investment Company Act of 1940, as amended from
time to time, and the rules and regulations promulgated thereunder.
Latest
Possible Final Distribution Date: With respect to the Group I Grantor Trust
Certificates, the Distribution Date occurring in January 2036. With respect
to
the Group II Grantor Trust Certificates, the Distribution Date occurring in
December 2046.
Majority
Grantor Trust Certificateholders: With respect to the Group I
Grantor Trust Certificates or the Group II Grantor Trust Certificates, the
Holders of the related Grantor Trust Certificates evidencing in the aggregate
greater than 50% of the aggregate Current Principal Amount of all the related
Grantor Trust Certificates.
Moody’s:
Xxxxx’x Investors Service, Inc.
NMWHFIT:
shall mean a “Non-Mortgage Widely Held Fixed Investment Trust” as that term is
defined in Treasury Regulations section 1.671-5(b)(12) or successor
provisions.
Notice
of Final Distribution: With respect to each Underlying Security,
any notice provided pursuant to the related Underlying Agreement to the effect
that final distribution on such Underlying Security shall be made only upon
presentment and surrender thereof. With respect to the Grantor Trust
Certificates, the notice to be provided pursuant to Sections 7.01(b) or 7.01(d)
to the effect that final distribution on the Grantor Trust Certificates shall
be
made only upon presentment and surrender thereof.
Officer’s
Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President or Assistant
Vice President or other authorized officer of the Depositor and delivered to
the
Grantor Trust Trustee, as required by this Agreement.
Opinion
of Counsel: A written opinion of counsel, who may be counsel for
the Depositor, which opinion is addressed to the Grantor Trust Trustee and
is
reasonably acceptable to the Grantor Trust Trustee.
Pass-Through
Rate: With respect to any Distribution Date and the Group I
Grantor Trust Certificates, a per annum pass-through rate equal to the weighted
average pass-through rate of the Group I Underlying Securities, as reported
in
the related Underlying Distribution Date Statement for the related Underlying
Security Distribution Date. With respect to any Distribution Date and the Group
II Grantor Trust Certificates, a per annum pass-through rate equal to the
weighted average of the pass-through rates of the Bear Xxxxxxx ALT-A Trust
2006-3 Class II-3A-1 Certificates and the Bear Xxxxxxx ALT-A Trust 2007-2 Class
II-A-1 Certificates and the note interest rate of the Bear Xxxxxxx ARM Trust
2007-2 Class II-A-1 Notes, as reported in the related Underlying Distribution
Date Statement for the related Underlying Security Distribution
Date.
Percentage
Interest: With respect to any Class of Grantor Trust
Certificates, the portion of the Grantor Trust Certificates represented by
such
Grantor Trust Certificate, expressed as a percentage, the numerator of which
is
the initial outstanding Current Principal Amount of such Class of Grantor Trust
Certificates as of the Closing Date, as specified on the face thereof, and
the
denominator of which is the Original Current Principal Amount of all Grantor
Trust Certificates in such Class.
Permitted
Investments: Any one or more of the following obligations
or securities held in the name of the Grantor Trust Trustee for the
benefit of the related Grantor Trust Certificateholders:
(i) obligations
of the United States or any agency thereof, provided such obligations are backed
by the full faith and credit of the United States;
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt ratiing of
each
Rating Agency, or such lower rating as will not result in the downgrading
or
withdrawal of the ratings then assigned to the Notes by each Rating Agency,
as
evidenced in writing;
(iii) commercial
or finance company paper which is then receiving the highest commercial
or
finance company paper rating of each Rating Agency, or such lower rating
as will
not result in the downgrading or withdrawal of the ratings then assigned
to the
Notes by each Rating Agency, as evidenced in writing;
(v)
guaranteed reinvestment agreements issued by any bank, insurance company or
other corporation containing, at the time of the issuance of such agreements,
such terms and conditions as will not result in the downgrading or withdrawal
of
the rating then assigned to the Notes by each Rating Agency, as evidenced in
writing;
(vi) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (v) above;
(vii)
securities
(other than stripped bonds, stripped coupons or instruments sold at a purchase
price in excess of 115% of the face amount thereof) bearing interest or sold
at
a discount issued by any corporation incorporated under the laws of the United
States or any state thereof which, at the time of such investment, have one
of
the two highest short term ratings of each Rating Agency (except if the Rating
Agency is Moody’s, such rating shall be the highest commercial paper rating of
Moody’s for any such securities), or such lower rating as will not result in the
downgrading or withdrawal of the rating then assigned to the Notes by each
Rating Agency, as evidenced by a signed writing delivered by each Rating
Agency;
(viii) interests
in any money market fund (including any such fund managed or advised by the
Grantor Trust Trustee or any affiliate thereof) which at the date of acquisition
of the interests in such fund and throughout the time such interests are held
in
such fund has the highest applicable short term rating by each Rating Agency
rating such fund or such lower rating as will not result in the downgrading
or
withdrawal of the ratings then assigned to the Notes by each Rating Agency,
as
evidenced in writing;
(ix)
short
term investment funds sponsored by any trust company or banking association
incorporated under the laws of the United States or any state thereof (including
any such fund managed or advised by the Grantor Trust Trustee or any affiliate
thereof) which on the date of acquisition has been rated by each Rating Agency
in their respective highest applicable rating category or such lower rating
as
will not result in the downgrading or withdrawal of the ratings then assigned
to
the Notes by each Rating Agency, as evidenced in writing;
and
(x)
such
other investments having a specified stated maturity and bearing interest or
sold at a discount acceptable to each Rating Agency and as will not result
in
the downgrading or withdrawal of the rating then assigned to the Notes by any
Rating Agency, as evidenced by a signed writing delivered by each Rating
Agency;
provided,
that no such instrument shall be a Permitted Investment if such instrument
(i)
evidences the right to receive interest only payments with respect to the
obligations underlying such instrument, (ii) is purchased at a premium or (iii)
is purchased at a deep discount; provided further that no such instrument shall
be a Permitted Investment (A) if such instrument evidences principal and
interest payments derived from obligations underlying such instrument and the
interest payments with respect to such instrument provide a yield to maturity
of
greater than 120% of the yield to maturity at par of such underlying
obligations, or (B) if it may be redeemed at a price below the purchase price
(the foregoing clause (B) not to apply to investments in units of money market
funds pursuant to clause (viii) above); provided further that no amount
beneficially owned by any REMIC may be invested in investments (other than
money
market funds) treated as equity interests for federal income tax purposes,
unless the Grantor Trust Trustee shall receive an Opinion of Counsel, at the
expense of the Grantor Trust Trustee, to the effect that such investment will
not adversely affect the status of any such REMIC as a REMIC under the Code
or
result in imposition of a tax on any such REMIC. Permitted
Investments that are subject to prepayment or call may not be purchased at
a
price in excess of par.
Person: Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Purchase
Agreement: The Purchase Agreement, dated as of August 31, 2007,
between EMC Mortgage Corporation and the Depositor relating to the
Underlying Securities.
Rating
Agency: S&P or Moody’s or their respective
successors. If such agency or its successors are no longer in
existence, “Rating Agency” shall be deemed to refer to such nationally
recognized statistical rating agency, or other comparable Person, designated
by
the Depositor, notice of which designation shall be given to the Grantor Trust
Trustee, and specific ratings of the Rating Agency shall be deemed to refer
to
the equivalent ratings of the party so designated.
Record
Date: For the Grantor Trust Certificates and the first
Distribution Date, the Closing Date, and for any Distribution Date thereafter,
the last Business Day of the month preceding the month in which such
Distribution Date occurs.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as amended from time to time, and subject to such
clarification and interpretation as have been provided by the Commission in
the
adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission,
or
as may be provided by the Commission or its staff from time to
time.
Repurchase
Price: In connection with the repurchase of any of the Underlying
Securities pursuant to Section 2.03(c), a price equal to the outstanding
principal balance thereof as of the date of repurchase plus accrued interest
thereon.
Responsible
Officer: When used with respect to the Grantor Trust Trustee, any
officer of the Grantor Trust Trustee assigned to and working in its Corporate
Trust Office or similar group administering the Trusts hereunder and also,
with
respect to a particular matter, any other officer of the Grantor Trust Trustee
to whom a particular matter is referred by the Grantor Trust Trustee because
of
such officer’s knowledge of and familiarity with the particular
subject.
S&P:
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc., and its
successors in interest.
Securities
Act: The Securities Act of 1933, as amended.
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time, or those Servicing
Criteria otherwise mutually agreed to by the Sponsor, the Grantor Trust Trustee
and the Depositor in response to evolving interpretations of Regulation AB
and
incorporated into a revised Exhibit C.
Sponsor: EMC
Mortgage Corporation, or its successor in interest.
Sub-Trust: Either
of the Group I Sub-Trust and Group II Sub-Trust.
Trust:
Bear Xxxxxxx Structured Products Inc. Trust 2007-R6, created pursuant to this
Agreement and comprised of the Trust Fund.
Trust
Fund: The segregated pool of assets subject hereto, constituting
the corpus of the Trust created hereby and to be administered hereunder,
consisting of the Group I Sub-Trust and the Group II Sub-Trust.
Underlying
Agreement: Any of the agreements pursuant to which any the
Underlying Securities were issued, as in effect on the Closing
Date.
Underlying
Distribution Date Statement: The monthly investor reports
provided or made available pursuant to each Underlying Agreement in respect
of
the related Underlying Security in connection with the related Underlying
Security Distribution Date.
Underlying
Securities: Any of the Group I Underlying Securities and Group II
Underlying Securities.
Underlying
Security Class Percentage: The percentage which each Underlying
Security constitutes of its entire class as set forth in Schedule A attached
hereto under the caption “Class % in Trust.”
Underlying
Security Distribution Date: The 25th day of each month, or if
such day is not a Business Day, then the next Business Day commencing in
September 2007.
Underlying
Securityholder: The Grantor Trust Trustee or its Depository
Participant for the benefit of the related Grantor Trust
Certificateholders.
Underlying
Series: The series of securities which includes the related
Underlying Securities.
Underlying
2007 Series: The series of
securities which includes any of the Bear Xxxxxxx ALT-A Trust 2007-2 Class
II-A-1 Certificates and the Bear Xxxxxxx ARM Trust 2007-2 Class II-A-1
Notes.
WHFIT:
shall mean a “Widely Held Fixed Investment Trust” as that term is defined in
Treasury Regulations section 1.671-5(b)(22) or successor
provisions.
WHFIT
Regulations: shall mean Treasury Regulations section 1.671-5, as
amended.
ARTICLE
II
CONVEYANCE
OF THE UNDERLYING SECURITIES; ORIGINAL ISSUANCE OF GRANTOR TRUST CERTIFICATES
Section
2.01. Conveyance
of the Underlying Securities.
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
sell, transfer, assign, set-over and otherwise convey to the Grantor Trust
Trustee, in trust, for the use and benefit of the related Grantor Trust
Certificateholders, without recourse, all the right, title and interest of
the
Depositor in and to (i) the related Underlying Securities, (ii) the Purchase
Agreement and (iii) all other assets constituting the related
Sub-Trust. Such assignment includes, without limitation, all amounts
payable on the related Underlying Securities pursuant to the related Underlying
Agreement following the Closing Date.
(b) In
connection with such transfer and assignment, and concurrently with its
execution and delivery of this Agreement, the Depositor shall have caused the
Underlying Securities to be registered in the book-entry records of
the Depository in the name of the Grantor Trust Trustee or its
nominee.
(c) The
transfer of the Underlying Securities and all other assets constituting the
Trust Fund is absolute and is intended by the parties hereto as a
sale.
(d) It
is
intended that the conveyances by the Depositor to the Grantor Trust Trustee
of
the Underlying Securities as provided for in this Section 2.01 be construed
as a
sale by the Depositor to the Grantor Trust Trustee of the Underlying Securities
for the benefit of the related Grantor Trust
Certificateholders. Further, it is not intended that any such
conveyance be deemed to be a pledge of the Underlying Securities by the
Depositor to the Grantor Trust Trustee to secure a debt or other obligation
of
the Depositor. However, in the event that the Underlying Securities
are held to be property of the Depositor, or if for any reason this Agreement
is
held or deemed to create a security interest in the Underlying Securities,
then
it is intended that (a) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (b) the conveyance provided for in Section 2.01 shall be deemed
to
be a grant by the Depositor to the Grantor Trust Trustee of a security interest
in all of the Depositor’s right (including the power to convey title thereto),
title and interest, whether now owned or hereafter acquired, in and to (1)
the
Underlying Securities, (2) all amounts payable on the Underlying Securities
in
accordance with the terms thereof and (3) any and all general intangibles
consisting of, arising from or relating to any of the foregoing, and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including without limitation
all amounts from time to time held in the Certificate Account, whether in the
form of cash, instruments, securities or other property; (c) the possession
by
the Grantor Trust Trustee or any agent of the Grantor Trust Trustee of such
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be “possession by the secured party,” or
possession by a purchaser or a person designated by such secured party, for
purposes of perfecting the security interest pursuant to the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; and (d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the Grantor
Trust Trustee for the purpose of perfecting such security interest under
applicable law. It is also intended that the Trust be classified for
federal income tax purposes as a grantor trust under Subpart E, part I of
subchapter J of chapter 1 of the Code, of which the Grantor Trust
Certificateholders are owners, rather than a partnership, an association taxable
as a corporation or a taxable mortgage pool. The powers granted and
obligations undertaken in this Agreement shall be construed so as to further
such intent.
The
Depositor and the Grantor Trust Trustee, at the Depositor’s or the related
Majority Grantor Trust Certificateholders’ direction, shall, to the extent
consistent with this Agreement, take such reasonable actions as may be
determined to be necessary to ensure that, if this Agreement were deemed to
create a security interest in the related Underlying Securities, and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will
be
maintained as such throughout the term of this Agreement.
Section
2.02. Acceptance
of Trust Fund by Grantor Trust Trustee; Initial Issuance of Grantor Trust
Certificates.
The
Grantor Trust Trustee acknowledges receipt of the Underlying Agreements and
the
receipt by it and the transfer, delivery and assignment to it of the Underlying
Securities, in good faith and without notice of any adverse claim, and the
assignment to it of all other assets included in the Trust Fund and declares
that it holds and will hold the Underlying Securities and all other assets
included in the Trust Fund in trust for the exclusive use and benefit of all
present and future related Grantor Trust Certificateholders in accordance with
the terms of this Agreement. Concurrently with such transfer,
delivery and assignment and in exchange therefor, pursuant to the written
request of the Depositor executed by an officer of the Depositor, the Grantor
Trust Trustee has executed and caused to be authenticated and delivered to
or
upon the order of the Depositor, the Grantor Trust Certificates in authorized
denominations evidencing the entire beneficial ownership of the Trust
Fund.
Until
the
related Sub-Trust is terminated in accordance with Section 7.01, except as
provided herein, the Grantor Trust Trustee shall not assign, sell, dispose
of or
transfer any interest in the related Underlying Securities or any other asset
constituting the related Sub-Trust or permit the related Underlying Securities
or any other asset constituting the related Sub-Trust to be subjected to any
lien, claim or encumbrance arising by, through or under the Grantor Trust
Trustee or any person claiming by, through or under the Grantor Trust
Trustee.
Section
2.03. Representations
and Warranties of the Depositor and the Grantor Trust Trustee.
(a) The
Depositor hereby represents and warrants to the Grantor Trust Trustee, and
for
the benefit of the Grantor Trust Certificateholders, as of the Closing Date,
that:
(i) The
Depositor is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and the Depositor is possessed of
all
licenses necessary to carry on its business.
(ii) The
execution and delivery of this Agreement by the Depositor, and the performance
and compliance with the terms of this Agreement by the Depositor, will not
violate the Depositor’s certificate of incorporation or bylaws or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material agreement
or other instrument to which it is a party or which is applicable to it or
any
of its assets.
(iii) The
Depositor has the full right, power and authority to enter into and consummate
all transactions contemplated by this Agreement, including but not limited
to
selling the Underlying Securities to the Grantor Trust Trustee, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the Grantor
Trust Trustee, constitutes a valid, legal and binding obligation of the
Depositor, enforceable against the Depositor in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors’ rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The
Depositor is not in violation of, and its execution and delivery of this
Agreement and its performance and compliance with the terms of this Agreement
will not constitute a violation of, any law, any order or decree of any court
or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation is likely to affect
materially and adversely either the ability of the Depositor to perform its
obligations under this Agreement or the financial condition of the
Depositor.
(vi) No
litigation is pending or, to the best of the Depositor’s knowledge, threatened
against the Depositor which, if determined adversely to the Depositor, would
prohibit the Depositor from entering into this Agreement or is likely to
materially and adversely affect either the ability of the Depositor to perform
its obligations under this Agreement or the financial condition of the
Depositor.
(vii) The
Depositor was, immediately prior to the transfer of the Underlying Securities
to
the Grantor Trust Trustee, the sole owner thereof free and clear of any lien,
pledge, charge or encumbrance of any kind (except any lien created by this
Agreement).
(viii) The
Depositor acquired the Underlying Securities in good faith without notice of
any
adverse claim, lien, charge, encumbrance or security interest (including without
limitation, federal tax liens or liens arising under ERISA).
(ix) The
Depositor has not assigned any interest in the Underlying Securities or any
distributions thereon, except as contemplated herein.
(x) The
Grantor Trust Trustee, will be entitled to distributions under the Underlying
Agreements equal to all distributions of interest and principal made on the
Underlying Securities.
(xi) The
information relating to the Underlying Securities set forth in Schedule A is
true and correct in all material respects.
(xii) The
Underlying Securities are registered on the books of the Depository in the
name of the Grantor Trust Trustee or its financial intermediary on behalf of
the
Grantor Trust Trustee.
(xiii) The
Underlying Securities other than the Bear Xxxxxxx ARM Trust 2007-2 Class II-A-1
Notes are “regular interests” in a real estate mortgage investment conduit
within the meaning of Section 860G(a)(1) of the Code, and the Bear Xxxxxxx
ARM
Trust 2007-2 Class II-A-1 Notes are indebtedness for federal income tax
purposes.
(xiv) The
Depositor has no actual knowledge after reasonable inquiry that any of the
Underlying Securities (1) were not validly issued by the related underlying
trust, (2) are not outstanding, (3) are not the legal, valid, binding and
enforceable obligation of the related underlying trust, and (4) are not entitled
to the benefits of the related Underlying Agreement pursuant to which such
Underlying Security was issued (except as limited by bankruptcy, insolvency
or
other similar laws affecting the enforcement of creditors’ rights generally or
to the extent that such enforceability may be subject to the exercise of
judicial discretion in accordance with general equitable
principles).
(xv) The
information relating to the Underlying Securities set forth on Schedule A hereto
conforms to information set forth in the Prospectus dated December 20, 2004
and
the Prospectus Supplement dated August 29, 2005 for the Bear Xxxxxxx ALT-A
Trust
2005-8 Class II-1A-1 Certificates, the Prospectus dated December 20, 2004 and
the Prospectus Supplement dated September 28, 2005 for the Bear Xxxxxxx ALT-A
Trust 2005-9 Class II-3A-1 Certificates, the Prospectus dated December 20,
2004
and the Prospectus Supplement dated December 28, 2005 for the Bear Xxxxxxx
ALT
-A Trust 2005-10 Class II-5A-1 Certificates, the Prospectus dated March 28,
2006
and the Prospectus Supplement dated April 27, 2006 for the Bear Xxxxxxx ALT-A
Trust 2006-3 Class II-3A-1 Certificates, the Prospectus dated March 20, 2007
and
the Prospectus Supplement dated March 29, 2007 for the Bear Xxxxxxx ALT-A Trust
2007-2 Class II-A-1 Certificates, and the Prospectus dated June 28, 2007 and
the
Prospectus Supplement dated June 28, 2007 for the Bear Xxxxxxx ARM Trust 2007-2
Class II-A-1 Notes.
(b) The
Grantor Trust Trustee hereby represents and warrants to the Depositor and for
the benefit of the Grantor Trust Certificateholders, as of the Closing Date,
that:
(i) The
Grantor Trust Trustee is a national banking association, duly organized and
validly existing under the laws of the United States of America.
(ii) The
execution and delivery of this Agreement by the Grantor Trust Trustee, and
the
performance and compliance with the terms of this Agreement by the Grantor
Trust
Trustee, will not violate the Grantor Trust Trustee’s charter or bylaws or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is applicable
to
it or any of its assets.
(iii) The
Grantor Trust Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly executed
and delivered this Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the Depositor,
constitutes a valid, legal and binding obligation of the Grantor Trust Trustee,
enforceable against the Grantor Trust Trustee in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors’ rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The
Grantor Trust Trustee is not in violation of, and its execution and delivery
of
this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree
of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation is likely to
affect materially and adversely the ability of the Grantor Trust Trustee to
perform its obligations under this Agreement.
(vi) No
litigation is pending or, to the best of the Grantor Trust Trustee’s knowledge,
threatened against the Grantor Trust Trustee which would prohibit the Grantor
Trust Trustee from entering into this Agreement or is likely to materially
and
adversely affect the ability of the Grantor Trust Trustee to perform its
obligations under this Agreement.
(vii) The
Underlying Securities will be held by the Grantor Trust Trustee through the
Depository or its nominee; it has acquired the Underlying Securities on behalf
of the related Grantor Trust Certificateholders from the Depositor in good
faith, for value, and the Grantor Trust Trustee has not received notice of,
and
has no actual knowledge of, any adverse claim, lien, charge, encumbrance or
security interest (including, without limitation, federal tax liens or liens
arising under ERISA); it has not and will not, in any capacity except as Grantor
Trust Trustee, on behalf of the related Grantor Trust Certificateholders, assert
any claim or interest in the related Underlying Securities and will hold the
related Underlying Securities and the proceeds thereof in trust pursuant to
the
terms of this Agreement; and it has not encumbered or transferred its right,
title or interest in the Underlying Securities.
(c) It
is
understood and agreed that the foregoing representations and warranties shall
survive the execution and delivery of this Agreement. Upon discovery
by either party hereto of a breach of any of the foregoing representations
and
warranties which materially and adversely affects the interests of the related
Grantor Trust Certificateholders or either party hereto, the party discovering
such breach will give prompt written notice thereof to the other party hereto
and to the related Grantor Trust Certificateholders. Within thirty
(30) days of the earlier of either discovery by or notice to the Depositor
of
any breach of a representation or warranty of the Depositor that materially
and
adversely affects the interests of the related Grantor Trust Certificateholders,
the Depositor shall use its best efforts promptly to cure such breach in all
material respects and, if such breach cannot be cured, the Depositor shall,
at
the election of the related Majority Grantor Trust Certificateholders,
repurchase the related Underlying Security affected by the breach at the
Repurchase Price. If the Depositor is to repurchase any Underlying
Security, the Grantor Trust Trustee shall promptly determine the Repurchase
Price in accordance with the definition thereof. Repurchase of any
Underlying Security pursuant to the foregoing provisions of this Section 2.03(c)
shall be accomplished by deposit by the Depositor in the Certificate Account
on
the Business Day prior to the next succeeding Distribution Date of the amount
of
the Repurchase Price.
Section
2.04. Grantor
Trust. The Trust created hereby is intended to qualify as an
“investment trust” within the meaning of Treasury Regulation §301.7701-4(c), and
it is neither the purpose nor the intent of the parties hereto to create a
partnership, joint venture, taxable mortgage pool or association taxable as
a
corporation between or among the Grantor Trust Certificateholders, the Grantor
Trust Trustee or the Depositor. In furtherance of the foregoing, the
purpose of the Trust shall be to protect and conserve the assets of the Trust,
and the Trust shall not at any time engage in or carry on any kind of business
or any kind of commercial or investment activity. Subject to the
foregoing, the Trust shall:
(i) issue
the
Grantor Trust Certificates to, or at the written direction of, the Depositor
in
exchange for the Underlying Securities;
(ii) perform
the activities of the Trust that are expressly set forth in this
Agreement;
(iii) engage
in
those activities that are reasonably necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected therewith;
and
(iv) subject
to compliance with this Agreement, engage in such other activities as may be
required in connection with conservation of the Trust and the making of
distributions to the Grantor Trust Certificateholders.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trust shall
not
engage in any activity other than the foregoing or other than as required or
authorized by the terms of this Agreement while any Grantor Trust Certificate
is
outstanding without the consent of all of the Grantor Trust Certificateholders;
provided, however, that in no event shall the Grantor Trust Trustee or any
other
Person have any duty, responsibility or power to vary the investment of the
Grantor Trust Certificateholders in the Grantor Trust Certificates or to
substitute new investments or reinvest so as to enable the Trust to take
advantage of variations in the market to improve the investment of the Grantor
Trust Certificateholders in the Grantor Trust Certificates.
ARTICLE
III
ADMINISTRATION
OF THE UNDERLYING SECURITIES;
PAYMENTS
AND REPORTS TO GRANTOR TRUST CERTIFICATEHOLDERS
Section
3.01. Administration
of the Trust Fund and the Underlying Security.
If
at any
time the Grantor Trust Trustee, as a holder of the Underlying Securities, is
requested in such capacity, whether by a related Grantor Trust
Certificateholder, a holder of a certificate or note of any Underlying Series
or
a party to the related Underlying Agreement or any other Person, to take any
action (other than, for the avoidance of doubt, the surrender of the Bear
Xxxxxxx ARM Trust 2007-2 Class II-A-1 Notes in exchange for a corresponding
class of REMIC notes, as required by and described in the related Underlying
Agreement) or to give any consent, approval or waiver, including, without
limitation, in connection with an amendment of any Underlying Agreement, the
Grantor Trust Trustee shall promptly notify all of the related Holders of
Grantor Trust Certificates and the Depositor of such request and of its planned
course of action with respect thereto and shall, in its capacity as a holder
of
the related Underlying Securities, take such action in connection with the
exercise and/or enforcement of any rights and/or remedies available to it in
such capacity with respect to such request, as the related Majority Grantor
Trust Certificateholder of the related Grantor Trust Certificates shall direct
in writing.
Section
3.02. Collection
of Monies.
(a) In
connection with its receipt of any distribution on the Underlying Securities
on
any Underlying Security Distribution Date, the Grantor Trust Trustee shall
review the related Underlying Distribution Date Statement and shall confirm
that
the aggregate amount of such distribution received by it with respect to the
Underlying Securities is consistent with the Underlying Distribution Date
Statements (it being understood that the Grantor Trust Trustee shall be entitled
to rely on the accuracy and correctness of the Underlying Distribution Date
Statements).
(b) If
the
Grantor Trust Trustee receives a Notice of Final Distribution in respect of
any
Underlying Security, the Grantor Trust Trustee shall present and surrender
the
related Underlying Security which is in certificated form for final payment
thereon, if required, in accordance with the terms and conditions of the related
Underlying Agreement and such notice. The Grantor Trust Trustee shall
promptly deposit in the Certificate Account the final distribution received
upon
presentation and surrender of such Underlying Security for distribution in
accordance with Section 3.05 hereof on the next succeeding Distribution Date
for
the Grantor Trust Certificates.
Section
3.03. Establishment
of Certificate Account; Deposits Therein.
(a) The
Grantor Trust Trustee, for the benefit of the related Grantor Trust
Certificateholders, shall establish and maintain one or more interest bearing
trust accounts (collectively, the “Certificate Account”), each of which
shall be an Eligible Account, entitled “Xxxxx Fargo Bank, N.A., as grantor trust
trustee for the registered Holders of Bear Xxxxxxx Structured Products Inc.
Trust 2007-R6, Grantor Trust Certificates, Series 2007-R6,” held in trust by the
Grantor Trust Trustee for the benefit of the related Grantor Trust
Certificateholders with respect to the portion of such accounts in the
related Sub-Trust. The Grantor Trust Trustee shall cause to be
deposited directly into the Certificate Account all distributions received
on
the Underlying Securities by the Grantor Trust Trustee, from whatever source,
and all amounts received by it representing payment of a Repurchase Price
pursuant to Section 2.03(c), subsequent to the Closing Date. The
Certificate Account is initially located at the Grantor Trust
Trustee. The Grantor Trust Trustee shall give notice to the Depositor
and to the related Grantor Trust Certificateholders of any new location of
the
Certificate Account prior to any change thereof.
(b) In
the
event that payments in respect of the Underlying Securities are received by
the
Grantor Trust Trustee prior to the related Distribution Date, the Grantor Trust
Trustee may invest such funds deposited in the Certificate Account in one or
more Permitted Investments held in the name of the Grantor Trust Trustee and
shall receive as compensation, any interest or investment income earned on
such
Permitted Investments, which may be withdrawn by the Grantor Trust Trustee
on
each Distribution Date and shall not constitute Available Funds. Notwithstanding
the foregoing, no such Permitted Investment may mature later than such related
Distribution Date and no such investment shall be sold prior to its maturity
date. The amount of any losses incurred in respect of any such investments
shall
be deposited in the Certificate Account by the Grantor Trust Trustee immediately
as realized out of its own funds.
(c) The
Depositor shall cause all distributions received on the Underlying Securities
by
the Depositor or any of its Affiliates after the Closing Date to be remitted
promptly to the Grantor Trust Trustee for deposit into the Certificate
Account.
Section
3.04. Permitted
Withdrawals From the Certificate Account.
The
Grantor Trust Trustee may from time to time withdraw funds from the Certificate
Account for the following purposes:
(i) to
make
distributions in the amounts and in the manner provided for in Section
3.05;
(ii) to
pay to
the Person entitled thereto any amount deposited in the Certificate Account
in
error;
(iii) to
clear
and terminate the Certificate Account upon the termination of this Agreement;
and
(iv) to
pay
itself, as additional compensation, the net reinvestment income permitted to
be
paid to it as provided in Section 3.03(b).
On
each
Distribution Date, the Grantor Trust Trustee shall withdraw all funds from
the
Certificate Account and shall use such funds withdrawn from the Certificate
Account only for the purposes described in this Section 3.04 and in Section
3.05.
Section
3.05. Distributions.
(a) On
each
Distribution Date, the Grantor Trust Trustee shall withdraw amounts from the
Certificate Account representing the Group I Available Funds and apply them
to
pay the Group I Grantor Trust Certificates in the following manner and order
of
priority:
(i) from
amounts representing interest received on the Group I Underlying Securities,
if
any, to the Holders of the Class I-A-1 Grantor Trust Certificates and Class
I-A-2 Grantor Trust Certificates, on a pro rata basis, as a distribution of
interest, the Interest Distribution Amount for the Class I-A-1 Grantor Trust
Certificates and Class I-A-2 Grantor Trust Certificates for such Distribution
Date; and
(ii) from
amounts representing principal received on the Group I Underlying Securities,
if
any, to the Holders of the Class I-A-1 Grantor Trust Certificates and Class
I-A-2 Grantor Trust Certificates, on a pro rata basis, as distributions of
principal, until the Current Principal Amounts of the Class I-A-1 Grantor Trust
Certificates and Class I-A-2 Grantor Trust Certificates have been reduced to
zero.
(b) On
each
Distribution Date, the Grantor Trust Trustee shall withdraw amounts from the
Certificate Account representing the Group II Available Funds and apply them
to
pay the Group II Grantor Trust Certificates in the following manner and order
of
priority:
(i) from
amounts representing interest received on the Group II Underlying Securities,
if
any to the Holders of the Class II-A-1 Grantor Trust Certificates and Class
II-A-2 Grantor Trust Certificates, on a pro rata basis, as a distribution of
interest, the Interest Distribution Amount for the Class II-A-1 Grantor Trust
Certificates and Class II-A-2 Grantor Trust Certificates for such Distribution
Date; and
(ii) from
amounts representing principal received on the Group II Underlying Securities,
if any, to the Holders of the Class II-A-1 Grantor Trust Certificates and Class
II-A-2 Grantor Trust Certificates, on a pro rata basis, as distributions of
principal, until the Current Principal Amounts of the Class II-A-1 Grantor
Trust
Certificates and Class II-A-2 Grantor Trust Certificates have been reduced
to
zero.
(c) All
distributions made to Holders of the Grantor Trust Certificates pursuant to
Sections 3.05(a) and 3.05(b) on each Distribution Date shall be allocated
prorata among the outstanding related Grantor Trust Certificates
based upon their respective Percentage Interests and, except in the case of
the
final distribution to the Holders of the Grantor Trust Certificates, shall
be
made to the related Holders of record on the related Record
Date. Distributions to any Grantor Trust Certificateholder on any
Distribution Date shall be made by wire transfer of immediately available funds
to the account of such Grantor Trust Certificateholder at a bank or other entity
having appropriate facilities therefor, if such Grantor Trust Certificateholder
shall have so notified the Grantor Trust Trustee in writing (which wiring
instructions may be in the form of a standing order applicable to all future
Distribution Dates) no less than five (5) Business Days prior to the related
Record Date (or, in the case of the initial Distribution Date, no later than
the
related Record Date) and is the registered owner of related Grantor Trust
Certificates with an aggregate initial Current Principal Amount of not less
than
$1,000,000, or otherwise by check mailed by first class mail to the address
of
such Grantor Trust Certificateholder appearing in the Certificate
Register. Final distribution to each Grantor Trust Certificateholder
will be made in like manner, but only upon presentment and surrender of such
Grantor Trust Certificate at the Corporate Trust Office or such other location
specified in the notice to Grantor Trust Certificateholders of such final
distribution.
(d) Notwithstanding
any other provision of this Agreement, the Grantor Trust Trustee shall comply
with all federal withholding requirements respecting payments to Grantor Trust
Certificateholders of interest or the accrual of discount that the Grantor
Trust
Trustee reasonably believes are applicable under the Code. The
consent of Grantor Trust Certificateholders shall not be required for such
withholding. In the event the Grantor Trust Trustee does withhold any
amount from payments to any Grantor Trust Certificateholder pursuant to federal
withholding requirements, the Grantor Trust Trustee shall indicate the amount
withheld to such Grantor Trust Certificateholders.
(e) Realized
Losses. On any Distribution Date, following distributions to be
made on that Distribution Date, any Realized Losses (as defined in each
Underlying Agreement) allocated (a) to the Group I Underlying Securities, will
first be allocated to the Class I-A-2 Grantor Trust Certificates, until the
Current Principal Amount thereof has been reduced to zero, and then to the
Class
I-A-1 Grantor Trust Certificates, until the Current Principal Amount thereof
has
been reduced to zero; and (b) to the Group II Underlying Securities, will first
be allocated to the Class II-A-2 Grantor Trust Certificates, until the Current
Principal Amount thereof has been reduced to zero, and then to the Class II-A-1
Grantor Trust Certificates, until the Current Principal Amount thereof has
been
reduced to zero.
Section
3.06. Statements
to Grantor Trust Certificateholders.
On
each
Distribution Date, the Grantor Trust Trustee shall prepare and make available
to
each Grantor Trust Certificateholder, the Depositor and the Rating Agencies,
on
its website, a statement with respect to such Distribution Date,
stating:
(i) the
related Available Funds for such Distribution Date, including the cash flows
received and the sources thereof for distributions;
(ii) the
Interest Distribution Amount and the amount with respect to principal paid
on
the related Grantor Trust Certificates with respect to such Distribution
Date;
(iii) the
Current Principal Amount of the related Grantor Trust Certificates before and
after applying payments on such Distribution Date;
(iv) the
applicable record dates, accrual dates and actual Distribution Dates for the
period;
(v) the
Pass-Through Rate on the related Grantor Trust Certificates for such
Distribution Date; and
(vi) the
interest rate on the related Underlying Securities for such Distribution
Date.
In
the
case of the information furnished pursuant to clause (ii) above, the amounts
shall also be expressed as a dollar amount per $100,000 of principal face
amount.
The
Grantor Trust Trustee may make available each month, to any interested party,
the monthly statement to Grantor Trust Certificateholders via the Grantor Trust
Trustee’s website initially located at xxx.xxxxxxx.xxx.
Assistance in using the website can be obtained by calling the Grantor Trust
Trustee’s customer service desk at (000) 000-0000. Parties that are unable to
use the above distribution option are entitled to have a paper copy mailed
to
them via first class mail by calling the Grantor Trust Trustee’s customer
service desk and indicating such. The Grantor Trust Trustee shall have the
right
to change the way such reports are distributed in order to make such
distribution more convenient and/or more accessible to the parties, and the
Grantor Trust Trustee shall provide timely and adequate notification to all
parties regarding any such change.
In
addition, the Grantor Trust Trustee promptly will furnish to the Depositor,
and
upon the written request of a Grantor Trust Certificateholder, to such Grantor
Trust Certificateholder, copies of any written notices, statements, reports
or
other written communications, received by the Grantor Trust Trustee in respect
of the related Underlying Securities.
The
Grantor Trust Trustee shall be responsible for preparing, at its own expense,
executing and filing in a timely manner, on behalf of the Trust Fund and for
the
Trust Fund as a grantor trust under the Code, federal income tax and information
returns and reports with the Internal Revenue Service (“IRS”) and income tax and
information returns and reports of any other state or local taxing authority
as
are required to be so filed, using a calendar year as the taxable year of the
Trust on an accrual basis including the information reportable under the WHFIT
Regulations as provided below. The Depositor and each Holder of the Grantor
Trust Certificates shall provide the Grantor Trust Trustee, all information
deemed necessary and requested by the Grantor Trust Trustee to fulfill its
obligations under this paragraph and the paragraphs below. The
Grantor Trust Trustee shall furnish to each Grantor Trust Certificateholder
at
the time required by law such information reports or returns as are required
by
applicable federal, state or local law with respect to the Trust Fund to enable
Grantor Trust Certificateholders to prepare their tax returns and will furnish
comparable information to the IRS and other taxing authorities as and when
required by law to do so.
The
parties hereto and each Holder of a Grantor Trust Certificate, by acceptance
of
its interest in such Grantor Trust Certificate, agree to treat the Trust Fund
as
a WHFIT that is a NMWHFIT. The Grantor Trust Trustee shall report as required
under the WHFIT Regulations to the extent such information as is reasonably
necessary and requested by the Grantor Trust Trustee to enable the Grantor
Trust
Trustee to do so is provided to the Grantor Trust Trustee on a timely
basis. Each Holder of Grantor Trust Certificates and the Depositor
shall provide (to the extent known by the Depositor) the Grantor Trust Trustee
with information identifying any Holders of Grantor Trust Certificates that
are
“middlemen” as defined by the WHFIT Regulations. The Grantor Trust
Trustee shall not be liable for any tax reporting penalties that may arise
under
the WHFIT Regulations as a result of the incorrect determination of the status
of the Trust Fund as a WHFIT.
The
Grantor Trust Trustee, in its discretion, shall report required WHFIT
information using either the cash or accrual method, except to the extent the
WHFIT Regulations specifically require a different method. The
Grantor Trust Trustee shall be under no obligation to determine whether a Holder
of a Grantor Trust Certificate uses the cash or accrual method. The
Grantor Trust Trustee shall make available WHFIT information to the Holders
of
Grantor Trust Certificates annually in accordance with the WHFIT
Regulations. In addition, the Grantor Trust Trustee shall not be
responsible or liable for providing subsequently amended, revised or updated
information to any Holder of Grantor Trust Certificates, unless requested by
any
such Holder.
The
Grantor Trust Trustee shall not be liable for failure to meet the reporting
requirements of the WHFIT Regulations nor for any penalties thereunder if such
failure is due to: (i) the lack of reasonably necessary information being
provided to the Grantor Trust Trustee as required in the second preceding
paragraph, (ii) incomplete, inaccurate or untimely information being provided
to
the Grantor Trust Trustee or (iii) the inability of the Grantor Trust Trustee,
after good faith efforts, to alter its existing information reporting systems
to
capture information necessary to fully account for any updates and revisions
to
the WHFIT Regulations for the 2007 calendar year. Each Holder of a
Grantor Trust Certificate, by acceptance of its interest in such Grantor Trust
Certificate, shall be deemed to have agreed to provide, and shall so provide,
the Grantor Trust Trustee with information regarding any sale of such Grantor
Trust Certificate, including the price, amount of proceeds and date of
sale. Absent receipt of such information, and unless informed
otherwise by the Depositor, the Grantor Trust Trustee will assume there is
no
secondary market trading of interests in the Trust Fund for purposes of the
WHFIT Regulations.
To
the
extent required by the WHFIT Regulations, the Grantor Trust Trustee shall
publish on an appropriate website the CUSIPs for the Grantor Trust
Certificates. The Grantor Trust Trustee shall make reasonable good
faith efforts to keep the website accurate and updated to the extent CUSIPs
have
been received. Absent the receipt of a CUSIP, the Grantor Trust
Trustee shall use a reasonable identifier number in lieu of such missing
CUSIP. The Grantor Trust Trustee shall not be liable for investor
reporting delays that result from the receipt of inaccurate or untimely CUSIP
information.
The
Grantor Trust Trustee shall be entitled to additional reasonable compensation
for changes in reporting required in respect of the WHFIT Regulations that
arise
as a result of a change in the WHFIT Regulations or a change in interpretation
of the WHFIT Regulations by the IRS or the Depositor or its counsel, in each
case, following the Closing Date, if such change requires, in the Grantor Trust
Trustee’s sole discretion, a material increase in the Grantor Trust Trustee’s
reporting obligations under the WHFIT Regulations in respect of the Trust
Fund.
Section
3.07. Access
to Certain Documentation and Information.
The
Grantor Trust Trustee shall provide to the Depositor access to all reports,
documents and records maintained by the Grantor Trust Trustee in respect of
its
duties hereunder, such access being afforded without charge but only upon three
(3) Business Days’ written request and during normal business hours at offices
designated by the Grantor Trust Trustee.
Section
3.08. Calculation
of Distribution Amounts.
All
calculations of Available Funds, the Interest Distribution Amount and amounts
payable with respect to principal for any Distribution Date shall be performed
by the Grantor Trust Trustee in reliance on the information provided to it
in
the applicable Underlying Distribution Date Statements.
Section
3.09. Annual
Statement as to Compliance.
(a) The
Grantor Trust Trustee shall deliver (or otherwise make available) to the
Depositor not later than March 15th of each calendar year in which a Form 10-K
is required to be filed beginning in 2008, an Officer’s Certificate (an “Annual
Statement of Compliance”) stating, as to each signatory thereof, that (i) a
review of the activities of the Grantor Trust Trustee during the preceding
calendar year and of its performance under this Agreement has been made under
such officer’s supervision and (ii) to the best of such officer’s knowledge,
based on such review, the Grantor Trust Trustee has fulfilled all of its
obligations under this Agreement in all material respects throughout such year
or applicable portion thereof, or, if there has been a failure to fulfill any
such obligation in any material respect, specifying each such failure known
to
such officer and the nature and status of the cure provisions
thereof. Such Annual Statement of Compliance shall contain no
restrictions or limitations on its use.
(b) The
servicer, master
servicer, securities administrator and/or custodian for each of the
Underlying Series, other than the Underlying 2007 Series, will be required
to
provide to the Grantor Trust Trustee and the Depositor an Annual Statement
of
Compliance pursuant to the related Underlying Agreement or a side letter
agreement. The Depositor, in its capacity as the depositor for the Underlying
Series, shall forward any Annual Statement of Compliance to the Grantor Trust
Trustee not otherwise received by the Grantor Trust Trustee and any other Annual
Statement of a Servicer that is required to be filed under the related Form
10-K.
(c) Failure
of the Grantor Trust Trustee to comply with this Section 3.09 (including with
respect to the timeframes required in this Section) which failure results in
a
failure to timely file the related Form 10-K, shall, upon written notice from
the Depositor, constitute a default, and, in addition to whatever rights the
Depositor may have under this Agreement and at law or equity or to damages,
including injunctive relief and specific performance, the Depositor may upon
notice immediately terminate all of the rights and obligations of the Grantor
Trust Trustee under this Agreement and in and to the Underlying Securities
and
the proceeds thereof without compensating the Grantor Trust Trustee for the
same
(but subject to the Grantor Trust Trustee’s right to reimbursement of all
amounts for which it is entitled to be reimbursed prior to the date of
termination). This paragraph shall supersede any other provision in
this Agreement or any other agreement to the contrary.
Section
3.10. Assessments
of Compliance and Attestation Reports.
Pursuant
to Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB,
the Grantor Trust Trustee (to the extent set forth in this Section) (the
“Attesting Party”) shall deliver (or otherwise make available) to the Depositor
on or before March 15th of each calendar year in which a report on Form 10-K
is
required to be filed with the Commission with respect to the Grantor Trust
Certificates, beginning in 2008, a report regarding the Attesting Party’s
assessment of compliance (an “Assessment of Compliance”) with the Servicing
Criteria applicable to it during the preceding calendar year. The
Assessment of Compliance, as set forth in Regulation AB, must contain the
following:
(a) A
statement by an authorized officer of the Attesting Party of its authority
and
responsibility for assessing compliance with the Servicing Criteria applicable
to the Attesting Party;
(b) A
statement by an authorized officer that the Attesting Party used the Servicing
Criteria identified in Exhibit C hereto to assess compliance with the Servicing
Criteria applicable to the Attesting Party;
(c) An
assessment by such officer of the Attesting Party’s compliance with the
applicable Servicing Criteria for the period consisting of the preceding
calendar year, including disclosure of any material instance of noncompliance
with respect thereto during such period, which assessment shall be based on
the
activities the Attesting Party performs with respect to asset-backed securities
transactions taken as a whole involving the Attesting Party, that are backed
by
the same asset type as those backing the Underlying Securities;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the Attesting Party’s Assessment of Compliance for the period
consisting of the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Attesting Party, which statement shall be based on the activities the
Attesting Party performs with respect to asset-backed securities transactions
taken as a whole involving the Attesting Party, that are backed by the same
asset type as those backing the Grantor Trust Certificates.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit C hereto which are indicated as applicable to the Attesting
Party.
On
or
before March 15th of each calendar year in which a report on Form 10-K is
required to be filed with the Commission with respect to the Grantor Trust
Certificates, beginning in 2008, the Attesting Party shall furnish to the
Depositor a report (an “Attestation Report”) by a registered public accounting
firm that attests to, and reports on, the Assessment of Compliance made by
the
Attesting Party, as required by Rules 13a-18 and 15d-18 of the Exchange Act
and
Item 1122(b) of Regulation AB, which Attestation Report must be made in
accordance with standards for attestation reports issued or adopted by the
Public Company Accounting Oversight Board.
Each
party to the Underlying Series that is determined by the Depositor to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB will be required to provide to the Grantor Trust Trustee and
the
Depositor an Assessment of Compliance and Attestation Report pursuant to
the
related Underlying Agreement or a side letter agreement. The Depositor, in
its
capacity as depositor for the Underlying Series, shall forward any Assessment
of
Compliance and Attestation Report to Grantor Trust Trustee not otherwise
received by the Grantor Trust Trustee and any other Assessment of Compliance
and
Attestation Report required to be filed under the related Form 10-K. The
Depositor will identify and provide any Assessment of Compliance and Attestation
Report to the Grantor Trust Trustee required to be included in any Form 10-K
and, with respect to each Underlying 2007 Series, cause such Assessments
of
Compliance and Attestation Reports that are required to be included in such
Form
10-K to be incorporated by reference.
The
Depositor shall confirm that each Assessment of Compliance delivered to it
addresses all of the Servicing Criteria set forth in Exhibit C and notify the
Grantor Trust Trustee of any exceptions. Notwithstanding the foregoing, as
to
any subcontractor, an Assessment of Compliance is not required to be delivered
unless it is required as part of a Form 10-K with respect to the Trust
Fund.
Failure
of the Grantor Trust Trustee to comply with this Section 3.10 (including with
respect to the timeframes required in this Section) which failure results in
a
failure to timely file the related Form 10-K, shall, upon written notice from
the Depositor, constitute a default and the Depositor shall, in addition to
whatever rights the Depositor may have under this Agreement and at law or equity
or to damages, including injunctive relief and specific performance, upon notice
immediately terminate all of the rights and obligations of the Grantor Trust
Trustee under this Agreement and in and to the Underlying Securities and the
proceeds thereof without compensating the Grantor Trust Trustee for the same
(but subject to the Grantor Trust Trustee’s right to reimbursement of all
amounts for which it is entitled to be reimbursed prior to the date of
termination). This paragraph shall supersede any other provision in
this Agreement or any other agreement to the contrary.
Section
3.11. Reports
Filed with Securities and Exchange Commission.
(a) (i)
(A)
Within 15 days after each Distribution Date, for so long as the Trust is subject
to Exchange Act reporting requirements, the Grantor Trust Trustee shall, in
accordance with industry standards, prepare and file with the Commission via
the
Electronic Data Gathering and Retrieval System (“XXXXX”), a Distribution Report
on Form 10-D, signed by the Depositor, with a copy of the monthly statement
to
be furnished by the Grantor Trust Trustee to the Grantor Trust
Certificateholders for such Distribution Date pursuant to Section 3.06 hereof,
including any monthly statement with respect to any Underlying Series, and
in
the case of the Underlying 2007 Series, the Depositor shall incorporate by
reference the related monthly statement including the related Form 10-D’s;
provided that, the Grantor Trust Trustee shall have received no later than
five
(5) calendar days after the related Distribution Date, all information required
to be provided to the Grantor Trust Trustee as described in clause (a)(iv)
below
and pursuant to the side letter agreements. Any disclosure that is in
addition to the monthly statement and that is required to be included on Form
10-D, including any information that is required to be filed under Form 10-D
in
connection with any of the Underlying Series (other than the Underlying 2007
Series) pursuant to the Underlying Agreements, the side letter agreements or
as
otherwise required to be provided or incorporated by reference as instructed
by
the Depositor (“Additional Form 10-D Disclosure”), shall be, pursuant to the
paragraph (B) below, reported by the parties set forth on Exhibit D and reported
by parties related to the Underlying Series pursuant to certain side letter
agreements to the Grantor Trust Trustee, or otherwise provided by the Depositor
with respect to any information required to be provided pursuant to Item 1117
or
Item 1119 of Regulation AB, and the Depositor and approved for inclusion by
the
Depositor. The Grantor Trust Trustee will have no duty or liability for any
failure hereunder to determine or prepare any Additional Form 10-D Disclosure
absent such reporting (other than in the case where the Grantor Trust Trustee
is
the reporting party as set forth in Exhibit D) and approval.
Notwithstanding
anything in this Agreement or the Underlying Agreements to the contrary,
the
Grantor Trust Trustee, as master servicer and/or securities administrator
for
each of the Underlying Series, shall aggregate and make available to the
Depositor all information provided pursuant to Item 1121 of Regulation AB
with
respect to each Underlying Series for purposes of including such information
in
each Form 10-D that is required to be filed under this Agreement.
(B)
Within five (5) calendar days after the related Distribution Date, (i) the
parties set forth in Exhibit D and the parties related to the Underlying
Series
and required to provide information pursuant to the Underlying Agreements
and
certain side letter agreements shall be required to provide, pursuant to
Section
3.11(a)(iv) below and pursuant to the side letter agreements, to the Grantor
Trust Trustee and the Depositor, to the extent known by a responsible officer
thereof, in XXXXX-compatible format, or in such other form as otherwise agreed
upon by the Grantor Trust Trustee and the Depositor and such party, the form
and
substance of any Additional Form 10-D Disclosure, if applicable and (ii)
the
Depositor shall approve, as to form and substance, or disapprove, as the
case
may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D.
To
the extent not otherwise required under any related Underlying Agreement
or side
letter agreement, the Depositor shall provide to the Grantor Trust Trustee
any
Additional Form 10-D Disclosure (other than any information required under
Item
1121 of Regulation AB) for any Servicer of an Underlying Series. The Depositor
shall be responsible for any reasonable fees and expenses assessed or incurred
by the Grantor Trust Trustee in connection with including any Form 10-D
Disclosure Information on Form 10-D pursuant to this Section.
(C)
After
preparing the Form 10-D, the Grantor Trust Trustee shall forward electronically
a copy of the Form 10-D to the Depositor for review. Within two (2)
Business Days after receipt of such copy, but no later than the 12th calendar
day after the Distribution Date (provided that, the Grantor Trust Trustee
forwards a copy of the Form 10-D no later than the 10th calendar after the
Distribution Date), the Depositor shall notify the Grantor Trust Trustee in
writing (which may be furnished electronically) of any changes to or approval
of
such Form 10-D. In the absence of receipt of any written changes or
approval, the Grantor Trust Trustee shall be entitled to assume that such Form
10-D is in final form and the Grantor Trust Trustee may proceed with the filing
of the Form 10-D. No later than the 13th calendar day after the
related Distribution Date, a duly authorized officer of the Depositor shall
sign
the Form 10-D and return an electronic or fax copy of such signed Form 10-D
(with an original executed hard copy to follow by overnight mail) to the Grantor
Trust Trustee. If a Form 10-D cannot be filed on time or if a
previously filed Form 10-D needs to be amended, the Grantor Trust Trustee shall
follow the procedures set forth in Section 3.11(a)(v). Promptly (but no later
than one (1) Business Day) after filing with the Commission, the Grantor Trust
Trustee shall make available on its internet website a final executed copy
of
each Form 10-D filed by the Grantor Trust Trustee. The parties to
this Agreement acknowledge that the performance by the Grantor Trust Trustee
of
its duties under Sections 3.11(a)(i) and (v) related to the timely preparation,
execution and filing of Form 10-D is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
such
Sections. The Grantor Trust Trustee shall not have any liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare and timely file such Form 10-D, where such failure results from the
Grantor Trust Trustee’s inability or failure to receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 10-D, not resulting from its own negligence, bad faith or
willful misconduct.
Each
of
Form 10-D and Form 10-K requires the registrant to indicate (by checking “yes”
or “no”) that it “(1) has filed all reports required to be filed by Section 13
or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been
subject to such filing requirements for the past 90 days.” The
Depositor hereby represents to the Grantor Trust Trustee that the Depositor
has
filed all such required reports during the preceding twelve (12) months and
it
has been subject to such filing requirements for the past 90
days. The Depositor shall notify the Grantor Trust Trustee in
writing, no later than the fifth calendar day after the related Distribution
Date with respect to the filing of a report on Form 10-D and no later than
March
15th with
respect to the filing of a report on Form 10-K, if the answer to the questions
should be “no.” The Grantor Trust Trustee shall be entitled to rely
on such representations in preparing, executing and/or filing any such
report.
(ii)
(A)
Within four (4) Business Days after the occurrence of an event requiring
disclosure on Form 8-K (each such event, a “Reportable Event”), for so long as
the Trust is subject to Exchange Act reporting requirements, the Grantor
Trust
Trustee shall prepare and file, at the direction of the Depositor, on behalf
of
the Trust, any Form 8-K, as required by the Exchange Act; provided that,
the
Depositor shall prepare and file the initial Form 8-K in connection with
the
issuance of the Grantor Trust Certificates. Any disclosure or
information related to a Reportable Event or that is otherwise required to
be
included on Form 8-K, including any Form 8-K filed in connection with the
Underlying Series (other than the Underlying 2007 Series) that, but for the
filing of a Form 15 for any such Underlying Series, is required to be filed
in a
Form 8-K pursuant to the Underlying Agreements, the side letter agreements
or as
otherwise required to be provided or incorporated by reference as instructed
by
the Depositor (“Form 8-K Disclosure Information”), shall be, pursuant to the
paragraph immediately below, reported by the parties set forth on Exhibit
D and
the parties related to any Underlying Serieies pursuant to the related
Underlying Agreement or side letter agreement to the Grantor Trust Trustee
and
the Depositor and approved by the Depositor, and the Grantor Trust Trustee
will
have no duty or liability for any failure hereunder to determine or prepare
any
Additional Form 8-K Disclosure absent such reporting (other than in the case
where the Grantor Trust Trustee is the reporting party as set forth in Exhibit
D) and approval. To the extent not otherwise required under any related
Underlying Agreement or side letter agreement, the Depositor shall provide
to
the Grantor Trust Trustee any Additional Form 8-K Disclosure for any Servicer
of
an Underlying Series required to be filed on Form 8-K.
(B)
For
so long as the Trust is subject to the Exchange Act reporting requirements,
no
later than the close of business New York City time on the second (2nd) Business
Day
after the occurrence of a Reportable Event (i) the parties set forth
in Exhibit D and parties related to the Underlying Series and required to
provide information pursuant to the Underlying Agreements and certain side
letter agreements shall be required pursuant to Section 3.11(a)(iv) below
or
such side letter agreements to provide to the Grantor Trust Trustee and the
Depositor, to the extent known by a responsible officer thereof, in
XXXXX-compatible format, or in such other form as otherwise agreed upon by
the
Grantor Trust Trustee and the Depositor and such party, the form and substance
of any Form 8-K Disclosure Information, if applicable, and (ii) the Depositor
shall approve, as to form and substance, or disapprove, as the case may be,
the
inclusion of the Form 8-K Disclosure Information on Form 8-K. The Depositor
shall be responsible for any reasonable fees and expenses assessed or incurred
by the Grantor Trust Trustee in connection with including any Form 8-K
Disclosure Information on Form 8-K pursuant to this Section.
(C)
After
preparing the Form 8-K, the Grantor Trust Trustee shall forward electronically
a
copy of the Form 8-K to the Depositor for review no later than noon New York
time on the third (3rd) Business
Day
after the Reportable Event. No later than the close of business New
York City time on the third (3rd) Business
Day
after the Reportable Event, a duly authorized officer of the Depositor shall
sign the Form 8-K and return an electronic or fax copy of such signed Form
8-K
(with an original executed hard copy to follow by overnight mail) to the
Grantor
Trust Trustee. Promptly, but no later than the close of business on
the 3rd Business Day after the Reportable Event, the Depositor shall notify
the
Grantor Trust Trustee in writing (which may be furnished electronically)
of any
changes to or approval of such Form 8-K filed by the Grantor Trust
Trustee. In the absence of receipt of any written changes or
approval, the Grantor Trust Trustee shall be entitled to assume that such
Form
8-K is in final form and the Grantor Trust Trustee may proceed with the filing
of the Form 8-K. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Grantor Trust Trustee
shall
follow the procedures set forth in Section 3.11(a)(v). Promptly (but no later
than one (1) Business Day) after filing with the Commission, the Grantor
Trust
Trustee shall make available on its internet website a final executed copy
of
each Form 8-K filed by the Grantor Trust Trustee. The parties to this
Agreement acknowledge that the performance by the Grantor Trust Trustee of
its
duties under this Section 3.11(a)(ii) related to the timely preparation,
execution and filing of Form 8-K is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
this
Section 3.11(a)(ii). The Grantor Trust Trustee shall have no
liability for any loss, expense, damage, claim arising out of or with respect
to
any failure to properly prepare, execute and/or timely file such Form 8-K,
where
such failure results from the Grantor Trust Trustee’s inability or failure to
receive, on a timely basis, any information from any other party hereto needed
to prepare, arrange for execution or file such Form 8-K, not resulting from
its
own negligence, bad faith or willful misconduct.
(iii)
(A)
Within 90 days after the end of each fiscal year of the Trust or such earlier
date as may be required by the Exchange Act (the “10-K Filing Deadline”) (it
being understood that the fiscal year for the Trust ends on December 31st
of
each year), commencing in March 2008 and thereafter so long as the Trust
is
subject to Exchange Act reporting requirements, the Grantor Trust Trustee
shall
prepare and file on behalf of the Trust a Form 10-K, in form and substance
as
required by the Exchange Act. Each such Form 10-K shall include the
following items, in each case to the extent they have been delivered to the
Grantor Trust Trustee within the applicable time frames set forth in this
Agreement, (I) an annual compliance statement for the Grantor Trust Trustee
and
each master servicer, securities administrator and servicer for the Underlying
Series other than the Underlying 2007 Series, as described under Section
3.09,
(II)(A) the annual report on assessment of compliance with Servicing Criteria
for the Grantor Trust Trustee and each master servicer, securities administrator
and servicer for the Underlying Series other than the Underlying 2007 Series,
as
described under Section 3.10, and (B) if any such report on assessment of
compliance with Servicing Criteria described under Section 3.10 identifies
any
material instance of noncompliance, disclosure identifying such instance
of
noncompliance, or if any such report on assessment of compliance with Servicing
Criteria described under Section 3.10 is not included as an exhibit to such
Form
10-K, disclosure that such report is not included and an explanation why
such
report is not included, (III)(A) the registered public accounting firm
attestation report for the Grantor Trust Trustee and each master servicer,
securities administrator, servicer and custodian for the Underlying Series,
other than the Underlying 2007 Series, that is required to be filed under
Form
10-K, as described under Section 3.10, and (B) if any registered public
accounting firm attestation report described under Section 3.10 identifies
any
material instance of noncompliance, disclosure identifying such instance
of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included,
and
(IV) a Xxxxxxxx-Xxxxx Certification as described in Section 3.11 (a)(iii)(D)
below (provided, however, that the Grantor Trust Trustee, at its discretion,
may
omit from the Form 10-K any annual compliance statement, assessment of
compliance or attestation report that is not required to be filed with such
Form
10-K pursuant to Regulation AB). Any disclosure or information in addition
to
(I) through (IV) above that is required to be included on Form 10-K, including
the Form 10-K filed in connection with the Underlying Series (“Additional Form
10-K Disclosure”) shall be, pursuant to paragraph (B) below, reported by the
parties set forth on Exhibit D and parties related to the Underlying Series
and
required to provide information pursuant to the Underlying Agreements and
the
side letter agreements to the Grantor Trust Trustee and the Depositor and
approved by the Depositor, and the Grantor Trust Trustee will have no duty
or
liability for any failure hereunder to determine or prepare any Additional
Form
10-K Disclosure absent such reporting (other than in the case where the Grantor
Trust Trustee is the reporting party as set forth in Exhibit D) and
approval.
Notwithstanding
anything in this Agreement or the Underlying Agreements to the contrary,
the
Grantor Trustee shall aggregate all information provided by the parties related
to the Underlying Series pursuant to the Underlying Agreements, the side
letter
agreements or as otherwise required to be provided by the Depositor or
incorporated by reference as instructed by the Depositor, to the Depositor
or
the Grantor Trust Trustee, and shall include such information in any Form
10-K
filed pursuant to this Agreement to the extent such information is required
to
be included in such Form 10-K and is received by the Grantor Trust
Trustee.
(B)
No
later than March 15th of each year that the Trust is subject to the Exchange
Act
reporting requirements, commencing in 2008, (i) the parties set forth in
Exhibit
D and parties related to the Underlying Series and required to provide
information pursuant to the Underlying Agreements and certain side letter
agreements shall be required to provide pursuant to Section 3.11(a)(iv) below
to
the Grantor Trust Trustee and the Depositor, to the extent known by a
responsible officer thereof, in XXXXX-compatible format, or in such other
form
as otherwise agreed upon by the Grantor Trust Trustee and the Depositor and
such
party, the form and substance of any Additional Form 10-K Disclosure, if
applicable, and (ii) the Depositor will approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Additional Form 10-K
Disclosure on Form 10-K. To the extent not otherwise required under
any related Underlying Agreement or side letter agreement, the Depositor
shall
provide to the Grantor Trust Trustee any Additional Form 10-K Disclosure
for any
Servicer of an Underlying Series. The Depositor shall be responsible for
any
reasonable fees and expenses assessed or incurred by the Grantor Trust Trustee
in connection with including any Form 10-K Disclosure information on Form
10-K
pursuant to this Section.
(C)
After
preparing the Form 10-K, the Grantor Trust Trustee shall forward electronically
a copy of the Form 10-K to the Depositor for review. Within three (3)
Business Days after receipt of such copy, but no later than March 25th of such
year, the
Depositor shall notify the Grantor Trust Trustee in writing (which may be
furnished electronically) of any changes to or approval of such Form
10-K. In the absence of receipt of any written changes or approval,
the Grantor Trust Trustee shall be entitled to assume that such Form 10-K
is in
final form and the Grantor Trust Trustee may proceed with the filing of the
Form
10-K. No later than the close of business New York City time on the
4th Business Day prior to the 10-K Filing Deadline, a senior officer of the
Depositor shall sign the Form 10-K and return an electronic or fax copy of
such
signed Form 10-K (with an original executed hard copy to follow by overnight
mail) to the Grantor Trust Trustee. If a Form 10-K cannot be filed on
time or if a previously filed Form 10-K needs to be amended, the Grantor
Trust
Trustee will follow the procedures set forth in Section
3.11(a)(v). Promptly (but no later than one (1) Business Day) after
filing with the Commission, the Grantor Trust Trustee shall make available
on
its internet website a final executed copy of each Form 10-K filed by the
Grantor Trust Trustee. The parties to this Agreement acknowledge that
the performance by the Grantor Trust Trustee of its duties under Sections
3.11(a)(iii) and (v) related to the timely preparation, execution and filing
of
Form 10-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under such Sections and Section
3.09 and Section 3.10. The Grantor Trust Trustee shall not have any
liability for any loss, expense, damage, claim arising out of or with respect
to
any failure to properly prepare, execute and/or timely file such Form 10-K,
where such failure results from the Grantor Trust Trustee’s inability or failure
to receive, on a timely basis, any information from any other party hereto
needed to prepare, arrange for execution or file such Form 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
(D)
Each
Form 10-K shall include a certification (the “Xxxxxxxx-Xxxxx Certification”)
required to be included therewith in compliance with Item 601(b)(31)(ii)
of
Regulation S-K, which shall be signed by the Certifying Person and delivered
to
the Grantor Trust Trustee no later than March 15th of each year in which
the
Trust is subject to the reporting requirements of the Exchange
Act. The Grantor Trust Trustee shall provide to the Depositor, as the
Person who signs the Xxxxxxxx-Xxxxx Certification (the “Certifying Person”), by
March 10th of each year in which the Trust is subject to the reporting
requirements of the Exchange Act and otherwise within a reasonable period
of
time upon request, a certification (a “Back-Up Certification”), in the form
attached hereto as Exhibit B, upon which the Certifying Person, the entity
for
which the Certifying Person acts as an officer, and such entity’s officers,
directors and Affiliates (collectively with the Certifying Person,
“Certification Parties”) can reasonably rely. A senior officer of the
Depositor shall serve as the Certifying Person on behalf of the
Trust.
(iv) With
respect to any
Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or any Form
8-K
Disclosure Information (collectively, the “Additional Disclosure”) relating to
the Trust Fund and the Underlying Series, the Grantor Trust Trustee’s obligation
to include such Additional Information in the applicable Exchange Act report
is
subject to receipt from the entity that is indicated in Exhibit D as the
responsible party for providing that information, if other than the Grantor
Trust Trustee, as and when required as described in Section 3.11(a)(i) through
(iii) above. Such Additional Disclosure shall be accompanied by a
notice substantially in the form of Exhibit E. Each of the Sponsor,
the Grantor Trust Trustee and the Depositor hereby agrees to notify and provide
to the extent known to the Sponsor, the Grantor Trust Trustee and the Depositor
all Additional Disclosure relating to the Trust Fund, with respect to which
such
party is indicated in Exhibit E as the responsible party for providing that
information. The Depositor shall be responsible for any reasonable
fees and expenses assessed or incurred by the Grantor Trust Trustee in
connection with including any Additional Disclosure information pursuant
to this
Section.
So
long
as the Depositor is subject to the reporting requirements of the Exchange Act
with respect to the Trust Fund, the Grantor Trust Trustee shall notify the
Depositor of any bankruptcy or receivership with respect to the Grantor Trust
Trustee or of any proceedings of the type described under Item 1117 of
Regulation AB that have occurred as of the related Due Period, together with
a
description thereof, no later than the date on which such information is
required of other parties hereto as set forth under this Section
3.11. In addition, the Grantor Trust Trustee shall notify the
Depositor of any affiliations or relationships that develop after the Closing
Date between the Grantor Trust Trustee and the Depositor or the Sponsor of
the
type described under Item 1119 of Regulation AB, together with a description
thereof, no later than the date on which such information is required of other
parties hereto as set forth under this Section 3.11. Should the identification
of any of the Depositor or the Sponsor change, the Depositor shall promptly
notify the Grantor Trust Trustee.
(v)
(A)
On or prior to January 30th of the first year in which the Grantor Trust Trustee
is able to do so under applicable law, the Grantor Trust Trustee shall prepare
and file a Form 15 relating to the automatic suspension of reporting in respect
of the Trust under the Exchange Act.
(B)
In
the event that the Grantor Trust Trustee is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth
in
this Agreement or for any other reason, the Grantor Trust Trustee shall promptly
notify the Depositor. In the case of Form 10-D and 10-K, the
Depositor and the Grantor Trust Trustee shall cooperate to prepare and file
a
Form 12b-25 and a 10-DA and 10-KA as applicable, pursuant to Rule 12b-25 of
the
Exchange Act. In the case of Form 8-K, the Grantor Trust Trustee
will, upon receipt of all required Form 8-K Disclosure Information and upon
the
approval and direction of the Depositor, include such disclosure information
on
the next Form 10-D. In the event that any previously filed Form 8-K,
10-D or 10-K needs to be amended, and such amendment relates to any Additional
Disclosure, the Grantor Trust Trustee shall notify the Depositor and the parties
affected thereby and such parties will cooperate to prepare any necessary Form
8-K/A, 10-DA or 10-KA. Any Form 15, Form 12b-25 or any amendment to
Form 8-K, 10-D or 10-K shall be signed by a duly authorized officer of the
Depositor. The parties hereto acknowledge that the performance by the
Depositor and the Grantor Trust Trustee of their respective duties under this
Section 3.11(a)(v) related to the timely preparation, execution and filing
of
Form 15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is contingent
upon the Depositor timely performing its duties under this
Section. The Grantor Trust Trustee shall not have any liability for
any loss, expense, damage, claim arising out of or with respect to any failure
to properly prepare, execute and/or timely file any such Form 15, Form 12b-25
or
any amendments to Form 8-K, 10-D or 10-K, where such failure results from the
Grantor Trust Trustee’s inability or failure to receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 15, Form 12b-25 or any amendments to Form 8-K, 10-D or 10-K,
not resulting from its own negligence, bad faith or willful
misconduct.
The
Depositor agrees to promptly furnish to the Grantor Trust Trustee, from time
to
time upon request, such further information, reports and financial statements
within its control related to this Agreement and the Underlying Securities
as
the Grantor Trust Trustee reasonably deems appropriate to prepare and file
all
necessary reports with the Commission. The Grantor Trust Trustee shall have
no
responsibility to file any items other than those specified in this Section
3.11; provided, however, the Grantor Trust Trustee shall cooperate with the
Depositor in connection with any additional filings with respect to the Trust
Fund as the Depositor deems necessary under the Exchange Act. Fees
and expenses incurred by the Grantor Trust Trustee in connection with this
Section 3.11 shall not be reimbursable from the Trust Fund.
(b) The
Grantor Trust Trustee shall indemnify and hold harmless the Depositor and each
of its officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon
a
breach of the Grantor Trust Trustee’s obligations under Sections 3.09, 3.10 and
3.11 or the Grantor Trust Trustee’s negligence, bad faith or willful misconduct
in connection therewith. In addition, the Grantor Trust Trustee shall indemnify
and hold harmless the Depositor and each of its respective officers, directors
and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in any
Back-Up Certification, any Annual Statement of Compliance, any Assessment of
Compliance or any Additional Disclosure provided by the Grantor Trust Trustee
on
its behalf pursuant to Section 3.09, 3.10 or 3.11 (the “Grantor Trust Trustee
Information”), or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
provided, by way of clarification, that this paragraph shall be construed solely
by reference to the Grantor Trust Trustee Information and not to any other
information communicated in connection with the Grantor Trust Certificates,
without regard to whether the Grantor Trust Trustee Information or any portion
thereof is presented together with or separately from such other
information.
The
Depositor shall indemnify and hold harmless the Grantor Trust Trustee and each
of its officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon
a
breach of the obligations of the Depositor under Sections 3.09, 3.10 and 3.11
or
the Depositor’s negligence, bad faith or willful misconduct in connection
therewith. In addition, the Depositor shall indemnify and hold harmless the
Grantor Trust Trustee and each of its respective officers, directors and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other
costs
and expenses arising out of or based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any Additional Disclosure
provided by the Depositor that is required to be filed pursuant to this Section
3.11 (the “Depositor Information”), or (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make
the statements therein, in light of the circumstances in which they were made,
not misleading; provided, by way of clarification, that this paragraph shall
be
construed solely by reference to the Depositor Information that is required
to
be filed and not to any other information communicated in connection with the
Grantor Trust Certificates, without regard to whether the Depositor Information
or any portion thereof is presented together with or separately from such other
information.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor or the Grantor Trust Trustee, as applicable, then the
defaulting party, in connection with any conduct for which it is providing
indemnification under this Section 3.11(b), agrees that it shall contribute
to
the amount paid or payable by the other parties as a result of the losses,
claims, damages or liabilities of the other party in such proportion as is
appropriate to reflect the relative fault and the relative benefit of the
respective parties.
The
indemnification provisions set forth in this Section 3.11(b) shall survive
the
termination of this Agreement or the termination of any party to this
Agreement.
(c) Failure
of the Grantor Trust Trustee to comply with this Section 3.11 (including with
respect to the time frames required in this Section) which failure results
in a
failure to timely file the related Form 10-K, shall, upon written notice from
the Depositor, constitute a default and the Depositor shall, in addition to
whatever rights it may have under this Agreement and at law or equity or to
damages, including injunctive relief and specific performance, upon notice
immediately terminate all of the rights and obligations of the Grantor Trust
Trustee under this Agreement and in and to the Underlying Securities and the
proceeds thereof without compensating the Grantor Trust Trustee for the same
(but subject to the Grantor Trust Trustee’s right to reimbursement of all
amounts for which it is entitled to be reimbursed prior to the date of
termination). This paragraph shall supersede any other provision in
this Agreement or any other agreement to the contrary. In connection with the
termination of the Grantor Trust Trustee pursuant to this Section 3.11(c),
the
Grantor Trust Trustee shall be entitled to reimbursement of all costs and
expenses associated with such termination. Notwithstanding anything
to the contrary in this Agreement, no default by the Grantor Trust Trustee
shall
have occurred with respect to any failure to properly prepare, execute and/or
timely file any report on Form 8-K, Form 10-D or Form 10-K, any Form 15 or
Form
12b-25 or any amendments to Form 8-K, 10-D or 10-K, where such failure results
from the Grantor Trust Trustee’s inability or failure to receive, on a timely
basis, any information from any other party hereto needed to prepare, arrange
for execution or file any such report, Form or amendment, and does not result
from its own negligence, bad faith or willful misconduct.
(d) This
Section 3.11 may be amended without the consent of the Grantor Trust
Certificateholders.
(e) Any
report, notice or notification to be delivered by the Grantor Trust Trustee
to
the Depositor pursuant to this Section 3.11, may be delivered via email to
XxxXXXxxxxxxxxxxxx@xxxx.xxx or, in the case of a notification, telephonically
by
calling Reg AB Compliance Manager at (000) 000-0000.
ARTICLE
IV
THE
GRANTOR TRUST CERTIFICATES
Section
4.01. The
Grantor Trust Certificates.
(a) The
Depository, the Depositor and the Grantor Trust Trustee have entered into a
letter agreement dated as of August 31, 2007 (the “Depository
Agreement”). Except as provided in Subsection 4.01(b), the Grantor
Trust Certificates shall at all times remain registered in the name of the
Depository or its nominee and at all times: (i) registration of such
Grantor Trust Certificates may not be transferred by the Grantor Trust Trustee
except to a successor to the Depository; (ii) ownership and transfers of
registration of such Grantor Trust Certificates on the books of the Depository
shall be governed by applicable rules established by the Depository; (iii)
the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants; (iv) the Grantor Trust Trustee shall deal with
the
Depository as representative of the Grantor Trust Certificate Owners for
purposes of exercising the rights of Grantor Trust Certificateholders under
this
Agreement, and requests and directions for and votes of such representative
shall not be deemed to be inconsistent if they are made with respect to
different Grantor Trust Certificate Owners; and (v) the Grantor Trust Trustee
may rely and shall be fully protected in relying upon information furnished
by
the Depository with respect to its Depository Participants.
All
transfers by Grantor Trust Certificate Owners of Grantor Trust Certificates
shall be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Grantor Trust Certificate
Owners. Each Depository Participant shall only transfer Grantor Trust
Certificates of Grantor Trust Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository’s normal
procedures.
(b) If
(i)(A)
the Depositor advises the Grantor Trust Trustee in writing that the Depository
is no longer willing or able to properly discharge its responsibilities as
Depository and (B) the Grantor Trust Trustee or the Depositor is unable to
locate a qualified successor within 30 days or (ii) after the occurrence and
continuation of a default hereunder, the Grantor Trust Certificate Owners of
not
less than 51% of the Percentage Interests of the Grantor Trust Certificates
advise the Grantor Trust Trustee and the Depository in writing through the
depository participants that the continuation of a book-entry system with
respect to the Grantor Trust Certificates through the Depository (or its
successor) is no longer in the best interests of the Grantor Trust Certificate
Owners, then the Grantor Trust Trustee shall request that the Depository notify
all Grantor Trust Certificate Owners of the occurrence of any such event and
of
the availability of definitive, fully registered Grantor Trust Certificates
(the
“Definitive Grantor Trust Certificates”) to Grantor Trust Certificate Owners
requesting the same. Upon surrender to the Grantor Trust Trustee of
the Grantor Trust Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Grantor Trust Trustee
shall issue the Definitive Grantor Trust Certificates. Neither the
Depositor nor the Grantor Trust Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions.
(c) The
Grantor Trust Certificates shall be substantially in the form set forth in
Exhibit A hereto. The Grantor Trust Certificates shall be executed by
manual signature on behalf of the Grantor Trust Trustee in its capacity as
Grantor Trust Trustee hereunder by an authorized officer. Grantor
Trust Certificates bearing the manual or facsimile signatures of individuals
who
were at any time the proper officers of the Grantor Trust Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased
to
hold such offices prior to the authentication and delivery of such Grantor
Trust
Certificates or did not hold such offices at the date of such Grantor Trust
Certificates. No Grantor Trust Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless there appears
on such Grantor Trust Certificate a certificate of authentication substantially
in the form provided for herein executed by the Grantor Trust Trustee by manual
signature, and such certificate upon any Grantor Trust Certificate shall be
conclusive evidence, and the only evidence, that such Grantor Trust Certificate
has been duly authenticated and delivered hereunder. All Grantor
Trust Certificates shall be dated the date of their authentication.
Pending
the preparation of Definitive Grantor Trust Certificates, the Grantor Trust
Trustee may sign and authenticate temporary Grantor Trust Certificates that
are
printed, lithographed or typewritten, in authorized denominations for Grantor
Trust Certificates, substantially of the tenor of the Definitive Grantor Trust
Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers or
authorized signatories executing such Grantor Trust Certificates may determine,
as evidenced by their execution of such Grantor Trust
Certificates. If temporary Grantor Trust Certificates are issued, the
Depositor will cause Definitive Grantor Trust Certificates to be prepared
without unreasonable delay. After the preparation of Definitive
Grantor Trust Certificates, the temporary Grantor Trust Certificates shall
be
exchangeable for Definitive Grantor Trust Certificates upon surrender of the
temporary Grantor Trust Certificates at the office of the Grantor Trust Trustee,
without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Certificates, the Grantor Trust Trustee shall sign and
the
Certificate Registrar shall authenticate and deliver in exchange therefor a
like
aggregate principal amount, in authorized denominations, of Definitive Grantor
Trust Certificates. Until so exchanged, such temporary Grantor Trust
Certificates shall in all respects be entitled to the same benefits as
Definitive Grantor Trust Certificates.
(d) Each
of
the Grantor Trust Certificates will be initially registered as a single Grantor
Trust Certificate held by a nominee of the Depository, and beneficial interests
will be held by investors through the book-entry facilities of the Depository
in
minimum denominations of $100,000 and increments of $1 in excess thereof. The
Certificates shall be issued in the aggregate dollar denominations as set forth
in the following table:
|
Class
|
Current
Principal Amount
|
|
I-A-1
|
$ 330,443,000.00
|
|
I-A-2
|
$
82,611,131.89
|
|
II-A-1
|
$ 160,958,000.00
|
|
II-A-2
|
$
40,239,014.56
|
Section
4.02. Registration
of Transfer and Exchange of Grantor Trust Certificates.
(a) At
all
times during the term of this Agreement, the Grantor Trust Trustee shall
maintain at its Corporate Trust Office a register (the “Certificate Register”)
in which, subject to such reasonable regulations as the Grantor Trust Trustee
may prescribe, the Certificate Register shall provide for the registration
of
Grantor Trust Certificates and of transfers and exchanges of Grantor Trust
Certificates as herein provided. The Depositor shall have the right
to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Grantor
Trust Trustee as to the information set forth in the Certificate
Register.
The
Depositor and every Grantor Trust Certificateholder and Grantor Trust
Certificate Owner, by receiving and holding a Grantor Trust Certificate or
an
interest therein, agrees with the Grantor Trust Trustee that the
Grantor Trust Trustee shall not be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Grantor Trust
Certificateholders hereunder, regardless of the source from which such
information was derived.
(b) Subject
to the preceding subsections, upon surrender for registration of transfer of
any
Grantor Trust Certificate at the Corporate Trust Office of the Grantor Trust
Trustee, the Grantor Trust Trustee shall execute, authenticate and deliver,
in
the name of the designated transferee or transferees, one or more new Grantor
Trust Certificates of a like aggregate Percentage Interest.
(c) At
the
option of any Holder, its Grantor Trust Certificates may be exchanged for other
Grantor Trust Certificates related to the related Sub-Trust of authorized
denominations of a like aggregate Percentage Interest, upon surrender of the
Grantor Trust Certificates to be exchanged at the Corporate Trust Office of
the
Grantor Trust Trustee. Whenever any Grantor Trust Certificates are so
surrendered for exchange, the Grantor Trust Trustee shall execute, authenticate
and deliver the Grantor Trust Certificates which the Grantor Trust
Certificateholder making the exchange is entitled to receive.
(d) Every
Grantor Trust Certificate presented or surrendered for transfer or exchange
shall (if so required by the Grantor Trust Trustee) be duly endorsed by, or
be
accompanied by a written instrument of transfer in the form satisfactory to
the
Grantor Trust Trustee duly executed by, the Holder thereof or his attorney
duly
authorized in writing, and shall further be accompanied by the information
required to be provided to the Grantor Trust Trustee for WHFIT reporting
purposes pursuant to Section 3.06 hereof, including the status of the proposed
transferee as a “middleman” as defined by the WHFIT Regulations and, in the case
of a transfer pursuant to a sale, the price, the amount of proceeds and the
date
of sale of such Grantor Trust Certificate or interest therein.
(e) No
service charge shall be made for any transfer or exchange of Grantor Trust
Certificates, but the Grantor Trust Trustee 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 Grantor Trust
Certificates.
(f) All
Grantor Trust Certificates surrendered for transfer and exchange shall be
destroyed by the Grantor Trust Trustee without liability on its
part.
Section
4.03. Mutilated,
Destroyed, Lost or Stolen Grantor Trust Certificates.
If
(i)
any mutilated Grantor Trust Certificate is surrendered to the Grantor Trust
Trustee, or the Grantor Trust Trustee receives evidence to its satisfaction
of
the destruction, loss or theft of any Grantor Trust Certificate, and (ii)
(except in the case of a mutilated Grantor Trust Certificate) there is delivered
to the Grantor Trust Trustee such agreement, security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Grantor Trust Trustee that such Grantor Trust Certificate has been
acquired by a bona fide purchaser, the Grantor Trust Trustee shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Grantor Trust Certificate, a new Grantor Trust
Certificate of like tenor and Percentage Interest but bearing a number not
contemporaneously outstanding. Upon the issuance of any new Grantor
Trust Certificate under this Section, the Grantor Trust Trustee may require
the
payment by the Grantor Trust Certificateholder of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in relation
thereto. Any duplicate Grantor Trust Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership
in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Grantor Trust Certificate shall be found at any time.
Section
4.04. Persons
Deemed Owners.
Prior
to
due presentment of a Grantor Trust Certificate for registration of transfer,
the
Depositor, the Grantor Trust Trustee and any agent of the Depositor or the
Grantor Trust Trustee may treat the Person in whose name any Grantor Trust
Certificate is registered as the owner of such Grantor Trust Certificate for
the
purpose of receiving distributions pursuant to Section 3.05 and for all other
purposes whatsoever, and none of the Depositor, the Grantor Trust Trustee,
or
any agent of the Depositor or the Grantor Trust Trustee shall be affected by
notice to the contrary.
ARTICLE
V
THE
GRANTOR TRUST TRUSTEE
Section
5.01. Duties
of Grantor Trust Trustee.
(a) Upon
receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments which are specifically required to be
furnished to the Grantor Trust Trustee pursuant to any provision of this
Agreement, the Grantor Trust Trustee shall examine them to determine whether
they are in the form required by this Agreement and the related Underlying
Agreement; provided, however, that the Grantor Trust Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished
hereunder; provided, further, that the Grantor Trust Trustee shall not be
responsible for the accuracy or verification of any calculation provided to
it
pursuant to this Agreement. The Grantor Trust Trustee shall notify
the Grantor Trust Certificateholders and the Rating Agencies of any such
documents which do not materially conform to the requirements of this Agreement
in the event that the Grantor Trust Trustee, after so requesting of the party
required to deliver the same, does not receive satisfactorily corrected
documents or a satisfactory explanation regarding any such
nonconformities.
The
Grantor Trust Trustee shall forward or cause to be forwarded or make available,
as applicable, in a timely fashion the notices, reports and statements required
to be forwarded by the Grantor Trust Trustee pursuant to Sections 3.01, 3.02,
3.06 and 7.01.
(b) No
provision of this Agreement shall be construed to relieve the Grantor Trust
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) The
duties and obligations of the Grantor Trust Trustee shall be determined solely
by the express provisions of this Agreement, the Grantor Trust Trustee shall
not
be liable except for the performance of its duties and obligations as are
specifically set forth in this Agreement, no implied covenants or obligations
shall be read into this Agreement against the Grantor Trust Trustee and, in
the
absence of bad faith on the part of the Grantor Trust Trustee, the Grantor
Trust
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Grantor Trust Trustee and conforming to the requirements of
this Agreement;
(ii) The
Grantor Trust Trustee shall not be liable in its individual capacity for an
error of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Grantor Trust Trustee unless it shall be proved that the Grantor
Trust Trustee was negligent in ascertaining the pertinent facts;
(iii) The
Grantor Trust Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Majority Grantor Trust Certificateholders in accordance with
the terms of this Agreement, as to the time, method and place of conducting
any
proceeding for any remedy available to the Grantor Trust Trustee, or exercising
any trust or other power conferred upon the Grantor Trust Trustee under this
Agreement;
(iv) The
Grantor Trust Trustee shall not in any way be liable by reason of any
insufficiency in any Account held by or in the name of Grantor Trust Trustee
unless it is determined by a court of competent jurisdiction that the Grantor
Trust Trustee’s gross negligence or willful misconduct was the primary cause of
such insufficiency (except to the extent that the Grantor Trust Trustee is
obligor and has defaulted thereon);
(v) Anything
in this Agreement to the contrary notwithstanding, in no event shall the Grantor
Trust Trustee be liable for special, indirect or consequential loss or damage
of
any kind whatsoever (including but not limited to lost profits), even if the
Grantor Trust Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action;
(vi) Neither
the Depositor nor the Grantor Trust Trustee shall be responsible for the acts
or
omissions of the other, it being understood that this Agreement shall not be
construed to render them partners, joint venturers or agents of one
another;
(vii) The
Grantor Trust Trustee shall not be required to expend or risk its own funds
or
otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
provided that this provision shall not be deemed to abrogate the
responsibilities undertaken by the Grantor Trust Trustee hereunder to perform
routine administrative duties in accordance with the terms of this
Agreement;
(viii) The
Grantor Trust Trustee shall not be deemed to have notice of any fact or
circumstance upon the occurrence of which it may be required to take action
hereunder unless a Responsible Officer of the Grantor Trust Trustee has actual
knowledge of such event, fact or circumstance or unless written notice of any
such event is received by the Grantor Trust Trustee at its Corporate Trust
Office;
(ix) No
provision in this Agreement shall require the Grantor Trust Trustee to expend
or
risk its own funds or otherwise incur any personal financial liability in the
performance of any of its duties as Grantor Trust Trustee hereunder, or in
the
exercise of any of its rights or powers, if the Grantor Trust Trustee shall
have
reasonable grounds for believing that repayment of funds or adequate indemnity
against such risk or liability is not reasonably assured to it; provided that
this provision shall not be deemed to abrogate the responsibilities undertaken
by the Grantor Trust Trustee hereunder to perform routine administrative duties
in accordance with the terms hereof; and
(x) Except
for those actions that the Grantor Trust Trustee is required to take hereunder,
the Grantor Trust Trustee shall not have any obligation or liability to take
any
action or to refrain from taking any action hereunder in the absence of written
direction as provided hereunder.
Section
5.02. Certain
Matters Affecting the Grantor Trust Trustee.
Except
as
otherwise provided in Section 5.01:
(i) The
Grantor Trust Trustee may rely and shall be protected in acting or refraining
from acting in reliance on any resolution, Officer’s Certificate, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) The
Grantor Trust Trustee may consult with counsel and any advice of such counsel
or
any Opinion of Counsel shall be full and complete authorization and protection
with respect to any action taken or suffered or omitted by it hereunder in
good
faith and in accordance with such advice or Opinion of Counsel;
(iii) The
Grantor Trust Trustee shall not be under any obligation to exercise any of
the
trusts or powers vested in it by this Agreement, other than its obligation
to
give notices pursuant to this Agreement, or to institute, conduct or defend
any
litigation hereunder or in relation hereto at the request, order or direction
of
any of the Grantor Trust Certificateholders with respect to any related
Sub-Trust, pursuant to the provisions of this Agreement, unless such Grantor
Trust Certificateholders shall have offered to the Grantor Trust Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(iv) The
Grantor Trust Trustee shall not be liable in its individual capacity for any action taken, suffered
or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Agreement;
(v) The
Grantor Trust Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, but the Grantor Trust Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Grantor Trust Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to the extent reasonable under the
circumstances to examine the books, records and premises of such Person,
personally or by agent or attorney;
(vi) The
Grantor Trust Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and shall not be liable for the default or misconduct of any such
agents or attorneys if selected with reasonable care; and
(vii) The
right
of the Grantor Trust Trustee to perform any discretionary act enumerated in
this
Agreement shall not be construed as a duty, and the Grantor Trust Trustee shall
not be accountable for other than its negligence or willful misconduct in the
performance of any such act.
Section
5.03. Grantor
Trust Trustee Not Liable for Grantor Trust Certificates or Underlying
Securities.
The
recitals contained herein and in the Grantor Trust Certificates (other than
the
statements attributed to, and the representations and warranties of, the Grantor
Trust Trustee in Article II and the signature and countersignature of the
Certificate Registrar on the Grantor Trust Certificates) shall be taken as
the
statements of the Depositor, and the Grantor Trust Trustee shall not have any
responsibility for their correctness. The Grantor Trust Trustee does not makes
any representation as to the validity or sufficiency of this Agreement (other
than as specifically set forth in Section 2.03(b)) or of the Grantor Trust
Certificates (other than that the Grantor Trust Certificates shall be duly
and
validly executed and authenticated by it) or of the Underlying Securities or
any
related document. Except as otherwise provided herein, the Grantor
Trust Trustee shall not be accountable for the use or application by the
Depositor of any of the Grantor Trust Certificates or of the proceeds of such
Grantor Trust Certificates, or for the use or application of any funds paid
to
the Depositor in respect of the assignment and delivery of the Underlying
Securities.
Section
5.04. Grantor
Trust Trustee May Own Grantor Trust Certificates.
The
Grantor Trust Trustee in its individual capacity or in any capacity other than
as Grantor Trust Trustee hereunder may become the owner or pledgee of any
Grantor Trust Certificates with the same rights it would have if it were not
Grantor Trust Trustee and may otherwise deal with the parties
hereto.
Section
5.05. Grantor
Trust Trustee’s Fees and Expenses.
(a) The
Grantor Trust Trustee shall be reimbursed for all expenses and fees incurred
in
connection with this agreement by Bear, Xxxxxxx.
(b) The
Grantor Trust Trustee and any director, officer, employee or agent of the
Grantor Trust Trustee shall be entitled to be indemnified and held harmless
by
Bear, Xxxxxxx against any loss, liability or expense (including, without
limitation, costs and expenses of litigation, and of investigation, counsel
fees
and expenses, damages, judgments, amounts paid in settlement and out-of-pocket
expenses) arising out of, or incurred in connection with this Agreement, the
Underlying Agreements, the Underlying Securities and the Grantor Trust
Certificates, the exercise and performance of any of the powers and duties
of
the Grantor Trust Trustee hereunder or thereunder; provided that neither the
Grantor Trust Trustee nor any of the other above specified Persons shall be
entitled to indemnification pursuant to this Section 5.05(b) for any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of the Grantor Trust Trustee’s obligations and
duties hereunder, or by reason of reckless disregard of such obligations or
duties.
The
provisions of this Section 5.05 shall survive any resignation or removal of
the
Grantor Trust Trustee and appointment of a successor Grantor Trust
Trustee.
Section
5.06. Eligibility
Requirements for Grantor Trust Trustee.
The
Grantor Trust Trustee and any successor Grantor Trust Trustee shall during
the
entire duration of this Agreement be a state bank or trust company or a national
banking association organized and doing business under the laws of such state
or
the United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital, and surplus and undivided profits
of at
least $50,000,000 (or shall be a member of a bank holding system, the combined
capital and surplus of which is at least $50,000,000) and subject to supervision
or examination by federal or state authority. If the Grantor Trust Trustee
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the
purposes of this Section the combined capital and surplus of such corporation
shall be deemed to be its total equity capital (combined capital and surplus)
as
set forth in its most recent report of condition so published. The
Grantor Trust Trustee shall at all times meet the requirements of Section
26(a)(1) of the Investment Company Act and shall in no event be an Affiliate
of
the Depositor or of any Person involved in the organization or operation of
the
Depositor. In case at any time the Grantor Trust Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Grantor Trust Trustee shall resign immediately in the manner and with the effect
specified in Section 5.07.
Section
5.07. Resignation
and Removal of the Grantor Trust Trustee.
(a) The
Grantor Trust Trustee may at any time resign and be discharged from the Trust
hereby created by giving written notice thereof to the Depositor and the Grantor
Trust Certificateholders. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor Grantor Trust Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
each of the resigning Grantor Trust Trustee and the successor Grantor Trust
Trustee. If no successor Grantor Trust Trustee shall have been so appointed
and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Grantor Trust Trustee may petition any court of
competent jurisdiction for the appointment of a successor Grantor Trust
Trustee.
(b) If
at any
time the Grantor Trust Trustee shall cease to be eligible in accordance with
the
provisions of Section 5.06 and shall fail to resign after written request
therefor by the Depositor or the Majority Grantor Trust Certificateholders,
or
if at any time the Grantor Trust Trustee shall become incapable of acting,
or
shall be adjudged a bankrupt or insolvent, or a receiver of the Grantor Trust
Trustee or of its property shall be appointed, or any public officer shall
take
charge or control of the Grantor Trust Trustee or of its property or affairs
for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
shall promptly remove the Grantor Trust Trustee and appoint a successor Grantor
Trust Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to each of the Grantor Trust Trustee so removed and one
copy
to the successor Grantor Trust Trustee.
(c) Majority
Grantor Trust Certificateholders may at any time remove the Grantor Trust
Trustee and appoint a successor Grantor Trust Trustee by written instrument
or
instruments, in quadruplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to
the
Depositor, the Grantor Trust Trustee so removed and the successor so
appointed. A copy of such instrument shall be delivered to the
Grantor Trust Certificateholders by the Depositor. All reasonable
out-of-pocket costs and expenses incurred in connection with such removal and
replacement of the Grantor Trust Trustee, including without limitation,
reasonable attorneys fees and expenses, shall be borne by the party requesting
such action.
(d) No
resignation or removal of the Grantor Trust Trustee and appointment of a
successor Grantor Trust Trustee pursuant to any of the provisions of this
Section shall become effective except upon appointment of and acceptance of
such
appointment by the successor Grantor Trust Trustee as provided in Section 5.08
and (ii) no entity may be appointed as a successor Grantor Trust Trustee if
such
appointment would result in a withdrawal or downgrading of any then current
rating assigned to the Grantor Trust Certificates by the Rating
Agencies.
Section
5.08. Successor
Grantor Trust Trustee.
(a) Any
successor Grantor Trust Trustee appointed as provided in Section 5.07 shall
execute, acknowledge and deliver to the Depositor, the Grantor Trust
Certificateholders and to its predecessor Grantor Trust Trustee an instrument
accepting such appointment hereunder. The resignation or removal of the
predecessor Grantor Trust Trustee shall then become effective and such successor
Grantor Trust Trustee, without any further act, deed or conveyance, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Grantor Trust
Trustee o herein. The predecessor Grantor Trust Trustee shall after
payment of its outstanding fees and expenses promptly deliver to the successor
Grantor Trust Trustee the Underlying Securities and related documents and
statements held by it hereunder, and the Depositor and the predecessor Grantor
Trust Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor Grantor Trust Trustee all such rights, powers,
duties and obligations.
(b) No
successor Grantor Trust Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Grantor Trust
Trustee shall be eligible under the provisions of Section 5.06.
(c) Upon
acceptance of appointment by a successor Grantor Trust Trustee as provided
in
this Section, the successor Grantor Trust Trustee shall mail notice of the
succession of such Grantor Trust Trustee hereunder to all Grantor Trust
Certificateholders at their addresses as shown in the Certificate Register
and
to the Rating Agencies. The Depositor shall cause such notice to be
mailed at the expense of the Depositor.
(d) Notwithstanding
anything in this Agreement or the Underlying Agreements to the contrary, in
the
event that the paying agent for the Underlying Series resigns or is terminated,
the Grantor Trust Trustee (if it was such paying agent) shall resign as Grantor
Trust Trustee under this Agreement and the Depositor may appoint the successor
paying agent as the successor to the Grantor Trust Trustee
hereunder.
Section
5.09. Merger
or Consolidation of Grantor Trust Trustee.
Any
state
bank or trust company or national banking association into which the Grantor
Trust Trustee may be merged or converted or with which it may be consolidated
or
any state bank or trust company or national banking association resulting from
any merger, conversion or consolidation to which the Grantor Trust Trustee
shall
be a party, or any state bank or trust company or national banking association
succeeding to all or substantially all of the corporate trust business of the
Grantor Trust Trusteeshall be the successor of the Grantor Trust Trustee
hereunder, provided such state bank or trust company or national banking
association shall be eligible under the provisions of Section 5.06. Such
succession shall be valid without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Grantor Trust Trustee shall mail notice
of any such merger or consolidation to the Depositor and to the Grantor Trust
Certificateholders at their address as shown in the Certificate
Register.
Section
5.10. Appointment
of Co-Grantor Trust Trustee or Separate Grantor Trust Trustee.
(a) Notwithstanding
any other provisions hereof, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Trust or property
constituting the same may at the time be located, the Depositor and the Grantor
Trust Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons approved by the Grantor Trust
Trustee and the Depositor to act as co-Grantor Trust Trustee or co-Grantor
Trust
Trustees, jointly with the Grantor Trust Trustee, or separate Grantor Trust
Trustee or separate Grantor Trust Trustees, of all or any part of the Trust,
and
to vest in such Person or Persons, in such capacity, such title to the Trust,
or
any part thereof, and, subject to the other provisions of this Section 5.10,
such powers, duties, obligations, rights and trusts as the Depositor and the
Grantor Trust Trustee may consider necessary or desirable. No
co-Grantor Trust Trustee or separate Grantor Trust Trustee hereunder shall
be
required to meet the terms of eligibility as a successor Grantor Trust Trustee
under Section 5.06 hereunder; provided, that if the co-Grantor Trust Trustee
or
separate Grantor Trust Trustee does not meet such eligibility standards, the
Grantor Trust Trustee shall remain liable for its actions hereunder, and no
notice to Grantor Trust Certificateholders of the appointment of co-Grantor
Trust Trustee(s) or separate Grantor Trust Trustee(s) shall be required under
Section 5.08 hereof.
(b) If
the
Depositor shall not have joined in such appointment within 15 days after the
receipt by it of a written request so to do, the Grantor Trust Trustee shall
have the power to make such appointment without the Depositor.
(c) In
the
case of any appointment of a co-Grantor Trust Trustee or separate Grantor Trust
Trustee pursuant to this Section 5.10, all rights, powers, duties and
obligations conferred or imposed upon the Grantor Trust Trustee and required
to
be conferred on such co-Grantor Trust Trustee shall be conferred or imposed
upon
and exercised or performed jointly by the Grantor Trust Trustee and such
separate Grantor Trust Trustee or co-Grantor Trust Trustee jointly, except
to
the extent that under any law of any jurisdiction in which any particular act
or
acts are to be performed (whether as Grantor Trust Trustee hereunder or as
successor to the Master Servicer hereunder), the Grantor Trust Trustee shall
be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed by such separate Grantor Trust Trustee or co-Grantor Trust Trustee
at the direction of the Grantor Trust Trustee.
(d) Any
notice, request or other writing
given to the Grantor Trust Trustee shall be deemed to have been given to each
of
the then separate Grantor Trust Trustees and co-Grantor Trust Trustees, as
effectively as if given to each of them. Every instrument appointing
any separate
Grantor Trust Trustee or co-Grantor Trust Trustee shall refer to this Agreement
and the conditions of this Article V.
Each
separate Grantor Trust Trustee and
co-Grantor Trust 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 Grantor Trust Trustee or separately, as may be provided
therein, subject to all the provisions of this Agreement, specifically including
every provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Grantor Trust Trustee.
Every such instrument
shall
be filed with the Grantor Trust Trustee.
(e) To
the
extent not prohibited by law, any separate Grantor Trust Trustee or co-Grantor
Trust Trustee may, at any time, request the Grantor Trust Trustee, its agent
or
attorney-in-fact, with full power and authority, to do any lawful act under
or
with respect to this Agreement on its behalf and in its name. If any
separate Grantor Trust Trustee or co-Grantor Trust 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 Grantor Trust
Trustee, to the extent permitted by law, without the appointment of a new or
successor Grantor Trust Trustee.
(f) No
Grantor Trust Trustee under this Agreement shall be personally liable by reason
of any act or omission of another Grantor Trust Trustee under this Agreement.
The Depositor and the Grantor Trust Trustee acting jointly may at any time
accept the resignation of or remove any separate Grantor Trust Trustee or
co-Grantor Trust Trustee.
ARTICLE
VI
THE
DEPOSITOR
Section
6.01. Liability
of the Depositor.
The
Depositor shall be liable in accordance herewith only to the extent of the
respective obligations specifically imposed upon and undertaken by the Depositor
herein.
Section
6.02. Merger,
Consolidation or Conversion of the Depositor.
Subject
to the following paragraph, the Depositor will keep in full effect its
existence, rights and franchises as a corporation under the laws of the
jurisdiction of its incorporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction
in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement and the Grantor Trust Certificates and to
perform its duties under this Agreement.
The
Depositor may be merged or consolidated with or into any Person, or transfer
all
or substantially all of its assets to any Person, in which case any Person
resulting from any merger or consolidation to which the Depositor shall be
a
party, or any Person succeeding to the business of the Depositor, shall be
the
successor of the Depositor hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section
6.03. Limitation
on Liability of the Depositor and Others.
Neither
the Depositor nor any of the directors, officers, employees or agents of the
Depositor shall be under any liability to the Trust Fund or the Grantor Trust
Certificateholders for any action taken or for refraining from the taking of
any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the
Depositor or any such other Person against any breach of a representation or
warranty made herein, or against any expense or liability specifically required
to be borne thereby pursuant to the terms hereof, or against any liability
which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of obligations or duties hereunder, or by reason
of reckless disregard of such obligations and duties. The Depositor
and any director, officer, employee or agent of the Depositor may rely in good
faith on any document of any kind which, primafacie, is properly
executed and submitted by any Person respecting any matters arising
hereunder. Provided that such action is not related to its
representations made in or its duties under this Agreement, the Depositor shall
not be under any obligation to appear in, prosecute or defend any action or
proceeding unless such action in its opinion does not involve it in any expense
or liability.
ARTICLE
VII
TERMINATION
Section
7.01. Termination.
(a) The
respective obligations and responsibilities of the Depositor and the Grantor
Trust Trustee created hereby with respect to the Group I Sub-Trust (other than
the obligation to make certain payments and to send certain notices to the
related Grantor Trust Certificateholders as hereinafter set forth) shall
terminate upon the later of (i) the making of the final payment on or other
liquidation of the Group I Underlying Securities and (ii) the payment to the
related Grantor Trust Certificateholders of all amounts required to be paid
to
them pursuant to this Agreement; provided, however, that in no
event shall the Group I Sub-Trust created hereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants
of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of
St.
James’s, living on the date hereof.
(b) The
Grantor Trust Trustee shall, in accordance with Section 8.05, give a Notice
of
Final Distribution to the related Holders, the Depositor and the Rating Agencies
as soon as practicable of the Distribution Date on which the Grantor Trust
Trustee anticipates that the final distribution will be made on the Group I
Grantor Trust Certificates, which notice shall:
(i) specify
the Distribution Date on which the final distribution is anticipated to be
made
to such Holders;
(ii) specify
the amount of any such final distribution, if known; and
(iii) state
that the final distribution to such Holders will be made only upon presentment
and surrender of their Grantor Trust Certificates at the office of the Grantor
Trust Trustee therein specified.
If
the
payment on the Group I Grantor Trust Certificates is not made on the anticipated
Distribution Date for any reason, the Grantor Trust Trustee shall promptly
mail
notice thereof to each such Holder, the Depositor and to the Rating
Agencies.
(c) The
respective obligations and responsibilities of the Depositor, the Grantor Trust
Trustee created hereby with respect to the Group II Sub-Trust (other than the
obligation to make certain payments and to send certain notices to the related
Grantor Trust Certificateholders as hereinafter set forth) shall terminate
upon
the later of (i) the making of the final payment on or other liquidation of
the
Group II Underlying Securities and (ii) the payment to the related Grantor
Trust
Certificateholders of all amounts required to be paid to them pursuant to this
Agreement; provided, however, that in no event shall the Group II
Sub-Trust created hereby continue beyond the expiration of twenty-one years
from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late
ambassador of the United States to the Court of St. James’s, living on the date
hereof.
(d) The
Grantor Trust Trustee shall, in accordance with Section 8.05, give a Notice
of
Final Distribution to the related Holders, the Depositor and the Rating Agencies
as soon as practicable of the Distribution Date on which the Grantor Trust
Trustee anticipates that the final distribution will be made on the Group II
Grantor Trust Certificates, which notice shall:
(i) specify
the Distribution Date on which the final distribution is anticipated to be
made
to such Holders;
(ii) specify
the amount of any such final distribution, if known; and
(iii) state
that the final distribution to such Holders will be made only upon presentment
and surrender of their Grantor Trust Certificates at the office of the Grantor
Trust Trustee therein specified.
If
the
payment on the Group II Grantor Trust Certificates is not made on the
anticipated Distribution Date for any reason, the Grantor Trust Trustee shall
promptly mail notice thereof to each such Holder, the Depositor and to the
Rating Agencies.
(e) Upon
presentment and surrender of any Grantor Trust Certificates by the Holders
of
such Grantor Trust Certificates on the related Final Distribution Date, the
Grantor Trust Trustee shall distribute to such Grantor Trust Certificateholders
the amounts otherwise distributable to them on such Distribution Date pursuant
to Section 3.05(a) or Section 3.05(b). Any funds not distributed on a
Final Distribution Date because of the failure of any Grantor Trust
Certificateholders to tender their Grantor Trust Certificates shall be set
aside
and held in trust for the account of the appropriate non-tendering Grantor
Trust
Certificateholders, and the related Sub-Trust shall terminate. If any
Grantor Trust Certificates as to which Notice of Final Distribution has been
given pursuant to this Section 7.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Grantor Trust Trustee shall mail a second notice to the remaining Grantor Trust
Certificateholders related to such Sub-Trust, at their last addresses shown
in
the Certificate Register, to surrender their Grantor Trust Certificates for
cancellation in order to receive, from such funds held, the final distribution
with respect thereto. If within one year after the second notice any
Grantor Trust Certificate shall not have been surrendered for cancellation,
the
Grantor Trust Trustee shall directly or through an agent, take reasonable steps
to contact the remaining Grantor Trust Certificateholders related to such
Sub-Trust concerning surrender of their Grantor Trust Certificates. The costs
and expenses of maintaining such funds and of contacting Grantor Trust
Certificateholders shall be paid out of the assets related to such
Sub-Trust. If within two years after the second notice any Grantor
Trust Certificates shall not have been surrendered for cancellation, the Grantor
Trust Trustee shall segregate all amounts distributable to the related Holders
thereof and shall thereafter hold such amounts for the benefit of such Holders.
No interest shall accrue or be payable to any Grantor Trust Certificateholder
on
any amount held as a result of such Grantor Trust Certificateholder’s failure to
surrender its Grantor Trust Certificate(s) for final payment thereof in
accordance with this Section 7.01.
ARTICLE
VIII
MISCELLANEOUS
PROVISIONS
Section
8.01. Amendment.
(a) This
Agreement may be amended from time to time by the Depositor,
the Grantor Trust Trustee, without the prior consent of any
Certificateholder:
(i) to
cure
any ambiguity;
(ii) to
correct or supplement any provisions herein, which may be inconsistent with
any
other provisions herein;
(iii) to
make
any other provisions with respect to matters or questions arising under this
Agreement which shall not be materially inconsistent with the existing
provisions of this Agreement; and
(iv) to
make
such modifications as may be permitted or required hereunder in connection
with
a repurchase of any Underlying Security pursuant to Section 2.03(c)
hereof;
provided
that such amendment shall not, as evidenced by an Opinion of Counsel delivered
to the Grantor Trust Trustee or a letter from each Rating Agency confirming
that
such amendment shall not result in a downgrade or withdrawal of a rating on
any
of the Grantor Trust Certificates (in each case, the expense of which shall
be
paid for by the Depositor), adversely affect in any material respect the
interests of any Grantor Trust Certificateholder.
(b) This
Agreement may also be amended from time to time by the Depositor and the Grantor
Trust Trustee with respect to a Sub-Trust with the prior written consent of
the
Majority Grantor Trust Certificateholder related to such Sub-Trust for the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of this Agreement with respect to such Sub-Trust or of
modifying in any manner the rights of the related Grantor Trust
Certificateholders; provided, however, that no such amendment
shall:
(i) reduce
in
any manner the amount of, or delay the timing of, payments which are required
to
be distributed on any related Grantor Trust Certificate without the consent
of
the Holder of such Grantor Trust Certificate; or
(ii) modify
the provisions of this Section 8.01 with respect to a Sub-Trust without the
consent of the Holders of all related Grantor Trust Certificates.
Notwithstanding
any other provision of this Agreement, for the purposes of the giving or
withholding of consents pursuant to this Section 8.01(b), Grantor Trust
Certificates registered in the name of, or held for the benefit of, the
Depositor or any Affiliate thereof shall be entitled to vote their Percentage
Interests with respect to matters affecting such Grantor Trust
Certificates.
(c) Promptly
after the execution of any such amendment the Grantor Trust Trustee shall
furnish written notification of the substance of such amendment to each related
Grantor Trust Certificateholder. It shall not be necessary for the
consent of the related Grantor Trust Certificateholders under this Section
8.01
to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by the related Grantor Trust Certificateholders shall be
subject to such reasonable regulations as the Grantor Trust Trustee may
prescribe.
(d) Notwithstanding
any contrary provision of this Agreement, the Grantor Trust Trustee shall not
consent to any amendment to this Agreement unless it shall have first received
an Opinion of Counsel (at the expense of the party seeking such amendment)
to
the effect that such amendment or the exercise of any power granted to the
Depositor or the Grantor Trust Trustee in accordance with such amendment (i)
is
authorized or permitted by the Agreement and (ii) will not result in the
imposition of a tax on the Trust or cause the Trust to fail to be classified
as
a grantor trust under subpart E, part I of subchapter J of chapter 1 of the
Code.
Section
8.02. Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts, each
of
which counterparts shall be deemed to be an original, and such counterparts
shall constitute but one and the same instrument.
Section
8.03. Limitation
on Rights of Grantor Trust Certificateholders.
(a) The
death
or incapacity of any Grantor Trust Certificateholder shall not operate to
terminate this Agreement or the related Sub-Trust, nor entitle such Grantor
Trust 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 the related Sub-Trust, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
(b) No
Grantor Trust Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto,
nor
shall anything herein set forth, or contained in the terms of the Grantor Trust
Certificates, be construed so as to constitute the Grantor Trust
Certificateholders from time to time as partners or members of an association;
nor shall any Grantor Trust Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
(c) No
Grantor Trust Certificateholder shall have any right by virtue of any provision
of this Agreement to institute any suit, action or proceeding in equity or
at
law upon or under or with respect to this Agreement or the related Sub-Trust,
unless such Holder previously shall have given to the Grantor Trust Trustee
and
the Depositor a written notice of default hereunder, and of the continuance
thereof, as hereinbefore provided, and unless also the related Majority
Grantor Trust Certificateholder shall have made written request upon the Grantor
Trust Trustee to institute such action, suit or proceeding in its own name
as
Grantor Trust Trustee hereunder and shall have offered to the Grantor Trust
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Grantor Trust
Trustee, for 30 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit
or
proceeding. For the prosecution and enforcement of the rights granted
under this Section, each and every Grantor Trust Certificateholder and the
Grantor Trust Trustee shall be entitled to such relief as can be given either
at
law or in equity.
Section
8.04. Governing Law.
This
Agreement and the Grantor Trust Certificates shall be construed in accordance
with the laws of the State of New York applicable to agreements made and to
be
performed in said state (without reference to the conflicts of law provisions
of
such state, other than Sections 5-1401 and 5-1402 of the New York General
Obligations Laws, which shall apply hereto), and the obligations, rights and
remedies of the parties hereunder and the Grantor Trust Certificateholders
shall
be determined in accordance with such laws.
Section
8.05. Notices.
All
communications provided for or permitted hereunder shall be in writing and
shall
be deemed to have been duly given when delivered to: (a) in the case of the
Depositor, Structured Asset Mortgage Investments II Inc., 000 Xxxx Xxxxxx,
Xxx
Xxxx, Xxx Xxxx 00000, or such other address as may hereafter be furnished to
the
Grantor Trust Trustee in writing by the Depositor; (b) in the case of the
Grantor Trust Trustee, to its Corporate Trust Office; (c) in the case of
S&P, Standard & Poor’s, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000; and (d) in the case of Moody’s, Xxxxx'x Investors Service, Inc., 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other address as may hereafter
be furnished to the other parties hereto in writing.
Section
8.06. Severability of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Grantor Trust Certificates or the rights of the Holders
thereof.
Section
8.07. Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Grantor Trust
Certificateholders.
Section
8.08. Article
and Section Headings.
The
article and section headings herein are for convenience of reference only,
and
shall not limit or otherwise affect the meaning hereof.
Section
8.09. Notices
to Rating Agencies.
The
Grantor Trust Trustee shall notify the Rating Agencies at such time as it is
otherwise required pursuant to this Agreement to give notice of the occurrence
of any of the events described in clauses (a), (b), or (e) below or provide
a
copy to the Rating Agencies at such time as otherwise required to be delivered
pursuant to this Agreement of each of the statements described in clauses (c)
and (e) below:
(a) a
material change or amendment to this Agreement,
(b) the
termination or appointment of a successor Grantor Trust Trustee or a change
in
the majority ownership of the Grantor Trust Trustee,
(c) the
monthly distribution statement required to be made available or delivered to
the
Grantor Trust Certificateholders pursuant to Section 3.06,
(d) Notice
of
Final Distribution required to be delivered pursuant to Section 7.01(b),
and
(e) a
change
in the location of the Certificate Account.
The
Depositor shall notify the Rating Agencies of any change in its
identity.
Section
8.10. Acts
of Grantor Trust Certificateholders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by Grantor Trust
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Grantor Trust Certificateholders
in person or by an agent duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Grantor Trust Trustee and, where
it is expressly required, to the Depositor. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Grantor Trust
Trustee and the Depositor, if made in the manner provided in this Section
8.10.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by a certificate
of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his or her
authority. The fact and date of the execution of any such instrument
or writing, or the authority of the individual executing the same, may also
be
proved in any other manner which the Grantor Trust Trustee deems
sufficient.
(c) The
ownership of Grantor Trust Certificates (notwithstanding any notation of
ownership or other writing on such Grantor Trust Certificates, except an
endorsement in accordance with Section 4.02 made on a Grantor Trust Certificates
presented in accordance with Section 4.04) shall be proved by the Certificate
Register, and neither the Grantor Trust Trustee, the Depositor, nor any
successor to either such party shall be affected by any notice to the
contrary.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action of the holder of any Grantor Trust Certificate shall bind every future
holder of the same Grantor Trust Certificate and the holder of every Grantor
Trust Certificate issued upon the registration of transfer or exchange thereof,
if applicable, or in lieu thereof with respect to anything done, omitted or
suffered to be done by the Grantor Trust Trustee, the Depositor, or any
successor to either such party in reliance thereon, whether or not notation
of
such action is made upon such Certificates.
(e) In
determining whether the Holders of the requisite Percentage Interest of Grantor
Trust Certificates have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Grantor Trust Certificates owned by the
Grantor Trust Trustee or the Depositor or any Affiliate thereof shall be
disregarded, except as otherwise provided in Section 8.01(b), except that,
in
determining whether the Grantor Trust Trustee shall be protected in relying
upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Grantor Trust Certificates which the Grantor Trust Trustee knows to be
so
owned shall be so disregarded. Grantor Trust Certificates which have
been pledged in good faith to the Grantor Trust Trustee or the Depositor or
any
Affiliate thereof may be regarded as outstanding if the pledgor establishes
to
the satisfaction of the Grantor Trust Trustee the pledgor’s right to act with
respect to such Grantor Trust Certificates and that the pledgor is not an
Affiliate of the Grantor Trust Trustee or the Depositor, as the case may
be.
IN
WITNESS WHEREOF, the Depositor and the Grantor Trust Trustee have caused their
names to be signed hereto by their respective duly authorized officers, all
as
of the day and year first above written.
|
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC., as Depositor
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx, Xx. | |
|
Name: Xxxxxx
X. Xxxxxxxxx, Xx.
|
||
|
Title: Vice
President
|
||
|
XXXXX
FARGO BANK, N.A., as Grantor Trust Trustee
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxx | |
|
Name:
Xxxxxx X. Xxxxxx
|
||
|
Title:
Vice President
|
||
|
STATE
OF NEW YORK
|
)
|
|
|
ss.:
|
||
|
COUNTY
OF NEW YORK
|
)
|
On
the
31st day of
August, 2007 before me, a notary public in and for said State, personally
appeared Xxxxxx X. Jurkoswki, Jr. known to me to be a Vice President of
Structured Asset Mortgage Investments II Inc., the corporation that executed
the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
|
[Notarial
Seal]
|
Commission
Expires:
|
|
STATE
OF MARYLAND
|
)
|
|
|
ss.:
|
||
|
COUNTY
OF XXXXXX
|
)
|
On
the
31st day of
August, 2007 before me, a notary public in and for said State, personally
appeared ____________________________ known to me to be a(n)
________________________ of Xxxxx Fargo Bank, N.A., the national banking
association that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said national banking association, and
acknowledged to me that such national banking association executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
|
[Notarial
Seal]
|
Commission
Expires:
|
EXHIBIT
A
FORM
OF GRANTOR TRUST CERTIFICATE
CLASS
[ ]-A[ ] GRANTOR TRUST CERTIFICATE
THE
CURRENT PRINCIPAL AMOUNT OF THIS GRANTOR TRUST CERTIFICATE WILL BE DECREASED
BY
THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE GRANTOR TRUST CERTIFICATES, THE CURRENT
PRINCIPAL AMOUNT OF THIS GRANTOR TRUST CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS GRANTOR TRUST CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE GRANTOR TRUST TRUSTEE
NAMED HEREIN.
UNLESS
THIS GRANTOR TRUST CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF
THE DEPOSITORY TRUST COMPANY TO THE GRANTOR TRUST TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GRANTOR TRUST CERTIFICATE
ISSUED WILL BE REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT WILL BE MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
|
Grantor
Trust Certificate No. [ ]
|
Variable
Pass-Through Rate
|
|
Class
[ ]-A-[ ]
|
|
|
Date
of Grantor Trust Agreement:
As
of August 31, 2007
|
Aggregate
Initial Current Principal Amount of all Grantor Trust Certificates
of this
Class as of the Closing Date:
$[ ]
|
|
First
Distribution Date:
September
26, 2007
|
Initial
Current Principal Amount of this Grantor Trust Certificate as of
the
Closing Date:
$[ ]
|
|
Grantor
Trust Trustee:
Xxxxx
Fargo Bank, N.A.
|
CUSIP:
[ ]
|
|
Assumed
Final Distribution Date:
[_______]
|
|
BEAR
XXXXXXX STRUCTURED PRODUCTS INC. TRUST 2007-R6
GRANTOR
TRUST CERTIFICATES
SERIES
2007-R6
evidencing
a Percentage Interest in the distributions allocable to the Class [ ]-A-[ ]
Grantor Trust Certificates with respect to the [Group I][Group II] Sub-Trust
consisting primarily of the [Group I][Group II] Underlying Securities sold
by
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This
Grantor Trust Certificate is payable solely from the assets of the [Group
I][Group II] Sub-Trust, and does not represent an obligation of or interest
in
Structured Asset Mortgage Investments II Inc., the Grantor Trust Trustee
referred to below or any of their affiliates or any other person. Neither this
Grantor Trust Certificate nor the related Underlying Securities are guaranteed
or insured by any governmental entity or by Structured Asset Mortgage
Investments II Inc., the Grantor Trust Trustee or any of their affiliates or
any
other person. None of Structured Asset Mortgage Investments II Inc., the Grantor
Trust Trustee or any of their affiliates will have any obligation with respect
to any certificate or other obligation secured by or payable from payments
on
the Grantor Trust Certificates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced hereby in the beneficial ownership interest of Grantor Trust
Certificates of the same Class as this Grantor Trust Certificate in a trust
(the
“Trust Fund”) primarily consisting of the [Group I][Group II] Underlying
Securities sold by Structured Asset Mortgage Investments II Inc. (“XXXX XX”).
The [Group I][Group II] Underlying Securities were sold by EMC Mortgage
Corporation (“EMC”) to XXXX XX. The [Group I][Group II] Sub-Trust was
created pursuant to the Grantor Trust Agreement, dated as of the Closing Date,
(the “Agreement”), between XXXX XX, as depositor (the “Depositor”) and Xxxxx
Fargo, as grantor trust trustee (the “Grantor Trust Trustee”), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, capitalized terms used herein shall have the meaning
ascribed to them in the Agreement. This Grantor Trust Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Grantor Trust Certificate by virtue of
its
acceptance hereof assents and by which such Holder is bound.
Interest
on this Grantor Trust Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate as described in the Agreement. The Grantor Trust Trustee will distribute
on
the Business Day immediately following the Underlying Security Distribution
Date
of each month (each, a “Distribution Date”). to the Person in whose name this
Grantor Trust Certificate is registered at the close of business on the last
Business Day of the calendar month preceding the month of such Distribution
Date, an amount equal to the product of Percentage Interest evidenced by this
Grantor Trust Certificate and the amount (of interest and principal, if any)
required to be distributed to the Holders of Grantor Trust Certificates of
the
same Class as this Grantor Trust Certificate, commencing on the First
Distribution Date specified above. The Underlying Security Distribution Date
is
the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day.
Distributions
on this Grantor Trust Certificate will be made by the Grantor Trust Trustee
by
check mailed to the address of the Person entitled thereto as such name and
address shall appear on the Certificate Register or, if such Person so requests
by notifying the Grantor Trust Trustee in writing as specified in the Agreement,
by wire transfer. Notwithstanding the above, the final distribution on this
Grantor Trust Certificate will be made after due notice by the Grantor Trust
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Grantor Trust Certificate at the office or agency appointed
by
the Grantor Trust Trustee for that purpose and designated in such notice. The
Initial Current Principal Amount of this Grantor Trust Certificate is set forth
above. The Current Principal Amount hereof will be reduced to the extent of
distributions allocable to principal hereon and any Realized Losses allocable
hereto.
This
Grantor Trust Certificate is one of a duly authorized issue of Grantor Trust
Certificates designated as set forth on the face hereof (the “Grantor Trust
Certificates”), issued in four Classes. The Grantor Trust Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Fund
formed pursuant to the Agreement.
The
Grantor Trust Certificateholder, by its acceptance of this Grantor Trust
Certificate, agrees that it will look solely to the [Group I][Group II]
Sub-Trust for payment hereunder and that none of the Depositor or the Grantor
Trust Trustee are liable to the Grantor Trust Certificateholders for any amount
payable under this Grantor Trust Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This
Grantor Trust Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Grantor Trust Trustee.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the Grantor Trust Trustee and the rights of the Grantor Trust Certificateholders
related to the [Group I][Group II] Sub-Trust under the Agreement from time
to
time by the parties thereto with the consent of the Holders of the related
Grantor Trust Certificates, evidencing Percentage Interests aggregating not
less
than 51% of such Sub-Trust (or in certain cases, Holders of the related Grantor
Trust Certificates of affected Classes evidencing such percentage of the
Percentage Interests thereof). Any such consent by the Holder of this Grantor
Trust Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Grantor Trust Certificate and of any Grantor Trust
Certificate issued upon the transfer hereof or in lieu hereof whether or not
notation of such consent is made upon this Grantor Trust Certificate. The
Agreement also permits the amendment thereof, in certain limited circumstances,
without the consent of the Holders of any of the related Grantor Trust
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Grantor Trust Certificate is registrable with the Grantor
Trust Trustee upon surrender of this Grantor Trust Certificate for registration
of transfer at the offices or agencies maintained by the Grantor Trust Trustee
for such purposes, duly endorsed by, or accompanied by a written instrument
of
transfer in form satisfactory to the Grantor Trust Trustee duly executed by
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
accompanied by the information required to be provided to the Grantor Trust
Trustee for WHFIT reporting purposes as described in the Agreement, and
thereupon one or more new Grantor Trust Certificates in authorized denominations
representing a like aggregate Percentage Interest will be issued to the
designated transferee.
The
Grantor Trust Certificates are issuable only as registered Grantor Trust
Certificates without coupons in the Classes and denominations specified in
the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, this Grantor Trust Certificate is exchangeable for one or
more new Grantor Trust Certificates evidencing the same Class and in the same
aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No
service charge will be made to the Grantor Trust Certificateholders for any
such
registration of transfer, but the Grantor Trust Trustee may require payment
of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. The Depositor, Grantor Trust Trustee and any agent of
any
of them may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Grantor Trust
Trustee or any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the [Group I][Group II] Sub-Trust
created thereby (other than the obligations to make payments to Grantor Trust
Certificateholders with respect to the termination of the Agreement related
to
the [Group I][Group II] Sub-Trust) shall terminate upon the later of (i) the
making of the final payment on or other liquidation of the [Group I][Group
II]
Underlying Securities, or (ii) the payment to the related Grantor Trust
Certificateholders of all amounts required to be paid to them pursuant to the
Agreement. In no event, however, will the [Group I][Group II] Sub-Trust created
by the Agreement continue beyond the expiration of 21 years after the death
of
certain persons identified in the Agreement.
Unless
this Grantor Trust Certificate has been countersigned by an authorized signatory
of the Grantor Trust Trustee by manual signature, this Grantor Trust Certificate
shall not be entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Grantor Trust Trustee has caused this Certificate to be
duly executed.
|
Dated:
August 31, 2007
|
XXXXX
FARGO BANK, N.A.,
|
|
|
not
in its individual capacity but solely as Grantor Trust Trustee
|
| By:_____________________________________________________ |
| Authorized Signatory |
CERTIFICATE
OF AUTHENTICATION
This
is one of the Class [ ]-A-[ ]
Grantor Trust Certificates referred to in the within-mentioned
Agreement.
| XXXXX FARGO BANK, N.A., |
|
|
Authorized
signatory of Xxxxx Fargo Bank, N.A., not in its individual capacity
but
solely as Grantor Trust Trustee
|
| By:_____________________________________________________ |
| Authorized Signatory |
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by the
within Grantor Trust Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of the
Trust Fund.
I
(We)
further direct the Grantor Trust Trustee to issue a new Grantor Trust
Certificate of a like denomination and Class, to the above named assignee and
deliver such Grantor Trust Certificate to the following address:
|
Dated:
|
| Signature by or on behalf of assignor |
| Signature Guaranteed |
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_________________________________ for the account of _________________________
account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This
information is provided
by __________________, the
assignee named above, or ________________________, as its agent.
EXHIBIT
B
FORM
OF
CERTIFICATION TO BE
PROVIDED
BY THE GRANTOR TRUST TRUSTEE TO DEPOSITOR
Re: ________________________________
Trust 200_-____(the “Trust”), Grantor Trust Certificates, Series
200_-____, issued pursuant to the Grantor Trust Agreement, dated as of
________ 1, 200_ (the “Agreement” or “Trust Agreement”), between Structured
Asset Mortgage Investments II Inc., as Depositor and Xxxxx Fargo Bank, National
Association, as Grantor Trust Trustee
The
Grantor Trust Trustee hereby certifies to the Depositor, and its officers,
directors and affiliates, and with the knowledge and intent that they will
rely
upon this certification, that:
1. I
have
reviewed the annual report on Form 10-K for the fiscal year [____] (the
“Annual Report”), and all reports on Form 10-D required to be filed in
respect of period covered by the Annual Report (collectively with the Annual
Report, the “Reports”), of the Trust;
2. To
my
knowledge, (a) the Reports, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by the Annual
Report, and (b) the Grantor Trust Trustee’s assessment of compliance and related
attestation report referred to below, taken as a whole, do not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
such
assessment of compliance and attestation report;
3. To
my
knowledge, the distribution information required to be provided by the Grantor
Trust Trustee under the Trust Agreement for inclusion in the Reports is included
in the Reports;
4. I
am
responsible for reviewing the activities performed by the Grantor Trust Trustee
under the Trust Agreement, and based on my knowledge and the compliance review
conducted in preparing the compliance statement of the Grantor Trust Trustee
required by the Trust Agreement, and except as disclosed in the Reports, the
Grantor Trust Trustee has fulfilled its obligations under the Trust Agreement
in
all material respects; and
5. The
report on assessment of compliance with servicing criteria applicable to the
Grantor Trust Trustee for asset-backed securities of the Grantor Trust Trustee
and each Subcontractor utilized by the Grantor Trust Trustee and related
attestation report on assessment of compliance with servicing criteria
applicable to it required to be included in the Annual Report in accordance
with
Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been
included as an exhibit to the Annual Report. Any material instances
of non-compliance are described in such report and have been disclosed in the
Annual Report.
In
giving the certifications above, the
Grantor Trust Trustee has reasonably relied on information provided to it by
the
following unaffiliated parties: [names of servicer(s), master
servicer, subservicer, depositor, Grantor Trust Trustee,
custodian(s)]
Date:________________________________________
_______________________________________
[Signature]
[Title]
EXHIBIT
C
(B) SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
Definitions
Grantor
Trust Trustee – waterfall calculator
Grantor
Trust Trustee – fiduciary of the transaction
Note: The
definitions above describe the essential function that the party performs,
rather than the party’s title. So, for example, in a particular
transaction, the Grantor Trust Trustee may perform the “paying agent” and
“securities administrator” functions, while in another transaction, the
securities administrator may perform these functions.
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
Key: X
– obligation
|
Reg
AB Reference
|
Servicing
Criteria
|
Grantor
Trust Trustee
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements. (In this transaction there is no
external enhancement or other support.)
|
EXHIBIT
D
FORM
10-D, FORM 8-K AND FORM 10-K REPORTING RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the party identified
as responsible for preparing the Securities Exchange Act Reports pursuant to
Section 3.11 of the Grantor Trust Agreement.
Under
Item 1 of Form 10-D: a) items marked “Monthly Statement to Grantor Trust
Certificateholders” are required to be included in the periodic Distribution
Date statement under Section 3.06, provided by the Grantor Trust Trustee based
on information received from the party providing such information; and b) items
marked “Form 10-D report” are required to be in the Form 10-D report but not the
Monthly Statements to Grantor Trust Certificateholders, provided by the party
indicated. Information under all other Items of Form 10-D is to be
included in the Form 10-D report. All such information and any other
Items on Form 8-K and Form 10-D set forth in this Exhibit shall be sent to
the
Grantor Trust Trustee and the Depositor.
|
Form
|
Item
|
Description
|
Grantor
Trust Trustee
|
Depositor
|
Sponsor
|
|
|
10-D
|
Must
be filed within 15 days of the distribution date for the asset-backed
securities.
|
|||||
|
1
|
Distribution
and Pool Performance Information
|
|||||
|
Item
1121(a) – Distribution and Pool Performance
Information
|
||||||
|
(1)
Any applicable record dates, accrual dates, determination dates for
calculating distributions and actual distribution dates for the
distribution period.
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
|||||
|
(2)
Cash flows received and the sources thereof for distributions, fees
and
expenses.
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
|||||
|
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
|||||
|
(i)
Fees or expenses accrued and
paid, with an identification of the general purpose of such fees
and the
party receiving such fees or expenses.
|
||||||
|
(ii)
Payments accrued or paid
with respect to enhancement or other support identified in Item 1114
of
Regulation AB (such as insurance premiums or other enhancement maintenance
fees), with an identification of the general purpose of such payments
and
the party receiving such payments.
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
|||||
|
(iii)
Principal, interest and
other distributions accrued and paid on the asset-backed securities
by
type and by class or series and any principal or interest shortfalls
or
carryovers.
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
|||||
|
(iv)
The amount of excess cash
flow or excess spread and the disposition of excess cash
flow.
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
|||||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
|||||
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
|||||
|
(6)
Beginning and ending balances of transaction accounts, such as reserve
accounts, and material account activity during the period.
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
|||||
|
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
|||||
|
(8)
Number and amount of pool assets at the beginning and ending of each
period, and updated pool composition information, such as weighted
average
coupon, weighted average remaining term, pool factors and prepayment
amounts.
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
||||
|
(9)
Delinquency and loss information for the period.
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
|||||
|
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool assets.
(methodology)
|
||||||
|
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of funds
advanced and the general source of funds for
reimbursements.
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
|||||
|
(11)
Any material modifications, extensions or waivers to pool asset terms,
fees, penalties or payments during the distribution period or that
have
cumulatively become material over time.
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
|||||
|
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
X
(if
agreed upon by the parties)
|
X
|
||||
|
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger and
whether
the trigger was met.
|
X
(Monthly
Statements to Grantor Trust Certificateholders)
|
|||||
|
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool,
|
X
|
|||||
|
information
regarding any pool asset changes (other than in connection with a
pool
asset converting into cash in accordance with its terms), such as
additions or removals in connection with a prefunding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any prefunding or revolving accounts, if
applicable.
|
X
|
X
|
||||
|
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
X
|
X
|
||||
|
Item
1121(b) – Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
X
|
|||||
|
2
|
Legal
Proceedings
|
|||||
|
Item
1117 – Legal proceedings pending against the following entities, or their
respective property, that is material to Grantor Trust Certificateholders,
including proceedings known to be contemplated by governmental
authorities:
|
||||||
|
Sponsor
(Seller)
|
X
|
|||||
|
Depositor
|
X
|
|||||
|
Grantor
Trust Trustee
|
X
|
|||||
|
Issuing
entity
|
X
|
|||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or more
of
pool assets at time of report, other material servicers
|
N/A
|
|||||
|
Securities
Administrator
|
N/A
|
|||||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
X
|
|||||
|
Custodian
|
N/A
|
|||||
|
3
|
Sales
of Securities and Use of Proceeds
|
|||||
|
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information can be omitted if securities were not
registered.
|
X
|
|||||
|
4
|
Defaults
Upon Senior Securities
|
|||||
|
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
X
|
|||||
|
5
|
Submission
of Matters to a Vote of Security Holders
|
|||||
|
Information
from Item 4 of Part II of Form 10-Q
|
X
|
|||||
|
6
|
Significant
Obligors of Pool Assets
|
|||||
|
Item
1112(b) –Significant Obligor Financial
Information*
|
X
|
|||||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
||||||
|
7
|
Significant
Enhancement Provider Information
|
|||||
|
Item
1114(b)(2) – Credit Enhancement Provider Financial
Information*
|
||||||
|
Determining
applicable disclosure threshold
|
||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
||||||
|
Item
1115(b) – Derivative Counterparty Financial
Information*
|
||||||
|
Determining
current maximum probable exposure
|
X
|
|||||
|
Determining
current significance percentage
|
||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
||||||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
||||||
|
8
|
Other
Information
|
|||||
|
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
below.
|
|||||
|
9
|
Exhibits
|
|||||
|
Distribution
report
|
X
|
|||||
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
X
|
|||||
|
8-K
|
Must
be filed within four business days of an event reportable on Form
8-K.
|
|||||
|
1.01
|
Entry
into a Material Definitive Agreement
|
|||||
|
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a
party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
X
|
X
|
X
|
|||
|
1.02
|
Termination
of a Material Definitive Agreement
|
X
|
X
|
X
|
||
|
Disclosure
is required regarding termination of any definitive agreement
that is material to the securitization (other than expiration in
accordance with its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
||||||
|
1.03
|
Bankruptcy
or Receivership
|
|||||
|
Disclosure
is required regarding the bankruptcy or receivership, if known, with
respect to any of the following:
Sponsor
(Seller), Depositor, Master Servicer, affiliated Servicer, other
Servicer
servicing 20% or more of pool assets at time of report, other material
servicers, Certificate Administrator, Grantor Trust Trustee, significant
obligor, credit enhancer (10% or more), derivatives counterparty,
Custodian
|
X
|
X
|
X
|
|||
|
2.04
|
Triggering
Events that Accelerate or Increase a Direct Financial Obligation
or an
Obligation under an Off-Balance Sheet Arrangement
|
|||||
|
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the Monthly Statement to Grantor Trust
Certificateholders
|
X
|
|||||
|
3.03
|
Material
Modification to Rights of Security Holders
|
|||||
|
Disclosure
is required of any material modification to documents defining the
rights
of Grantor Trust Certificateholders, including the Pooling and Servicing
Agreement
|
X
|
X
|
||||
|
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
|||||
|
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
X
|
|||||
|
5.06
|
Change
in Shell Company Status
|
|||||
|
[Not
applicable to ABS issuers]
|
X
|
|||||
|
6.01
|
ABS
Informational and Computational Material
|
|||||
|
[Not
included in reports to be filed under Section 3.18]
|
X
|
|||||
|
6.02
|
Change
of Servicer or Grantor Trust Trustee
|
|||||
|
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers, certificate
administrator or Grantor Trust Trustee.
|
X
|
X
|
||||
|
Reg
AB disclosure about any new servicer is also required.
|
N/A
|
|||||
|
Reg
AB disclosure about any new Grantor Trust Trustee is also
required.
|
X
(to
the extent of a new Grantor Trust Trustee)
|
|||||
|
Reg
AB disclosure about any new securities administrator is also
required.
|
N/A
|
|||||
|
6.03
|
Change
in Credit Enhancement or Other External Support In this transaction
there
is no external enhancement or other support.
|
|||||
|
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as
derivatives.
|
X
|
|||||
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
X
|
|||||
|
6.04
|
Failure
to Make a Required Distribution
|
X
|
||||
|
6.05
|
Securities
Act Updating Disclosure
|
|||||
|
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
X
|
|||||
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
X
|
|||||
|
7.01
|
Regulation
FD Disclosure
|
X
|
X
|
|||
|
8.01
|
Other
Events
|
|||||
|
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to security
holders.
|
X
|
|||||
|
9.01
|
Financial
Statements and Exhibits
|
The
Responsible Party applicable to reportable event.
|
||||
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
|||||
|
9B
|
Other
Information
|
|||||
|
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
above.
|
|||||
|
15
|
Exhibits
and Financial Statement Schedules
|
|||||
|
Item
1112(b) –Significant Obligor Financial
Information
|
X
|
|||||
|
Item
1114(b)(2) – Credit Enhancement Provider Financial
Information
|
||||||
|
Determining
applicable disclosure threshold
|
||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
||||||
|
Item
1115(b) – Derivative Counterparty Financial
Information
|
||||||
|
Determining
current maximum probable exposure
|
X
|
|||||
|
Determining
current significance percentage
|
||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
||||||
|
Item
1117 – Legal proceedings pending against the following entities, or their
respective property, that is material to Grantor Trust Certificateholders,
including proceedings known to be contemplated by governmental
authorities:
|
||||||
|
Sponsor
(Seller)
|
X
|
|||||
|
Depositor
|
X
|
|||||
|
Grantor
Trust Trustee
|
X
|
|||||
|
Issuing
entity
|
X
|
|||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or more
of
pool assets at time of report, other material servicers
|
N/A
|
|||||
|
Securities
Administrator
|
N/A
|
|||||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
X
|
|||||
|
Custodian
|
N/A
|
|||||
|
Item
1119 – Affiliations and relationships between the following entities, or
their respective affiliates, that are material to Grantor Trust
Certificateholders:
|
||||||
|
Sponsor
(Seller)
|
X
|
|||||
|
Depositor
|
X
|
|||||
|
Grantor
Trust Trustee
|
X | |||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or more
of
pool assets at time of report, other material servicers
|
N/A
|
|||||
|
Securities
Administrator
|
N/A
|
|||||
|
Originator
|
X
|
|||||
|
Custodian
|
N/A
|
|||||
|
Credit
Enhancer/Support Provider
|
X
|
|||||
|
Significant
Obligor
|
X
|
|||||
|
Item
1122 – Assessment of Compliance with Servicing
Criteria
|
X
|
|||||
|
Item
1123 – Servicer Compliance Statement
|
||||||
EXHIBIT
E
ADDITIONAL
DISCLOSURE NOTIFICATION
Xxxxx
Fargo Bank, N.A. as Grantor Trust Trustee
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn: Client
Manager - BSSP 2007-R6 - SEC REPORT PROCESSING
RE: **Additional
Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section 3.11 of the
Grantor Trust Agreement, dated as of August 31, 2007, by and between Structured
Asset Mortgage Investments II Inc., as depositor, and Xxxxx Fargo Bank, N.A.,
as
grantor trust trustee. The Undersigned, as
[ ], hereby notifies you that certain events have come to
our attention that [will][may] need to be disclosed on Form
[ ].
Description
of Additional Form [ ] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any
inquiries related to this
notification should be directed to [ ], phone
number: [ ]; email
address: [ ].
| [NAME OF PARTY] | |||
| as [role] | |||
| By: __________________ | |||
| Name: | |||
| Title: | |||
SCHEDULE
A
UNDERLYING
SECURITIES
|
Full
Name of Series
|
Initial
Principal Balance
|
Current
Principal Balance
|
Class
% in Trust
|
|||||||||
|
Bear
Xxxxxxx ALT-A Trust, Mortgage Pass-Through Certificates, Series
2005-8,
Class
II-1A-1 Certificates
|
$ |
716,778,200.00
|
$ |
217,963,703.01
|
45.4503 | % | ||||||
|
Bear
Xxxxxxx ALT-A Trust, Mortgage Pass-Through Certificates, Series
2005-9,
Class
II-3A-1 Certificates
|
$ |
151,019,300.00
|
$ |
99,211,238.12
|
100.00 | % | ||||||
|
Bear
Xxxxxxx ALT-A Trust, Mortgage Pass-Through Certificates, Series
2005-10,
Class
II-5A-1 Certificates
|
$ |
259,783,000.00
|
$ |
95,879,190.76
|
56.9706 | % | ||||||
|
Bear
Xxxxxxx ALT-A Trust 2006-3, Mortgage Pass-Through Certificates, Series
2006-3,
Class
II-3A-1 Certificates
|
$ |
304,609,000.00
|
$ |
20,019,851.20
|
11.7035 | % | ||||||
|
Bear
Xxxxxxx ALT-A Trust, Mortgage Pass-Through Certificates, Series
2007-2,
Class
II-A-1 Certificates
|
$ |
241,692,000.00
|
$ |
84,525,921.66
|
37.5238 | % | ||||||
|
Bear
Xxxxxxx ARM Trust 2007-2, Mortgage-Backed Notes, Series
2007-2,
Class
II-A-1 Notes
|
$ |
499,261,000.00
|
$ |
96,651,241.70
|
19.8816 | % | ||||||
