Exhibit 4
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BCAP LLC,
Depositor
and
Xxxxx Fargo Bank, N.A.,
Trustee
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TRUST AGREEMENT
Dated as of November 30, 2006
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BCAP 2006-RR1
Resecuritization Pass-Through Certificates,
Series 2006-RR1
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions...................................................
Section 1.02 Interest Calculation Balances.................................
ARTICLE II
CONVEYANCE OF THE DEPOSITED UNDERLYING CERTIFICATES AND
THE ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of the Deposited Underlying Certificates...........
Section 2.02 Issuance of Certificates......................................
Section 2.03 Representations and Warranties of the Depositor...............
Section 2.04 REMIC Matters.................................................
Section 2.05 Limitation on Liability of the Depositor and Others...........
ARTICLE III
ADMINISTRATION OF THE DEPOSITED UNDERLYING CERTIFICATES
Section 3.01 Collection of Payments on Deposited Underlying Certificates;
Distribution Account, Reserve Fund Account...................
Section 3.02 Distributions.................................................
Section 3.03 Statements to Certificateholders..............................
Section 3.04 Allocation of Realized Losses and Trust Expenses..............
Section 3.05 Notices to Trustee............................................
Section 3.06 Determination of LIBOR........................................
Section 3.07 Nonpetition...................................................
ARTICLE IV
THE CERTIFICATES
Section 4.01 The Certificates..............................................
Section 4.02 Certificate Register; Registration of Transfer and Exchange of
Certificates.................................................
Section 4.03 Mutilated, Destroyed, Lost or Stolen Certificates.............
Section 4.04 Persons Deemed Owners.........................................
Section 4.05 Access to List of Certificateholders' Names and Addresses.....
Section 4.06 Maintenance of Office or Agency...............................
Section 4.07 Compliance with Withholding Requirements......................
ARTICLE V
[RESERVED]
ARTICLE VI
THE TRUSTEE
Section 6.01 Duties of Trustee.............................................
Section 6.02 Certain Matters Affecting the Trustee.........................
Section 6.03 Trustee Not Liable for Certificates...........................
Section 6.04 Trustee May Own Certificates..................................
Section 6.05 Trustee's Fees and Expenses...................................
Section 6.06 Eligibility Requirements for Trustee..........................
Section 6.07 Resignation and Removal of Trustee............................
Section 6.08 Successor Trustee.............................................
Section 6.09 Merger or Consolidation of Trustee............................
Section 6.10 [Reserved]....................................................
Section 6.11 Tax Matters...................................................
Section 6.12 Tax Classification of Corridor Agreement and Reserve Fund
Account......................................................
Section 6.13 Periodic Filings..............................................
Section 6.14 Annual Reports on Assessment of Compliance with Servicing
Criteria; Annual Independent Public Accountants' Attestation
Report.......................................................
Section 6.15 Annual Statement as to Compliance.............................
ARTICLE VII
TERMINATION
Section 7.01 Termination Upon Distribution to Certificateholders...........
Section 7.02 Failure of Certificateholders to Surrender Certificates.......
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01 Amendment.....................................................
Section 8.02 Limitation on Rights of Certificateholders....................
Section 8.03 Limitation on Liability of the Depositor and Others...........
Section 8.04 Governing Law.................................................
Section 8.05 Notices.......................................................
Section 8.06 Severability of Provisions....................................
Section 8.07 Certificates Nonassessable and Fully Paid.....................
Section 8.08 Execution in Counterparts.....................................
Section 8.09 Regulation AB Compliance; Intent of the Parties;
Reasonableness53
EXHIBIT A-1 Form of Class PA, PB, PC, PD, PE, TA, WZ, CF and CS
Certificates
EXHIBIT A-2 Form of Class AR Certificates
EXHIBIT A-3 Form of Reverse of Certificates
EXHIBIT B Schedule of Deposited Underlying Certificates
EXHIBIT C-1 Form of Transfer Affidavit
EXHIBIT C-2 Form of Transferor Certificate
EXHIBIT D Aggregate Targeted Balance Amortization Schedule
EXHIBIT E Servicing Criteria
EXHIBIT F Additional Form 10-D Disclosure
EXHIBIT G Form 8-K Disclosure Information
EXHIBIT H Additional Disclosure Notification
EXHIBIT I Form of Certification to be provided by the Trustee to the
Depositor
EXHIBIT J Additional Form 10K Disclosure
EXHIBIT K Form of Certification to be provided to the Depositor
This Trust Agreement ("Trust Agreement" or "Agreement"), dated as of
November 30, 2006, by and among BCAP LLC, a Delaware company (the "Depositor"),
as Depositor, and XXXXX FARGO BANK, N.A., a banking association organized under
the laws of the United States (the "Trustee"), as Trustee.
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the
Depositor and the Trustee agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. The Trust Fund is being conveyed
to the Trustee to create a trust for the benefit of the Certificateholders. An
election will be made to treat a designated portion of the Trust Fund for
federal income tax purposes as a real estate mortgage investment conduit (the
"Trust REMIC"). The Trust REMIC will consist of all of the assets constituting
the Trust Fund (exclusive of the Corridor Agreement, payments thereunder and the
Reserve Fund Account) and any proceeds thereof and will be evidenced by the
Regular Certificates as the "regular interests" in the Trust REMIC (exclusive of
the portion of the Class CF Certificates representing beneficial ownership of
the Corridor Agreement, payments thereunder and the Reserve Fund Account), and
the Class AR Certificates as the single "residual interest" in the Trust REMIC.
In addition, the Class CF Certificates will also represent
beneficial ownership of the Corridor Agreement, payments thereunder and the
Reserve Fund Account, and such portion of the Trust Fund shall be treated as a
grantor trust under subpart E, Part I of subchapter J of the Code.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that one Certificate of each
Class of Certificates may be issued in a different amount):
Initial Class Integral
Principal Multiples
Balance or Pass-Through Minimum in Excess of
Notional Amount ($) Rate (%) Denomination ($) Minimum ($)
------------------- ------------ ---------------- ------------
Class PA 147,037,000 5.00 25,000 1
Class PB 31,060,000 5.00 25,000 1
Class PC 50,248,000 5.00 25,000 1
Class PD 34,540,000 5.00 25,000 1
Class PE 41,783,000 5.00 25,000 1
Class TA 125,000,000 5.00 25,000 1
Class WZ 25,333 5.00 25,000 1
Class CF 25,000,000 (1) 25,000 1
Class CS 25,000,000(2) (1) 25,000 1
Class AR 100 5.00 100 N/A
(1) The Class CF and Class CS Certificates will bear interest at a per annum
rate that varies with LIBOR as follows (subject to the applicable maximum
or minimum rate set forth below).
Minimum
Class Initial Rate Minimum Formula Rate Maximum Rate
-------- -------------- -------------------- ----------- ---------------------
CF 5.96%(a) LIBOR+0.64% 0.64% 5.00%(a)/10.50%(b)
CS 0.00% 4.36% - LIBOR 0.00% 4.36%
(a) The ratings on the Class CF Certificates do not address any payments
of interest based on a Pass-Through Rate in excess of 5.00% per
annum.
(b) The Class CF Certificates will accrue interest at their maximum
pass-through rate of 10.50% per annum if LIBOR is greater than or
equal to 9.86% per annum. Any interest payable on the Class CF
Certificates in excess of the interest payable to such class at a
Pass-Through Rate of 5.00% per annum will be payable solely from
amounts received in respect of the Corridor Agreement.
(2) Initial notional amount. The Class CS Certificates have no Class Principal
Balance, are not entitled to distributions of principal and will bear
interest on the Notional Amount.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates............ All Classes of the Certificates other than
the Physical Certificates.
ERISA-Restricted Certificates...... The Residual Certificates.
LIBOR Certificates................. The Class CF and Class CS Certificates.
Offered Certificates............... All Classes of Certificates.
Physical Certificates.............. The Residual Certificates.
Rating Agencies.................... Fitch, Moody's and S&P.
Regular Certificates............... All Classes of Certificates, other than
the Residual Certificates.
Residual Certificates.............. The Class AR Certificates.
Senior Certificates................ The Class PA, Class PB, Class PC,
Class PD, Class PE, Class CF and Class CS
Certificates.
Defined terms and provisions herein relating to statistical rating
agencies not designated above as Rating Agencies shall be of no force or effect.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Trust Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accrued Certificate Interest: For each Class of Certificates for
each Distribution Date will be an amount equal to (1)(a) the interest accrued at
that Class's Pass-Through Rate (capped at 5.00% per annum for purposes of this
definition, in the case of the Class CF Certificates) during the related
Interest Accrual Period on the Class Principal Balance or the Notional Amount,
as applicable, of that Class of Certificates, minus (b) each Class's pro rata
share (based on the amount set forth in clause (a) for such Class) of any
related Net Interest Shortfalls, plus (2) any Accrued Certificate Interest for
that Class remaining undistributed from previous Distribution Dates.
Additional Disclosure Notification: As defined in Section 6.13(b).
Additional Form 10-D Disclosure: As defined in Section 6.13(b).
Additional Form 10-K Disclosure: As defined in Section 6.13(c).
Affiliate: When used with reference to a specified Person, another
Person that (i) directly or indirectly controls or is controlled by or is under
common control with the specified Person, (ii) is an officer of, partner in or
trustee of, or serves in a similar capacity with respect to, the specified
Person or of which the specified Person is an officer, partner or trustee, or
with respect to which the specified Person serves in a similar capacity or (iii)
directly or indirectly is the beneficial owner of 10% or more of any class of
equity securities of the specified Person or of which the specified Person is
directly or indirectly the owner of 10% or more of any class of equity
securities.
Agreement: This Trust Agreement and all amendments or supplements
hereto.
Available Funds: For each Certificate Group for any Distribution
Date, the sum of (i) Available Interest Funds for such Certificate Group for
such Distribution Date and (ii) Available Principal Funds for such Certificate
Group for such Distribution Date.
Available Interest Funds: For each Certificate Group for any
Distribution Date, the aggregate of all previously undistributed amounts
received by the Trustee on or prior to such Distribution Date as distributions
of interest on the Related Deposited Underlying Certificates.
Available Principal Funds: For each Certificate Group for any
Distribution Date, (i) the aggregate of all previously undistributed amounts
received by the Trustee on or prior to such Distribution Date as distributions
of principal on the Related Deposited Underlying Certificates, reduced by (ii)
such Certificate Group's pro rata share of Trust Expenses.
Basis Risk Shortfall Carryover Amounts: As defined in Section
3.01(e).
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a
legal holiday in the city or state where the Corporate Trust Office is located,
the City of New York or the State of New York or (iii) a day on which banking
institutions in the city or state where the Corporate Trust Office is located,
the City of New York or the State of New York are authorized or obligated by law
or executive order to be closed.
Certificate: Any one of the Certificates executed by the Trustee on
behalf of the Trust and authenticated by the Trustee in substantially the forms
attached hereto as Exhibit A-1 or Exhibit A-2.
Certificate Group: The Group 1 Certificates or the Group 2
Certificates, as applicable.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Principal Balance: With respect to any Certificates at
any date, the maximum dollar amount of principal to which the Holder thereof is
then entitled hereunder, such amount being equal to the Denomination thereof
minus the sum of:
(i) all amounts previously distributed on such Certificate as
payments of principal;
(ii) the amount of Realized Losses allocated to such Certificate;
and
(iii) the amount of Trust Expenses previously allocated to such
Certificate;
and, in the case of any Certificate to which Realized Losses have been
allocated, increased by the amount of Subsequent Recoveries (as that term is
used in the applicable Governing Agreement) on the mortgage loans underlying the
Related Deposited Underlying Certificates distributed as principal on such
Related Deposited Underlying Certificates and allocated to such Certificate, and
in the case of a Class WZ Certificate, increased by the Class WZ Accrual Amount
for such Certificate for such Distribution Date.
Certificate Register: The meaning provided in Section 4.02.
Certificate Registrar: Initially the Trustee, in its capacity as
Certificate Registrar, or any successor to the Trustee in such capacity.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Trust Agreement, any Certificate
registered in the name of the Depositor or any Affiliate of the Depositor shall
be deemed not to be Outstanding and the Percentage Interest evidenced thereby
shall not be taken into account in determining whether the requisite amount of
Percentage Interests necessary to effect such consent has been obtained;
provided, however, that, if any such Person (including the Depositor or any
Affiliate thereof) owns 100% of the Percentage Interests evidenced by a Class of
Certificates, such Certificates shall be deemed to be Outstanding for purposes
of any provision hereof that requires the consent of the Holders of Certificates
of a particular Class as a condition to the taking of any action hereunder. The
Trustee is entitled to rely conclusively on a certification of the Depositor or
any Affiliate of the Depositor, as applicable, in determining which Certificates
are registered in the name of an Affiliate of the Depositor.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class CS Notional Amount: With respect to any Distribution Date, the
outstanding Class Principal Balance of the Class CF Certificates for such
Distribution Date.
Class Principal Balance: With respect to any Class of Certificates
and as to any date of determination, the aggregate of the Certificate Principal
Balances of all Certificates of such Class as of such date.
Class WZ Accrual Amount: For each Distribution Date prior to the
Class WZ Accrual Termination Date, an amount equal to the Accrued Certificate
Interest for the Class WZ Certificates for such Distribution Date.
Class WZ Accrual Termination Date: The Distribution Date following
the Distribution Date on which the Certificate Principal Balance of the Class TA
Certificates has been reduced to zero.
Closing Date: November 30, 2006.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time, any successor statutes thereto, and applicable U.S. Department of
the Treasury temporary or final regulations promulgated thereunder.
Commission: The United States Securities and Exchange Commission.
Corporate Trust Office: With respect to the Trustee, the designated
office of the 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 is located (i) for purposes of
Certificate transfers, at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services - BCAP
2006-RR1 and (ii) for all other purposes, at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attention: Client Manager BCAP 2006-RR1, facsimile no. (410)
715-2380, and which is the address to which notices to and correspondence with
the Trustee should be directed.
Corridor Agreement: The interest rate corridor agreement, dated
November 30, 2006, between Barclays Bank PLC, as corridor provider, and the
Trustee.
Corridor Agreement Payments: For any Distribution Date, the amount,
if any, required to be paid by the Corridor Provider on such Distribution Date
pursuant to the Corridor Agreement.
Corridor Provider: Barclays Bank, PLC, and its successors in
interest.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 4.02(e).
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Principal Balance of this
Certificate" or the "Initial Notional Amount of this Certificate" or, if neither
of the foregoing, Percentage Interest appearing on the face thereof.
Deposited Underlying Certificate: Any of the securities identified
on Exhibit B hereto, as applicable.
Deposited Underlying Certificate Distribution Date: With respect to
each Deposited Underlying Certificate, the date in each month on which payments
are made to the registered holders of such Deposited Underlying Certificate in
accordance with the applicable Governing Agreement.
Deposited Underlying Certificate Report: With respect to each
Deposited Underlying Certificate and each Deposited Underlying Certificate
Distribution Date, the remittance report provided to the Trustee as holder of
such Deposited Underlying Certificate by or on behalf of the trustee,
administrator or servicer pursuant to the applicable Governing Agreement.
Depositor: BCAP LLC, a Delaware limited liability company, and its
successor in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Disqualified Organization: A Person specified in clauses (i)-(iv) of
the definition of "Permitted Transferee."
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.01 in the name of the Trustee
for the benefit of the Certificateholders and designated "Xxxxx Fargo Bank,
N.A., in trust for registered holders of BCAP 2006-RR1 Resecuritization
Pass-Through Certificates, Series 2006-RR1." Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement.
Distribution Date: The same Business Day as the Deposited Underlying
Certificate Distribution Date.
Distribution Statement: As defined in Section 3.03.
Eligible Account: Any of (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company the 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) have the highest short
term ratings of each Rating Agency at the time any amounts are held on deposit
therein, or (ii) an account or accounts in a depository institution or trust
company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee and to each Rating Agency, the Certificateholders have a claim with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a segregated trust account or accounts
maintained with the corporate trust department of a federal depository
institution or state chartered depository institution subject to regulations
regarding fiduciary funds on deposit similar to Title 12 of the U.S. Code of
Federal Regulation Section 9.10(b), which, in either case, has corporate trust
powers and is acting in its fiduciary capacity or (iv) any other account
acceptable to each Rating Agency. Eligible Accounts may bear interest, and may
include, if otherwise qualified under this definition, accounts maintained with
the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Excess Funds: With respect to the Reserve Fund and for any
Distribution Date, the amount by which the Corridor Agreement Payments for prior
Distribution Dates exceed the amount actually paid from the Reserve Fund with
respect to (i) Interest Rate Corridor Amounts for such prior Distribution Dates
and (ii) Basis Risk Shortfall Carryover Amounts for such prior Distribution
Dates.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Final Distribution Date: The applicable Distribution Date set forth
in the notice delivered by the Trustee of the final distribution on the
Certificates pursuant to Section 7.01.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section 8.05
the address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: MBS Monitoring - BCAP 2006-RR1, or such
other address as Fitch may hereafter furnish to the Depositor and the Trustee.
Governing Agreement: With respect to each Deposited Underlying
Certificate, the agreement pursuant to which such Deposited Underlying
Certificate was issued.
Grantor Trust: That portion of the Trust, exclusive of the Trust
REMIC, that holds the Corridor Agreement, payments thereunder and the Reserve
Account.
Group 1 Certificates: The Class PA, Class PB, Class PC, Class PD,
Class PE, Class TA, Class WZ and Class AR Certificates.
Group 1 Deposited Underlying Certificates: The Deposited Underlying
Certificates identified on Exhibit B hereto as relating to the Group 1
Certificates.
Group 2 Certificates: The Class CF and Class CS Certificates.
Group 2 Deposited Underlying Certificates: The Deposited Underlying
Certificates identified on Exhibit B hereto as relating to the Group 2
Certificates.
Interest Accrual Period: With respect to each Class of Certificates
(other than the LIBOR Certificates) and any Distribution Date, the calendar
month preceding the month in which such Distribution Date occurs. With respect
to the LIBOR Certificates, and any Distribution Date, the period from and
including the 25th day of the month immediately preceding the month in which
such Distribution Date occurs to but excluding the 25th day of the month in
which such Distribution Date occurs.
Interest Distribution Amount: For each Distribution Date and each
Class of Certificates, an amount equal to the Accrued Certificate Interest for
such Class for such Distribution Date; provided, however, that prior to the
Class WZ Accrual Termination Date, any Accrued Certificate Interest on the Class
WZ Certificates shall not be distributed on the Class WZ Certificates, but
instead shall be added to the Certificate Principal Balance of the Class WZ
Certificates.
Interest Rate Corridor Amount: With respect to the Class CF
Certificates for any Distribution Date beginning on the Distribution Date in
January 2007, to and including the Distribution Date in March 2032 for which
LIBOR exceeds 4.36%, an amount equal to the product of (a) the Class Principal
Balance of the Class CF Certificates immediately prior to such Distribution
Date, (b) the excess of (i) the lesser of (x) LIBOR and (y) 9.86% over (ii)
4.36% and (c) one-twelfth.
Latest Possible Maturity Date: The Distribution Date on the latest
scheduled Deposited Underlying Certificate Distribution Date for any of the
Deposited Underlying Certificates.
LIBOR: As defined in Section 3.06.
LIBOR Business Day: As defined in Section 3.06.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: For each Interest Accrual Period with
respect to the LIBOR Certificates, the second London Business Day prior to the
day on which such Interest Accrual Period commences.
London Business Day: Any Business Day on which banks are open for
dealing in foreign currency and exchange in London, England and the City of New
York.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
If Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 8.05, the address for notices to Moody's shall be Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Monitoring Group, or such other address as Moody's may
hereafter furnish to each other party to this Agreement.
Net Interest Shortfall: With respect to each Certificate Group, the
shortfalls allocated to the Related Deposited Underlying Certificates for the
related Deposited Underlying Certificate Distribution Date resulting from the
application of the Relief Act or prepayments on the mortgage loans underlying
such Related Deposited Underlying Certificates not accompanied by a payment of
one full month of interest with respect to the amount so prepaid.
Notional Amount: With respect to the Class CS Certificates and any
Distribution Date, an amount equal to the aggregate Class Principal Balance of
the Class CF Certificates immediately prior to such Distribution Date.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: With respect to any Person, a certificate
signed by the Chairman of the Board, the President or a Vice President, and by
the Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of such Person (or, in the case of a Person which is not a
corporation, signed by the Person or Persons having like responsibilities).
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor or the Trustee, including in-house counsel, reasonably
acceptable to the Trustee; provided, however, that with respect to the
interpretation or application of the REMIC Provisions, such counsel must (i) in
fact be independent of the Depositor and the Trustee, (ii) not have any direct
financial interest in the Depositor or the Trustee or in any affiliate of
either, and (iii) not be connected with the Depositor or the Trustee as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(a) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(b) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
Pass-Through Rate: For any interest bearing Class of Certificates,
the per annum rate set forth or calculated in the manner described in the
Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(a) obligations of the United States or any agency thereof, provided
such obligations are backed by the full faith and credit of the United
States;
(b) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving the highest long
term debt 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 Certificates by either Rating Agency (as confirmed in writing by the
applicable Rating Agency);
(c) 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 Certificates by either Rating Agency
(as confirmed in writing by the applicable Rating Agency);
(d) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state thereof
and subject to supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or long term unsecured
debt obligations of such depository institution or trust company are then
rated in one of the two highest long term and the highest short term
ratings of each Rating Agency for such securities, or such lower ratings
as will not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by either Rating Agency (as confirmed in
writing by the applicable Rating Agency);
(e) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that such
deposits are fully insured by the FDIC and are then rated in the highest
long term and the highest short term ratings of each Rating Agency for
such securities, or such lower ratings as will not result in the
downgrading or withdrawal of the ratings then assigned to the Certificates
by either Rating Agency (as confirmed in writing by the applicable Rating
Agency);
(f) 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 Certificates
by either Rating Agency (as confirmed in writing by the applicable Rating
Agency);
(g) repurchase obligations with respect to any security described in
clauses (a) and (b) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (d)
above;
(h) 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 the highest rating of each
Rating Agency, or such lower rating as will not result in the downgrading
or withdrawal of the rating then assigned to the Certificates by either
Rating Agency (as confirmed in writing by the applicable Rating Agency);
(i) units of a taxable money market portfolio having the highest
rating assigned by each Rating Agency and restricted to obligations issued
or guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United States
of America and repurchase agreements collateralized by such obligations;
(j) any mutual fund, money market fund, common trust fund or other
pooled investment vehicle, the assets of which are limited to instruments
that otherwise would constitute Permitted Investments hereunder, including
any such fund that is managed by the Trustee or any affiliate of the
Trustee or for which the Trustee or any affiliate of the Trustee acts as
an adviser as long as such fund is rated in at least the highest rating
category by each Rating Agency (if so rated by such Rating Agency;
provided, however, if S&P is a Rating Agency, then such mutual fund, money
market fund, common trust fund or other pooled investment vehicle shall
have been rated by S&P); and
(k) such other investments bearing interest or sold at a discount
acceptable to each Rating Agency as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by either
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 evidences the right to receive interest-only payments with respect to
the obligations underlying such instrument.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a
citizen or resident of the United States, a corporation, partnership (except as
provided in applicable Treasury Regulations), or other entity created or
organized in or under the laws of the United States or any State thereof or the
District of Columbia, an estate whose income is subject to United States federal
income tax regardless of its source or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
Trust and one or more Persons described in this clause (v) have the authority to
control all substantial decisions of the Trust (or, to the extent provided in
applicable Treasury Regulations, certain trusts in existence on August 20, 1996
which are eligible to elect to be treated as United States persons) unless such
Person has furnished the transferor and the Trustee with a duly completed
Internal Revenue Service Form W-8ECI or any applicable successor form, (vi) any
Person with respect to whom income on any Residual Certificate is attributable
to a foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of such Person or any other Person, (vii) a U.S.
partnership if any of its beneficial owners, directly or indirectly (other than
through a U.S. corporation), are (or are permitted to be under the related
partnership agreement) not persons described in clause (v), and (viii) any other
Person so designated by the Depositor based upon an Opinion of Counsel that the
Transfer of an Ownership Interest in a Residual Certificate to such Person may
cause the Trust REMIC hereunder to fail to qualify as a REMIC at any time that
the Certificates are outstanding. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and, with
the exception of Xxxxxxx Mac, a majority of its board of directors is not
selected by such government unit.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Physical Certificate: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated November 29,
2006, relating to the public offering of the Offered Certificates.
Rate Adjustment Date: As defined in Section 3.06.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If any such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee. References
herein to a given rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers.
Realized Losses: With respect to any Deposited Underlying
Certificate and any Distribution Date, the principal portion of any losses on
the underlying mortgage loans allocated to such Deposited Underlying Certificate
as of the related Deposited Underlying Certificate Distribution Date.
Record Date: With respect to any Distribution Date and any Class of
Certificates (other than the LIBOR Certificates), the last Business Day of the
month immediately preceding the month in which the related Distribution Date
occurs and with respect to any Distribution Date and the LIBOR Certificates, the
Business Day immediately preceding such Distribution Date.
Reference Bank Rate: As defined in Section 3.06.
Regular Certificates: As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be 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. 1506-1631 (January 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
Related Deposited Underlying Certificates: With respect to the Group
1 Certificates, the Group 1 Deposited Underlying Certificates, and with respect
to the Group 2 Certificates, the Group 2 Deposited Underlying Certificates.
Relief Act: The Servicemembers Civil Relief Act, or any comparable
state or local statute (including the comparable provisions under the California
Military and Veterans Code, as amended).
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Reserve Fund: The separate trust account for deposit of any Corridor
Agreement Payments that the Trustee may receive under the Corridor Agreement.
Reserve Fund Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.01 in the name of the Trustee
for the benefit of the Certificateholders and designated "Xxxxx Fargo Bank,
N.A., in trust for registered holders of BCAP 2006-RR1 Resecuritization
Pass-Through Certificates, Series 2006-RR1."
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: With respect to the Trustee, the Chairman or
Vice Chairman of the Board of Directors or Trustees, the Chairman or Vice
Chairman of the Executive or Standing Committee of the Board of Directors or
Trustees, the President, the Chairman of the Committee on Trust Matters, any
Vice President, the Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer, the Cashier, any Assistant Cashier, any Trust Officer or
Assistant Trust Officer, the Controller or any Assistant Controller or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers, and, in each case, with
particular responsibility for this transaction.
Rule 144A: Rule 144A promulgated under the Securities Act.
S&P: Standard and Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto. If S&P is designated as a
Rating Agency in the Preliminary Statement, for purposes of Section 8.05 the
address for notices to S&P shall be Standard and Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Monitoring Group, or such other address
as S&P may hereafter furnish to each other party to this Agreement.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
Senior Certificates: As specified in the Preliminary Statement.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, which as of the Closing Date are listed on Exhibit E
hereto.
Servicing Function Participant: As defined in Section 6.14(a).
Similar Law: As defined in Exhibit A-2 hereto.
Sponsor: Barclays Capital Inc., a Connecticut corporation, and its
successors in interest.
Startup Day: As defined in Section 2.04.
Subcontractor: Any third-party or Affiliated vendor, subcontractor
or other Person utilized by the Trustee that is not responsible for the overall
servicing (as "servicing" is commonly understood by participants in the
mortgage-backed securities market) but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB.
Subservicer: Any person that services the Deposited Underlying
Certificates on behalf of the Trustee or any Subservicer and is responsible for
the performance (whether directly or through Subservicers or Subcontractors) of
a substantial portion of the material servicing functions required to be
performed by the Trustee under this Agreement, with respect to some or all of
the Deposited Underlying Certificates, that are identified in Item 1122(d) of
Regulation AB.
Tax Matters Person: The Holder of the Class AR Certificates
designated as "tax matters person" of the Trust REMIC in the manner provided
under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations Section
301.6231(a)(7)-1.
Telerate Screen Page 3750: As defined in Section 3.06.
Transfer: Any direct or indirect transfer, sale, pledge,
hypothecation or other form of assignment of a Certificate.
Transferee: Any Person who is acquiring by Transfer a Certificate.
Trust: As defined in Section 2.01(b).
Trust Expenses: The amounts payable to the Trustee or the Depositor
pursuant to Sections 2.06, 3.01(a) or 6.05, any amounts payable from the
Distribution Account in respect of taxes, any other costs, expenses and
liabilities that are required to be borne by the Trust Fund in accordance with
applicable law or the terms of this Trust Agreement, as applicable; provided,
however, Trust Expenses shall not include the amount of any Trustee Fees
required to be paid to the Trustee by the Sponsor.
Trust Fund: The corpus of the Trust consisting of (i) the Deposited
Underlying Certificates, (ii) all distributions on the Deposited Underlying
Certificates payable after the Closing Date, (iii) the Distribution Account and
all amounts deposited therein pursuant to the applicable provisions of this
Agreement, (iv) the right of the Trust to enforce remedies under certain
agreements relating to the Deposited Underlying Certificates, (v) all present
and future claims, demands, causes and choses in action in respect of the
foregoing, including the rights of the Trust under the Deposited Underlying
Certificates; (vi) the Corridor Agreement, (vii) the Reserve Fund and the
Reserve Fund Account and (viii) all proceeds of the foregoing of every kind and
nature whatsoever, including, without limitation, all proceeds of the conversion
thereof, voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property that at any
time constitute all or part of or are included in the proceeds of the foregoing.
Trust REMIC: As described in the Preliminary Statement.
Trustee: Xxxxx Fargo Bank, N.A., a banking association organized
under the laws of the United States, and its successors and, if a successor
trustee is appointed hereunder, such successor.
Trustee Fee: The one-time fee payable to the Trustee by the Sponsor
as set forth in Section 6.05.
Voting Rights: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date of
determination, the Class AR Certificates will be entitled to 1% in the aggregate
of all Voting Rights (such Voting Rights to be allocated among the Holders of
Certificates of each such Class in accordance with their respective Percentage
Interests) and the remaining Voting Rights shall be allocated among Holders of
the remaining Classes of Certificates in proportion to the Certificate Principal
Balances of their respective Certificates on such date. The Voting Rights
allocated to a Class of Certificates will be allocated among all Holders of that
Class in proportion to the respective outstanding Certificate Principal
Balances, or Percentage Interest, of those Certificates.
Section 1.02 Interest Calculation Balances. (a) Interest in respect
of the Certificates shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
ARTICLE II
CONVEYANCE OF THE DEPOSITED UNDERLYING CERTIFICATES AND
THE ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of the Deposited Underlying Certificates.
(a) The Depositor, concurrently with the execution and delivery hereof, does
hereby transfer, convey, sell and assign to the Trustee, in trust on behalf of
the Holders of the Certificates, without recourse, all the right, title and
interest of the Depositor in and to the Deposited Underlying Certificates,
including all distributions or payments thereon payable after the Deposited
Underlying Certificate Distribution Date in November 2006. In connection with
such assignment, the Depositor shall have arranged for the Deposited Underlying
Certificates to be registered in the name of the Trustee as of the Closing Date
and, in the case of any Deposited Underlying Certificates that are in
certificated form, to be delivered to the Trustee as of the Closing Date.
The assignment of the Deposited Underlying Certificates accomplished
hereby is absolute and is intended as a sale. The Depositor hereby pledges and
grants to the Trustee a security interest in the Depositor's interest in the
Trust Fund to secure payment (in the event of recharacterization notwithstanding
the parties' intent) and performance by the Depositor of its obligations
hereunder. The Depositor and the Trustee, at the direction of the Depositor,
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Deposited Underlying Certificates, 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.
(b) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, a common law
trust (the "Trust") to be known, for convenience, as "BCAP 2006-RR1" and Xxxxx
Fargo Bank, N.A., is hereby appointed as Trustee in accordance with the
provisions of this Agreement.
Section 2.02 Issuance of Certificates. The Trustee acknowledges the
transfer and delivery to it of the Deposited Underlying Certificates in the
manner described in Section 2.01, and concurrently with such delivery has caused
to be duly executed, authenticated and delivered to or upon the order of the
Depositor, in exchange for the Deposited Underlying Certificates together with
all other assets (to the extent such other assets are deliverable on the Closing
Date) included in the definition of "Trust Fund," receipt of which is hereby
acknowledged, Certificates in authorized Denominations evidencing ownership of
the entire Trust Fund.
In connection with the issuance of the Certificates, the Trustee
shall deliver to the Depositor the following documents:
(a) an Officer's Certificate of the Trustee certifying as to:
(i) the Responsible Officers authorized to execute, authenticate and
deliver the Certificates and to execute and deliver this Agreement and any
other documents to be executed and delivered by it hereunder;
(ii) its authorizing resolutions applicable to the transactions
contemplated hereby;
(iii) its charter and by-laws; and
(b) such other approvals, opinions or documents as the Depositor may
request.
Section 2.03 Representations and Warranties of the Depositor. The
Depositor represents and warrants to the Trustee for the benefit of the
Certificateholders as follows:
(a) The Depositor has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware with limited liability company power and authority to own its
properties and conduct its business and to perform its obligations under this
Trust Agreement.
(b) This Trust Agreement has been duly authorized, executed and
delivered by the Depositor and, assuming the valid execution thereof by the
Trustee, this Trust Agreement will constitute a valid and binding agreement of
the Depositor enforceable in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws relating to
or affecting the enforcement of creditors' rights and by general equity
principles.
(c) Neither the issuance or delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein, nor
compliance with the provisions of this Trust Agreement, will conflict with or
result in the breach of any term or provision of the charter or by-laws of the
Depositor, and the Depositor is not in breach or violation of or in default
(nor, to the best of the Depositor's knowledge, has an event occurred which with
notice or lapse of time or both would constitute a default) under the terms of
(i) any agreement to which the Depositor is a party or by which it or its
properties are bound, or (ii) any law, decree, order, rule or regulation
applicable to the Depositor of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or arbitrator having
jurisdiction over its properties, the default in or the breach or violation of
which would have a material adverse effect on the Depositor or the ability of
the Depositor to perform its obligations under this Trust Agreement.
(d) No filing or registration with, notice to, or consent, approval,
authorization or order or other action of any court or governmental authority or
agency is required for the consummation by the Depositor of the transactions
contemplated by this Trust Agreement, except such as have been obtained.
(e) Upon execution and delivery by the Trustee of this Trust
Agreement and delivery to the Depositor of the Certificates, the Trust will
acquire the Deposited Underlying Certificates free of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest.
(f) It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall survive delivery of the
respective Deposited Underlying Certificates to the Trustee. Upon discovery by
the Depositor or the Trustee of a breach of any of the foregoing representations
and warranties, which breach materially and adversely affects the interests of
the Certificateholders in any Deposited Underlying Certificate (referred to
herein as a "breach"), the party discovering such breach shall give prompt
written notice to the other party, the Trustee and the Certificateholders. The
Depositor shall cure such breach in all material respects or, if such breach
cannot be cured within 60 days after receipt of such notice of breach or its
discovery of such breach, repurchase such Deposited Underlying Certificates if
so directed in writing by holders of at least 51% of the Percentage Interests of
each related Class of Certificates. The repurchase price for any such repurchase
shall be the outstanding principal balance of such Deposited Underlying
Certificates, plus accrued and unpaid interest thereon.
Section 2.04 REMIC Matters. (a) The Preliminary Statement sets forth
the designations as "regular interests" or "residual interests" for federal
income tax purposes of all interests created hereby. The "Startup Day" and the
"latest possible maturity date" for purposes of the REMIC Provisions shall be
the Closing Date and the Latest Possible Maturity Date, respectively. The Trust
REMIC shall have the calendar year as its fiscal year and shall use the accrual
method of accounting.
(b) For purposes of the Trust REMIC, the interest rate of each Class
of Regular Certificates (other than the Class CF Certificates) shall be its
Pass-Through Rate. The interest rate of the regular interest represented by the
Class CF Certificates shall be 5.00%. For federal income tax purposes, the Class
CS Certificates shall represent a "specified portion" of the interest payments
on the Group 2 Deposited Underlying Certificates.
Section 2.05 Limitation on Liability of the Depositor and Others.
Neither of the Depositor, or any of the directors, officers, employees or agents
of the Depositor shall be under any liability to the Trust 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 Person against any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor and any Affiliate, director,
officer, employee or agent of the Depositor may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor and its Affiliates and
any director, officer, employee or agent of the Depositor or its Affiliates
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense incurred in connection with (i) any audit, controversy or
judicial proceeding relating to a governmental taxing authority, (ii) the
performance of its duties and obligations and the exercise of (or failure to
exercise) its rights under this Agreement (including, with respect to the
Certificates), or (iii) any legal action relating to this Agreement or the
Certificates (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement and any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder), provided that any such loss, liability or
expense constitutes an "unanticipated expense incurred by the REMIC" within the
meaning of the REMIC Provisions. The Depositor shall not be under any obligation
to appear in, prosecute or defend any legal action that is not incidental to its
respective duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Depositor may in its
discretion undertake any such action that it may deem necessary or desirable in
respect of this Agreement and the rights and duties of the parties hereto and
interests of the Trustee, and the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor shall be entitled to be reimbursed therefor out of the Distribution
Account.
ARTICLE III
ADMINISTRATION OF THE DEPOSITED UNDERLYING CERTIFICATES
Section 3.01 Collection of Payments on Deposited Underlying
Certificates; Distribution Account, Reserve Fund Account. (a) The Trustee shall
establish and maintain with itself a trust account (the "Distribution Account")
entitled "Xxxxx Fargo Bank, N.A., in trust for registered holders of BCAP
2006-RR1 Resecuritization Pass-Through Certificates, Series 2006-RR1
Distribution Account," in which the Trustee shall, subject to the terms of this
paragraph and to Section 6.05, deposit each distribution received by the Trustee
with respect to the Deposited Underlying Certificates no later than the close of
business on the Business Day of receipt. On each Distribution Date, before
making the distributions referred to in Section 3.02, the Trustee shall withdraw
from the Distribution Account any amounts to be withheld pursuant to Section
6.05. The Trustee shall use all reasonable efforts to collect all payments due
with respect to the Deposited Underlying Certificates and, consistent with such
efforts, follow such normal and customary procedures as it deems necessary or
desirable. If the Trustee shall not have received a distribution with respect to
any Deposited Underlying Certificates by the Business Day after the date on
which such distribution was due and payable pursuant to the terms of such
Deposited Underlying Certificates, the Trustee shall notify the
Certificateholders, request such payment as promptly as possible in accordance
with law and shall, except as otherwise set forth in this paragraph, take such
legal action as directed by the Holders of Certificates entitled to a majority
of the aggregate Voting Rights. The reasonable legal fees and expenses incurred
by the Trustee in connection with the prosecution of any such legal action shall
be reimbursable to the Trustee out of the proceeds of any such action and shall
be retained by the Trustee prior to the deposit of any remaining proceeds in the
Distribution Account pending distribution thereof to the Certificateholders in
accordance with Section 3.02. In the event that the Trustee has reason to
believe that the proceeds of any such legal action may be insufficient to
reimburse it for its projected legal fees and expenses, the Trustee shall notify
the Certificateholders that it is not obligated to pursue any such available
remedies unless adequate indemnity for its legal fees and expenses is provided
by the Certificateholders. In the event any such indemnity is provided to the
Trustee, the Trustee shall take such action as shall be directed by the Holders
of Certificates entitled to a majority of the Voting Rights.
(b) All of the amounts on deposit in the Distribution Account shall
be held uninvested. The Trustee may invest funds in the Reserve Fund Account and
shall invest such funds in the Reserve Fund Account at the direction of the
Depositor in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, no later than the Business Day
on which such funds are required to be withdrawn from such account pursuant to
this Agreement. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in the Reserve Fund Account shall be
made in the name of the Trustee. The Trustee shall be entitled to sole
possession over each such investment, and any certificate or other instrument
evidencing any such investment shall be delivered directly to the Trustee or its
agent, together with any document of transfer necessary to transfer title to
such investment to the Trustee. In the event amounts on deposit in the Reserve
Fund Account are at any time invested in a Permitted Investment payable on
demand, the Trustee may: consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser of
(1) all amounts then payable thereunder and (2) the amount required to be
withdrawn on such date.
All income and gain realized from the investment of funds deposited
in the Reserve Fund Account held by the Trustee, shall be for the benefit of the
Depositor. The Depositor shall deposit in the Distribution Account the amount of
any loss of principal incurred in respect of any such Permitted Investment made
with funds in such accounts immediately upon realization of such loss.
Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
The Trustee shall not be liable for the amount of any loss incurred
with respect of any investment or lack of investment of funds held in the
Reserve Fund Account if made in accordance with this Section 3.01.
(c) Any amounts withheld pursuant to Section 3.01(a) or 6.05 on any
Distribution Date shall be allocated to reduce Available Principal Funds as set
forth in Section 3.04 for such Distribution Date.
(d) The Distribution Account shall at all times be an Eligible
Account. If at any time the Distribution Account ceases to be an Eligible
Account, the Trustee shall immediately establish and maintain a new Distribution
Account that is an Eligible Account, and shall immediately transfer all funds on
deposit in the former Distribution Account, to the new Distribution Account.
(e) The Trustee shall establish and maintain the Reserve Fund
Account, on behalf of the Class CF Certificateholders, to receive any Corridor
Agreement Payments. On or before each applicable Distribution Date, the Trustee
shall deposit in the Reserve Fund any Corridor Agreement Payment received from
the Corridor Provider for the related Distribution Date, and on each
Distribution Date, the Corridor Agreement Payment received on or before such
Distribution Date, along with the amount of any related Excess Funds in the
Reserve Fund, shall be distributed by the Trustee to the Class CF Certificates
in an amount up to the Interest Rate Corridor Amount for such Distribution Date.
If the sum of the Corridor Agreement Payment and the Excess Funds in
the Reserve Fund Account is less than the Interest Rate Corridor Amount for any
Distribution Date (such shortfall, a "Basis Risk Shortfall Carryover Amount"),
the Class CF Certificates shall not receive an amount equal to the Interest Rate
Corridor Amount on such Distribution Date. However, on future Distribution
Dates, if the sum of the Corridor Agreement Payment and any Excess Funds in the
Reserve Fund Account exceeds the Interest Rate Corridor Amount for such
Distribution Date, such excess shall be distributed by the Trustee to pay any
Basis Risk Shortfall Carryover Amounts outstanding from prior Distribution
Dates.
Any amounts remaining in the Reserve Fund after the earlier of (a)
the Class Principal Balance of the Class CF Certificates is reduced to zero or
(b) termination of the Trust, shall be distributed by the Trustee to the
Depositor.
The Trustee shall account for the Reserve Fund Account as an asset
of a grantor trust under subpart E, Part I of subchapter J of the Code and not
as an asset of the Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Reserve Fund Account are the Class CF
Certificateholders.
Notwithstanding any provision contained in this Agreement, the
Trustee shall not be required to make any payments from the Reserve Fund Account
except as expressly set forth in this Section 3.01(e).
Section 3.02 Distributions. (a) Upon receipt of the Deposited
Underlying Certificate Reports with respect to each Deposited Underlying
Certificate Distribution Date, the Trustee shall promptly calculate the amount
of distributions set forth in subsection (b) of this Section 3.02.
(b) On each Distribution Date, from Available Funds for each
Certificate Group (to the extent received by the Trustee), the Trustee shall
distribute from the Distribution Account to the Certificateholders, the amounts
set forth below:
(i) From Available Interest Funds for such Certificate Group, to the
Holders of the Classes of Certificates in such Certificate Group then
entitled to distributions of interest, their respective Interest
Distribution Amounts, allocated pro rata (based on their respective
Interest Distribution Amounts);
(ii) From Available Principal Funds for such Certificate Group, to
the Holders of the Classes of Certificates then entitled to distributions
of principal, distributed as follows:
(A) Available Principal Funds for the Group 1 Certificates
shall be distributed in the following order of priority:
1. to the Class AR Certificates, until their Class
Principal Balance is reduced to zero;
2. sequentially, to the Class PA, Class PB, Class PC,
Class PD and Class PE Certificates, in that order, until the
aggregate Class Principal Balance of those Classes is reduced
to the Aggregate Targeted Balance set forth on Exhibit D
hereto;
3. sequentially, to the Class TA and Class WZ
Certificates, in that order, until the Class Principal Balance
of each such Class is reduced to zero;
4. sequentially, to the Class PA, Class PB, Class PC,
Class PD and Class PE Certificates, in that order, without
regard to the Aggregate Targeted Balance set forth on Exhibit
D hereto, until the Class Principal Balance of each such Class
is reduced to zero; and
(B) Available Principal Funds for the Group 2 Certificates
shall be distributed to the Class CF Certificates, until their Class
Principal Balance is reduced to zero; and
(iii) any remaining Available Funds for any Certificate Group, to
the Holders of the Class AR Certificates.
(c) On each Distribution Date prior to the Class WZ Accrual
Termination Date, the interest accrued on the Class WZ Certificates shall be
distributed by the Trustee as principal in the following order of priority:
(i) to the Class TA Certificates, until their Class Principal
Balance is reduced to zero; and
(ii) to the Class WZ Certificates, until their Class Principal
Balance is reduced to zero.
(d) Distributions received on the Deposited Underlying Certificates
after any Distribution Date will be held in the Distribution Account by the
Trustee and distributed to Certificateholders on the next Distribution Date.
(e) Distributions of interest and principal, as applicable, and of
any other assets of the Trust pursuant to this Agreement (including, without
limitation, amounts payable from the Reserve Fund) to each Certificateholder
will be made, to the extent described above, on each Distribution Date in an
amount equal to each such Certificateholder's Percentage Interest multiplied by
the amount to be distributed in respect of the Certificates of the related
Class.
(f) Pro rata distributions among Classes of Certificates in respect
of interest are required to be made in proportion to the then-current amount of
interest to which those Certificates are entitled. Pro rata distributions among
Classes of Certificates in respect of principal are required to be made in
proportion to the then-current Class Principal Balances of the Certificates.
Section 3.03 Statements to Certificateholders. On each Distribution
Date, the Trustee shall prepare, based on the Deposited Underlying Certificate
Reports, and make available on its internet website, initially located at
"xxxx://xxx.xxxxxxx.xxx" (which may be obtained by any Certificateholder by
telephoning the Trustee at (000) 000-0000 or such other site as may be
designated by the Trustee) a statement (the "Distribution Statement") to each
Certificateholder, the Depositor and each Rating Agency stating:
(a) the amount of distributions on the Deposited Underlying
Certificates on the related Deposited Underlying Certificate Distribution Date
(separately identifying the amounts received with respect to each Deposited
Underlying Certificate) less any Trust Expenses and any amounts deposited in the
Distribution Account in error;
(b) the Interest Distribution Amount for such Distribution Date and
the amount thereof constituting payments in respect of any Accrued Certificate
Interest from prior Distribution Dates;
(c) the amount of any shortfall in the Interest Distribution Amount
for such Distribution Date, and the total unreimbursed Accrued Certificate
Interest through such Distribution Date;
(d) the Available Principal Funds for such Distribution Date;
(e) the outstanding Class Principal Balance or Notional Amount, as
applicable, of each Class of Certificates after giving effect to the
distribution of principal made on such Distribution Date;
(f) the outstanding principal balance of each Deposited Underlying
Certificate as of the immediately preceding Deposited Underlying Certificate
Distribution Date after giving effect to the distribution of principal made
thereon and any allocation of principal losses thereto in respect of such
Deposited Underlying Certificate Distribution Date;
(g) the amount of any Trust Expenses (including, without limitation,
the cost of various opinions of and advice from counsel required to be obtained
in connection with the Trustee's performance of its duties under this Agreement)
for such Distribution Date;
(h) the amount of any outstanding Basis Risk Shortfall Carryover
Amount for the Class CF Certificates;
(i) the amount deposited in the Reserve Fund Account; and
(j) the amount of distributions paid from the Reserve Fund Account
to the Class CF Certificates.
Section 3.04 Allocation of Realized Losses and Trust Expenses. (a)
On or prior to each Distribution Date, the Trustee shall determine the total
amount of Realized Losses allocated to each Deposited Underlying Certificate.
Any such Realized Losses shall be allocated to reduce the Class Principal
Balances of the Classes of Certificates in the applicable Certificate Group on a
pro rata basis in accordance with their respective Class Principal Balances (or
in the case of the Class WZ Certificates, the lesser of its outstanding Class
Principal Balance or its original Class Principal Balance).
(b) Any Trust Expenses paid by the Trust with respect to any
Distribution Date shall be allocated by the Trustee as a reduction of Available
Principal Funds for each Certificate Group, and shall be allocated as a
reduction of the Class Principal Balances of the Classes of Certificates in each
such Certificate Group, in each case pro rata, based on the respective Class
Principal Balances of the Classes of Certificates in such Certificate Group (or
in the case of the Class WZ Certificates, the lesser of its outstanding Class
Principal Balance or its original Class Principal Balance).
(c) Any allocation of Realized Losses or Trust Expenses as any
reduction of the Class Principal Balance of a Class of Certificates pursuant to
Section 3.04(a) or 3.04(b) above shall be applied to each Certificate of that
Class based on the Percentage Interest evidenced by such Certificate and shall
be accomplished by reducing the Certificate Principal Balance thereof, as
applicable, immediately following the distributions made on the related
Distribution Date in accordance with the definition of "Certificate Principal
Balance" herein.
Section 3.05 Notices to Trustee. (a) Upon receipt of any notice or
statement with respect to the Deposited Underlying Certificates, the Trustee
shall promptly transmit such notice to the affected Certificateholders. In the
event such notice requests or requires any action by the Trustee or the
Certificateholders, the Trustee shall not take any action except in accordance
with written instructions from the affected Certificateholders pursuant to the
fourth paragraph of Section 8.02.
(b) Upon receipt of notice of the final distribution on any
Deposited Underlying Certificate, the Trustee shall, if so required by the
Governing Agreement, surrender such Deposited Underlying Certificate to the
Deposited Underlying Certificate trustee, paying agent or other appropriate
entity for payment of the final distribution thereon.
Section 3.06 Determination of LIBOR. LIBOR for any Interest Accrual
Period (other than the first Interest Accrual Period) after the initial Interest
Accrual Period shall be determined as described below. On each Rate Adjustment
Date, LIBOR ("LIBOR") shall be established by the Trustee and as to any Interest
Accrual Period (other than the first Interest Accrual Period), LIBOR shall equal
the rate for United States dollar deposits for one month which appears on the
Dow Xxxxx Telerate Screen Page 3750 as of 11:00 A.M., London time, on the second
LIBOR Business Day (defined below) prior to the first day of such Interest
Accrual Period (each such day, a "Rate Adjustment Date"). "Telerate Screen Page
3750" means the display designated as page 3750 on the Telerate Service (or such
other page as may replace page 3750 on that service for the purpose of
displaying London interbank offered rates of major banks). If such rate does not
appear on such page (or such other page as may replace Page 3750 on that service
or such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for U.S. Dollar deposits) the rate shall
be the Reference Bank Rate. The Trustee shall determine the "Reference Bank
Rate" on the basis of the rates at which deposits in U.S. dollars are offered by
the reference banks (which shall be four major banks that are engaged in
transactions in the London interbank market) as of 11:00 A.M., London time, on
the day that is two LIBOR Business Days prior to the immediately preceding
Distribution Date to leading banks in the London interbank market. The Trustee
shall request the principal London office of each of the reference banks to
provide a quotation of its rate. If at least two such quotations are provided,
the rate shall be the arithmetic mean of the quotations. If on such date fewer
than two quotations are provided as requested, the rate shall be the arithmetic
mean of the rates quoted by one or more major banks in New York City, selected
by the Trustee on such date for deposits in U.S. Dollars to major banks in the
London interbank market, or if fewer than two such quotations are available, to
leading European and Canadian Banks. If no such quotations can be obtained, the
rate shall be LIBOR for the prior Distribution Date, or in the case of the first
Rate Adjustment Date, 5.320%. "LIBOR Business Day" means any day other than (i)
a Saturday or a Sunday or (ii) a day on which banking institutions in the city
of London, England are required or authorized by law to be closed.
The establishment of LIBOR by the Trustee and its subsequent
calculation of the Pass-Through Rates applicable to the Class CF and Class CS
certificates for the relevant Interest Accrual Period, in the absence of
manifest error, shall be final and binding.
Section 3.07 Nonpetition. The Trustee and the Depositor hereby agree
not to cause or participate in the filing of a petition in bankruptcy against
the Trust until 91 days after the occurrence of the termination and final
distribution pursuant to Section 7.01 of this Agreement.
ARTICLE IV
THE CERTIFICATES
Section 4.01 The Certificates. The Certificates shall be
substantially in the form attached hereto as Exhibit A. Each Certificate shall
also include the reverse of the Certificates substantially in the form of
Exhibit A-3. The Certificates shall be issuable in registered form, in the
minimum Denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount) and aggregate
Denominations per Class set forth in the Preliminary Statement.
Subject to Section 7.01 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the related Record Date either (x) by wire
transfer in immediately available funds to the account of such Holder at a bank
or other depository institution having appropriate facilities therefor, if such
Holder holds 100% of a Class of Offered Certificates or holds Certificates with
an aggregate initial Certificate Principal Balance of $1,000,000 or more and has
so notified the Trustee in writing at least five Business Days prior to the
related Record Date or (y) by check mailed by first class mail to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless authenticated by the Trustee by manual signature, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their authentication. On the Closing
Date, the Trustee shall authenticate the Certificates to be issued at the
direction of the Depositor, or any affiliate thereof.
Section 4.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Trustee shall maintain, or cause to be
maintained in accordance with the provisions of this Section 4.02, a Certificate
Register in which, subject to the provisions of subsections (b) and (c) below
and to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. Upon surrender for registration of transfer of
any Certificate, the Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized Denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
to the Trustee for registration of transfer or exchange shall be accompanied by
a written instrument of transfer in form satisfactory to the Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required by the
Trustee.
All Certificates surrendered for registration of transfer or
exchange shall be canceled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
The Certificate Registrar shall designate from time to time the
location of its offices for purposes of surrender, exchange and transfer of
Definitive Certificates. As of the Closing Date, the Certificate Registrar
designates its offices located at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services - BCAP
2006-RR1 for such purposes.
(b) No transfer of an ERISA-Restricted Certificate shall be made
(other than to the Depositor or an affiliate of the Depositor) unless the
Trustee shall have received a representation letter from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the Trustee.
For purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Physical Certificate, in the event the representation
letter referred to in the preceding sentence is not so furnished, such
representation shall be deemed to have been made to the Trustee by the
transferee's (including an initial acquirer's) acceptance of the
ERISA-Restricted Certificates. Notwithstanding anything else to the contrary
herein, any purported transfer of a Residual Certificate to a transferee that
does not make the representation above shall be void and of no effect.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 4.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements. The
Trustee shall not be required to monitor, determine or inquire as to the
compliance with the transfer restrictions with respect to any ERISA-Restricted
Certificate that is a Book-Entry Certificate, and the Trustee shall not have any
liability for transfers of any such Book-Entry Certificates made through the
book-entry facilities of any Depository or between or among Depository
Participants or Certificate Owners made in violation of the transfer
restrictions set forth herein.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee (other than the Depositor of an affiliate thereof) in the form
attached hereto as Exhibit C-1.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
4.02(c) shall be absolutely null and void and shall vest no rights in the
purported transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
4.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 4.02(b) and this
Section 4.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of
a Residual Certificate that was in fact not a Permitted Transferee at the
time it became a Holder or, at such subsequent time as it became other
than a Permitted Transferee, all payments made on such Residual
Certificate at and after either such time. Any such payments so recovered
by the Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee described in clauses (i) through (iv) of
the definition thereof.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 4.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel addressed to
the Trustee, which Opinion of Counsel shall not be an expense of the Trust Fund
or the Trustee, to the effect that the elimination of such restrictions will not
cause the Trust REMIC to fail to qualify as a REMIC at any time that the
Certificates are outstanding or result in the imposition of any tax on the Trust
Fund, a Certificateholder or another Person. Each Person holding or acquiring
any Ownership Interest in a Residual Certificate hereby consents to any
amendment of this Agreement which, based on an Opinion of Counsel addressed to
the Trustee, is reasonably necessary (a) to ensure that the record ownership of,
or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Residual Certificate which is
held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 4.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Trustee shall cause the
Depository to maintain book-entry records with respect to the Certificate Owners
and with respect to ownership and transfers of such Book-Entry Certificates;
(iii) ownership and transfers of registration of the Book-Entry Certificates on
the books of the Depository shall be governed by applicable rules established by
the Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee shall
deal with the Depository, Depository Participants and indirect participating
firms as representatives of the Certificate Owners of the Book-Entry
Certificates for purposes of exercising the rights of Holders 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 Certificate Owners; and (vi) the Trustee may conclusively rely and
shall be fully protected in relying upon information furnished by the Depository
with respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and persons shown on
the books of such indirect participating firms as direct or indirect Certificate
Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing, qualified or able to properly
discharge its responsibilities as Depository, and (ii) the Depositor is unable
to locate a qualified successor, or (y) the Depositor notifies the Trustee and
the Depository of its intent to terminate the book entry system through the
Depository and, upon receipt of notice of such intent from the Depository, the
Depository Participants holding beneficial interests in the Book-Entry
Certificates agree to initiate such termination, Certificate Owners representing
at least 51% of the Class Principal Balance of the Book-Entry Certificates
together advise the Trustee and the Depository through the Depository
Participants in writing that the continuation of a book entry system through the
Depository is no longer in the best interests of the Certificate Owners and the
Depository Participants consent to the termination, the Trustee, upon receipt of
notice of such event, shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
definitive, fully registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Trustee shall issue the Definitive
Certificates. None of the Depositor nor the Trustee shall be liable for any
delay in delivery of such instruction and each may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates all references herein to obligations imposed upon or to
be performed by the Depository shall be deemed to be imposed upon and performed
by the Trustee, to the extent applicable with respect to such Definitive
Certificates and the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder; provided that the Trustee shall
not by virtue of its assumption of such obligations become liable to any party
for any act or failure to act of the Depository.
Section 4.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Trustee such security or indemnity
as may be required by it to save it harmless, then, in the absence of notice to
the Trustee that such Certificate has been acquired by a protected purchaser,
the Trustee shall execute, authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like Class, tenor and Percentage Interest. In connection with the issuance of
any new Certificate under this Section 4.03, the Trustee may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee and its counsel) connected therewith. Any replacement
Certificate issued pursuant to this Section 4.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 4.04 Persons Deemed Owners. The Trustee and any agent of the
Trustee may treat the Person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions as provided
in this Agreement and for all other purposes whatsoever, and neither the Trustee
nor any agent of the Trustee shall be affected by any notice to the contrary.
Section 4.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor shall request such information in writing from the Trustee, then the
Trustee shall, within ten Business Days after the receipt of such request,
provide the Depositor or such Certificateholders at such recipients' expense the
most recent list of the Certificateholders of such Trust Fund held by the
Trustee, if any. The Depositor and every Certificateholder, by receiving and
holding a Certificate, agree that the Trustee shall not be held accountable by
reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 4.06 Maintenance of Office or Agency. Certificates may be
surrendered for registration of transfer or exchange at an office of the
Trustee. As of the Closing Date, the Trustee as the Certificate Registrar
designates its offices located at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services - BCAP
2006-RR1 for such purposes. The Trustee will give prompt written notice to the
Certificateholders of any change in such location of any such office or agency.
Section 4.07 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Trustee shall comply
with all federal withholding requirements respecting payments made or received
under the Corridor Agreement and payments to Certificateholders of interest or
original issue discount that the Trustee reasonably believes are applicable
under the Code. The consent of Certificateholders shall not be required for such
withholding. If the Trustee does withhold any amount from interest or original
issue discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Trustee shall indicate the amount withheld
to such Certificateholders. Such amounts shall be deemed to have been
distributed to such Certificateholders for all purposes of this Agreement.
ARTICLE V
[RESERVED]
ARTICLE VI
THE TRUSTEE
Section 6.01 Duties of Trustee. The Trustee shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument. If
any such instrument is found not to conform in any material respect to the
requirements of this Agreement, the Trustee shall notify the Certificateholders
of such non-conforming instrument in the event the Trustee, after so requesting,
does not receive a satisfactorily corrected instrument.
No provision of this Agreement shall be construed to relieve the
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 Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not
be liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and the
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 Trustee and conforming to the requirements of
this Agreement which it believed in good faith to be genuine and to have
been duly executed by the proper authorities respecting any matters
arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be conclusively determined by a court of
competent jurisdiction, that the Trustee was negligent in ascertaining the
pertinent facts;
(iii) the 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 Holders of Certificates evidencing not less than 25%
of the Voting Rights of Certificates relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising or omitting to exercise any trust or power
conferred upon the Trustee under this Agreement; and
(iv) the Trustee shall have no duty hereunder with respect to any
notice it may receive or which may be alleged to have been delivered to or
served upon it unless such notice is delivered to it or served upon it at
its Corporate Trust Office.
Section 6.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 6.01:
(i) the Trustee may request and conclusively rely upon and shall be
fully protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement (including, without limitation, any Deposited Underlying
Certificate Report), 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 and the Trustee shall have no responsibility to ascertain or
confirm the genuineness of any signature of any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any advice or Opinion of Counsel shall be full and
complete authorization and protection in respect of 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 Trustee shall not be liable 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;
(iv) the 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, unless requested in writing so to do by
Holders of Certificates evidencing not less than 25% of the Voting Rights
allocated to each Class of Certificates; provided, however, that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or
liability as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Depositor or, if paid by the
Trustee, shall be reimbursed by the Depositor upon demand;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent, attorney or
custodian appointed by the Trustee with due care;
(vi) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers hereunder
if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not assured
to it;
(vii) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the
investment security);
(viii) the Trustee shall be under no obligation to exercise any of
the trusts, rights or powers vested in it by 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
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which may be incurred therein or thereby; and
(ix) the Trustee shall have no obligation to appear in, prosecute or
defend any legal action that is not incidental to its duties hereunder and
which in its opinion may involve it in any expense or liability, unless
requested in writing so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that the Trustee may in its discretion
undertake any such action that it may deem necessary or desirable in
respect of this Agreement and the rights and duties of the parties hereto
and the interests of the Trustee and the Certificateholders hereunder. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust
Fund, and the Trustee shall be entitled to be reimbursed therefor out of
the Distribution Account.
The Trustee shall have no duty (A) to see to any recording, filing,
or depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest, or
to see to the maintenance of any such recording or filing or depositing or to
any rerecording, refiling or redepositing thereof, (B) to see to the provisions
of any insurance or (C) to see to the payment or discharge of any tax,
assessment, or other governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or levied against, any part of the Trust Fund
other than from funds available in the Distribution Account.
Section 6.03 Trustee Not Liable for Certificates. The recitals
contained herein and in the Certificates shall be taken as the statements of the
Depositor or the Transferor, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Agreement or of the Certificates or related
document. The Trustee shall not be accountable for the use or application by the
Depositor of any funds paid to the Depositor or deposited in or withdrawn from
the Distribution Account by the Depositor.
Section 6.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
and may transact business with the parties hereto and their Affiliates with the
same rights as it would have if it were not the Trustee.
Section 6.05 Trustee's Fees and Expenses. The Trustee shall be
entitled to receive a one-time fee payable by the Sponsor on or prior to the
Closing Date as separately agreed in writing with the Sponsor ("Trustee Fee").
The Trustee and any director, officer, employee, agent or "control person"
within the meaning of the Securities Act and the Exchange Act ("Control Person")
of the Trustee shall be indemnified by the Trust and held harmless against any
loss, liability or expense (including reasonable attorney's fees) (i) incurred
in connection with any claim or legal action relating to (a) this Agreement, (b)
the Deposited Underlying Certificates or (c) the Certificates, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence in the performance of any of the Trustee's duties or by reckless
disregard of obligations and duties hereunder, (ii) incurred in connection with
the performance of any of the Trustee's duties or the exercise of (or failure to
exercise) its rights hereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of the Trustee's duties or by reckless disregard of
obligations and duties hereunder, and (iii) incurred by reason of any action of
the Trustee taken at the direction of the Certificateholders; provided, that any
such loss, liability or expense constitutes an "unanticipated expense incurred
by the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii). Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Trustee hereunder. Except as
otherwise provided in this Agreement or a separate letter agreement between the
Trustee and the Depositor, the Trustee shall not be entitled to payment or
reimbursement for any routine ongoing expenses incurred by the Trustee in the
ordinary course of its duties as Trustee under this Agreement or for any other
routine expenses incurred by the Trustee; provided, however, no expense shall be
reimbursed hereunder if it would not constitute an "unanticipated expense
incurred by the REMIC" within the meaning of the REMIC Provisions. Without
limiting the foregoing, and except for any such expense, disbursement or advance
as may arise from the Trustee's negligence, bad faith or willful misconduct, the
Trustee shall be reimbursed by the Trust for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Agreement with respect to: (A) the reasonable
compensation and the expenses and disbursements of its counsel not associated
with the closing of the issuance of the Certificates and (B) the reasonable
compensation, expenses and disbursements of any accountant, engineer, appraiser
or other agent that is not regularly employed by the Trustee, to the extent that
the Trustee must engage such Persons to perform acts or services hereunder. The
Trust shall fulfill its obligations under this paragraph from amounts on deposit
from time to time in the Distribution Account.
Section 6.06 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a corporation or association organized and doing
business under the laws of a state or the United States of America, authorized
under the laws of the United Stated of America to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by a federal or state authority and with a credit
rating that would not cause any of the Rating Agencies to reduce or withdraw
their respective then-current ratings of any class of certificates (or having
provided security from time to time as is sufficient to avoid the reduction). If
such corporation or association 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 6.06 the combined
capital and surplus of such corporation or association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.07. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its affiliates.
Section 6.07 Resignation and Removal of Trustee. The Trustee may at
any time resign and be discharged from the trust hereby created by giving
written notice of resignation to the Depositor, each Rating Agency and the
Certificateholders not less than 60 days before the date specified in such
notice when, subject to Section 6.08, such resignation is to take effect, and
acceptance by a successor trustee in accordance with Section 6.08 meeting the
qualifications set forth in Section 6.06. The resignation shall not be effective
until a successor trustee has been assigned. If no successor trustee meeting
such qualifications shall have been so appointed by the Depositor and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.06 and shall fail to resign after written
request thereto by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a tax
is imposed with respect to the Trust Fund by any state in which the Trustee or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different trustee, then the Depositor shall remove the Trustee
and appoint a successor trustee by written instrument, in triplicate, one copy
of which instrument shall be delivered to the Trustee so removed, one copy of
which shall be delivered to the Depositor and one copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys in fact duly authorized, one complete set of which instruments
shall be delivered by the successor Trustee to the Depositor, one complete set
to the Trustee so removed and one complete set to the successor so appointed.
Notice of any removal of the Trustee shall be given to each Rating Agency by the
successor trustee. Any resignation or removal of the Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Section 6.07 shall
become effective upon acceptance by the successor trustee of appointment as
provided in Section 6.08.
If the Trustee fails to provide the required information or perform
the required duties related to the Depositor's reporting obligations under the
Exchange Act with respect to the Trust Fund, the Depositor shall terminate the
Trustee without the consent of any of the Certificateholders. In addition, the
holders of certificates evidencing at least 51% of the Voting Rights of the
Certificates may at any time remove the Trustee and appoint a successor Trustee.
Notice of any removal of the Trustee shall be given by the successor trustee to
each Rating Agency.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions described above will become
effective upon acceptance of appointment by the successor trustee.
A successor trustee will not be appointed unless the successor
trustee meets the eligibility requirements described above and its appointment
does not adversely affect the then-current ratings of the Certificates.
Section 6.08 Successor Trustee. Any successor trustee appointed as
provided in Section 6.07 shall execute, acknowledge and deliver to the Depositor
and to its predecessor Trustee an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor 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 the like effect as if originally
named as Trustee herein. The Depositor and the predecessor 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
trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 6.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 6.06 and its appointment shall not
adversely affect the then current ratings of the Certificates, as confirmed in
writing by each Rating Agency.
Upon acceptance by a successor trustee of appointment as provided in
this Section 6.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance by the successor trustee of
appointment, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 6.09 Merger or Consolidation of Trustee. Any corporation or
other entity into which the Trustee may be merged or converted or with which it
may be consolidated or any corporation or other entity resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation or other entity succeeding to the business of the Trustee, shall
be the successor of the Trustee hereunder, provided that such corporation or
other entity shall be eligible under the provisions of Section 6.06, without the
execution or filing of any paper or further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 6.10 [Reserved].
Section 6.11 Tax Matters. It is intended that the assets with
respect to which a REMIC election is to be made, as set forth in the Preliminary
Statement, shall constitute, and that the conduct of matters relating to such
assets shall be such as to qualify such assets as, a "real estate mortgage
investment conduit" as defined in and in accordance with the REMIC Provisions.
In furtherance of such intention, the Trustee covenants and agrees that it shall
act as agent (and the Trustee is hereby appointed to act as agent) on behalf of
the Trust REMIC and that in such capacity it shall:
(a) prepare, execute, and file, or cause to be prepared and filed,
in a timely manner, a U.S. Real Estate Mortgage Investment Conduit (REMIC)
Income Tax Return (Form 1066 or any successor form adopted by the Internal
Revenue Service) and prepare and file or cause to be prepared and filed with the
Internal Revenue Service and applicable state or local tax authorities income
tax or information returns for each taxable year with respect to the Trust
REMIC, containing such information and at the times and in the manner as may be
required by the Code or state or local tax laws, regulations, or rules, and
furnish or cause to be furnished to Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby,
including without limitation, the calculation of any original issue discount
using the prepayment assumption identified in the Prospectus Supplement;
(b) apply for an Employee Identification Number from the Internal
Revenue Service via Form SS-4 or other acceptable method for the Trust REMIC and
within thirty days of the Closing Date, furnish or cause to be furnished to the
Internal Revenue Service, on Form 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code.
The Trustee shall deliver or cause to be delivered the federal taxpayer
identification number of the Grantor Trust on an IRS Form W-9 to the Corridor
Provider prior to the first Corridor Agreement Payment in January 2007 and, if
requested by the Corridor Provider, an applicable IRS Form W-8IMY of the Trust.
Each non-exempt Certificateholder of record appearing on the applicable
certificate register, shall provide applicable certification to the Trustee
(with copies directly from such Class CF Certificateholder to the Corridor
Provider) to enable the Trustee to make payments to such Class CF
Certificateholder without federal withholding or backup withholding, and as
authorized by the Certificateholders, the Trustee shall forward any such
certification with respect to the Class CF Certificates received to the Corridor
Provider;
(c) make or cause to be made elections that such assets be treated
as a REMIC on the federal tax return for its first taxable year (and, if
necessary, under applicable state law);
(d) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee described in clauses (i)-(iv) of the definition thereof, or an agent
(including a broker, nominee or other middleman) of a non Permitted Transferee
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(e) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the status as a REMIC under the REMIC Provisions;
(f) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status;
(g) not permit the creation of any interests in the Trust REMIC
other than the Certificates;
(h) not receive any amount representing a fee or other compensation
for services (except as otherwise permitted by this Agreement);
(i) receive any income attributable to any asset which is neither a
"qualified mortgage" nor a "permitted investment" within the meaning of the
REMIC Provisions;
(j) not receive any contributions to the Trust REMIC after the
Startup Day that would be subject to tax under Section 860G(d) of the Code;
(k) not dispose of any assets of the Trust REMIC at a gain if such
disposition would be a "prohibited transaction" within the meaning of Section
860F(a)(2) of the Code;
(l) pay, from the sources specified in the second to last paragraph
of this Section 6.11, the amount of any federal or state tax, including
prohibited transaction taxes as described below, imposed on the Trust REMIC
prior to its termination when and as the same shall be due and payable (but such
obligation shall not prevent the Trustee or any other appropriate Person from
contesting any such tax in appropriate proceedings and shall not prevent the
Trustee from causing the withholding of payment of such tax, if permitted by
law, pending the outcome of such proceedings);
(m) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other Person as may be required
to sign such returns by the Code or state or local laws, regulations or rules;
and
(n) maintain records relating to the Trust REMIC, including but not
limited to the income, expenses, assets and liabilities thereof and the adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information.
The Holder of the largest Percentage Interest of the Class AR
Certificates shall act as Tax Matters Person for the Trust REMIC, within the
meaning of Treasury Regulations Section 1.860F-4(d), and the Trustee is hereby
designated as agent of such Certificateholder for such purpose (or if the
Trustee is not so permitted, such Holder shall be the Tax Matters Person in
accordance with the REMIC Provisions). In such capacity, the Trustee shall, as
and when necessary and appropriate, represent the Trust REMIC in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of the Trust REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of the Trust REMIC, and otherwise act on behalf of the Trust REMIC in
relation to any tax matter or controversy involving it.
In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within ten (10) days after the Closing Date all information or data that the
Trustee requests in writing and determines to be relevant for tax purposes to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and, in the case of the Class CF Certificates, the allocation
of such price between the related REMIC regular interest and the beneficial
interest in the Corridor Agreement and other Grantor Trust assets. The Depositor
hereby indemnifies the Trustee for any losses, liabilities, damages, claims or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor to provide, or to cause to
be provided, accurate information or data to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of
the Trust REMIC hereunder as defined in Section 860F(a)(2) of the Code, on the
"net income from foreclosure property" of the Trust REMIC as defined in Section
860G(c) of the Code, on any contribution to the Trust REMIC after the Startup
Day pursuant to Section 860G(d) of the Code, or any other tax is imposed, if not
paid as otherwise provided for herein, such tax shall be paid by (i) the
Trustee, if any such other tax arises out of or results from a breach by the
Trustee, of any of its obligations under this Agreement, in all other cases, or
in the event that the Trustee fails to honor its obligations under the preceding
clause (i), any such tax will be paid with amounts otherwise to be distributed
to the Certificateholders, as provided in Section 3.02.
The parties intend that the portion of the Trust Fund constituting
the Grantor Trust, shall constitute, and that the affairs of the Grantor Trust
shall be conducted so as to qualify such portion as a "grantor trust" under
subpart E, Part I of subchapter J of the Code, and the provisions hereof shall
be interpreted consistently with this intention. In furtherance of such
intention, the Trustee shall file or cause to be filed with the Internal Revenue
Service together with Form 1041 or such other form as may be applicable and
shall furnish or cause to be furnished, to the Class CF Certificateholders, the
amounts with respect to the Corridor Agreement and the Reserve Fund Account that
are received or accrued, as applicable, in the time or times and in the manner
required by the Code.
Section 6.12 Tax Classification of Corridor Agreement and Reserve
Fund Account. For federal income tax purposes, the Trustee shall treat the
Reserve Fund Account and the Corridor Agreement as beneficially owned by the
holders of the Class CF Certificates and shall treat such portion of the Trust
Fund as a grantor trust under subpart E, Part I of subchapter J of the Code.
Accordingly, the Class CF Certificates will comprise two components - a regular
interest in the Trust REMIC and an interest in a notional principal contract.
The Trustee shall allocate the issue price for a Class of Certificates between
the respective components for purposes of determining the issue price of the
related regular interest component based on information received from the
Depositor.
Section 6.13 Periodic Filings. (a) The Trustee shall reasonably
cooperate with the Depositor in connection with the reporting requirements of
the Trust under the Exchange Act. The Trustee shall prepare for execution by the
Depositor any Forms 10-D and 10-K and certain Form 8-K's (not to include any
Form 8-K related to the filing of this Agreement and any amendments thereto),
required by the Exchange Act and the rules and regulations of the Commission
thereunder, in order to permit the timely filing thereof, and the Trustee shall
file (via the Commission's Electronic Data Gathering and Retrieval System, or
XXXXX) such Forms executed by the Depositor.
(b) Within 15 days after each Distribution Date (subject to
permitted extensions under the Exchange Act), the Trustee shall prepare and file
on behalf of the Trust any Form 10-D required by the Exchange Act, in form and
substance as required by the Exchange Act. The Trustee shall file each Form 10-D
with a copy of the related Distribution Statement attached thereto. Any
disclosure in addition to the Distribution Statement that is required to be
included on Form 10-D ("Additional Form 10-D Disclosure") shall be reported to
the Depositor and the Trustee by the parties set forth on Exhibit F and directed
and approved by the Depositor pursuant to the following paragraph. The Trustee
will have no duty or liability for any failure hereunder to determine or prepare
any Additional Form 10-D Disclosure, except as set forth in the next paragraph.
As set forth on Exhibit F hereto, within 5 calendar days after the
related Distribution Date, the parties, to the extent described on Exhibit F,
shall be required to provide to the Trustee and the Depositor, to the extent
known by such applicable parties, any Additional Form 10-D Disclosure, the form
and substance of the Additional Form 10-D Disclosure described on Exhibit F
applicable to such party (and shall include with such Additional Form 10-D
Disclosure an Additional Disclosure Notification (the "Additional Disclosure
Notification") in the form attached hereto as Exhibit H), and the Depositor will
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. The Trustee has
no duty under this Agreement to monitor or enforce the performance by the
parties listed on Exhibit F (other than with respect to the Trustee) of their
duties under this paragraph or proactively solicit or procure from such parties
any Additional Form 10-D Disclosure information; provided, however, the Trustee
shall cooperate with the Depositor in a reasonable manner in order for the
Depositor to comply with its reporting obligations under the Exchange Act as set
forth in Section 6.13(a). The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Additional Form 10-D Disclosure on Form 10-D pursuant to this
paragraph. The Trustee shall compile all such information provided to it in a
Form 10-D prepared by it.
After preparing the Form 10-D, the Trustee shall forward
electronically a copy of the Form 10-D to the Depositor for approval and
execution. No later than 2 Business Days prior to the 15th calendar day after
the related Distribution Date, an 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 Trustee. If a
Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be
amended, the Trustee will follow the procedures set forth in Section
6.13(f)(ii). Promptly (but not later than one Business Day) after filing with
the Commission, the Trustee will make available on its internet website a final
executed copy of each Form 10-D prepared and filed by the Trustee. Form 10-D
requires the Depositor 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
Depositor was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days." The Depositor hereby instructs the
Trustee, with respect to each Form 10-D, to check "yes" for each item unless the
Trustee has received timely prior written notice from the Depositor that the
answer should be "no" for an item. The Depositor shall notify the Trustee in
writing, as soon as reasonably practicable but no later than 5 Business Days
prior to the 15th calendar day after the related Distribution Date with respect
to the filing of a report on Form 10-D, if the answer to the questions should be
"no." The Trustee shall be entitled to rely on such instructions in preparing
and/or filing any such Form 10-D. The Depositor acknowledges that the
performance by the Trustee of its duties under this Section 6.13(b) related to
the timely preparation and filing of Form 10-D is contingent upon the Depositor
observing all applicable deadlines in the performance of their duties under this
Section 6.13(b). The Trustee shall have no liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly prepare
and/or timely file such Form 10-D, where such failure results from the Trustee's
inability or failure to receive, on a timely basis, any information from any
party hereto (other than the Trustee or any Subcontractor utilized by the
Trustee) needed to prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful misconduct.
(c) On or before 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"), commencing in March 2007, the 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 Trustee within the applicable
time frames set forth in this Agreement, (i) an annual compliance statement for
the Trustee and each Subservicer engaged by the Trustee, as described under
Section 6.15, (ii)(A) the annual reports on assessment of compliance with
servicing criteria for the Trustee and each Subservicer or Servicing Function
Participant utilized by the Trustee, as described under Section 6.14, and (B) if
any such report on assessment of compliance with servicing criteria described
under Section 6.14 identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or such report on assessment of
compliance with servicing criteria described under Section 6.14 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 Trustee, each Subservicer and each
Servicing Function Participant utilized by the Trustee, as described under
Section 6.14, and (B) if any registered public accounting firm attestation
report described under Section 6.14 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 certification in the
form attached hereto as Exhibit K, with such changes as may be necessary or
appropriate as a result of changes promulgated by the Commission (the "Sarbanes
Certification"), which shall be signed by the senior officer of the Depositor in
charge of securitization. Any disclosure or information in addition to (i)
through (iv) above that is required to be included on Form 10-K ("Additional
Form 10-K Disclosure") shall be reported to the Depositor and the Trustee by the
parties set forth on Exhibit J and directed and approved by the Depositor
pursuant to the following paragraph. The Trustee will have no duty or liability
for any failure hereunder to determine or prepare any Additional Form 10-K
Disclosure, except as set forth in the next paragraph.
As set forth on Exhibit J hereto, no later than March 1 of each year
that the Trust is subject to the Exchange Act reporting requirements, commencing
in 2007, the parties, to the extent described on Exhibit J, shall be required to
provide to the Trustee and the Depositor, to the extent known by such applicable
parties, any Additional Form 10-K Disclosure, the form and substance of the
Additional Form 10-K Disclosure described on Exhibit J applicable to such party
(and shall include with such Additional Form 10-K Disclosure an Additional
Disclosure Notification in the form attached hereto as Exhibit H), and 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. The
Trustee has no duty under this Agreement to monitor or enforce the performance
by the parties listed on Exhibit J (other than with respect to the Trustee) of
their duties under this paragraph or proactively solicit from such parties any
Additional Form 10-K Disclosure information; provided, however, the Trustee
shall cooperate with the Depositor in a reasonable manner in order for the
Depositor to comply with its reporting obligations under the Exchange Act as set
forth in Section 6.13(a). The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Additional Form 10-K Disclosure on Form 10-K pursuant to this
paragraph. The Trustee shall compile all such information provided to it in a
Form 10-K prepared by it.
After preparing the Form 10-K, the Trustee shall forward
electronically a copy of the Form 10-K to the Depositor for approval and
execution. 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
instructs the Trustee, with respect to each Form 10-K, to check "yes" for each
item unless the Trustee has received timely prior written notice from the
Depositor that the answer should be "no" for an item. The Depositor shall notify
the Trustee in writing by March 1st if the answer to the questions should be
"no." The Trustee shall be entitled to rely on such instructions in preparing
and/or filing any such Form 10-K. No later than 5:00 p.m. EST 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 Trustee. If a Form 10-K cannot be filed on time or if a previously
filed Form 10-K needs to be amended, the Trustee will follow the procedures set
forth in Section 6.13(f)(ii). Promptly (but no later than one Business Day)
after filing with the Commission, the Trustee will make available on its
internet website a final executed copy of each Form 10-K prepared and filed by
the Trustee. The Depositor acknowledges that the performance by the Trustee of
its duties under this Section 6.13(c) related to the timely preparation and
filing of Form 10-K is contingent upon the Depositor observing all applicable
deadlines in the performance of their duties under this Section 6.13(c), Section
6.13(d) and Section 6.14. The Trustee shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 10-K, where such failure results from the
Trustee's inability or failure to receive, on a timely basis, any information
from any 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) In connection with the execution of a Sarbanes Certification,
the Trustee shall sign a certification (in the form attached hereto as Exhibit
I, with such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission) for the benefit of the Depositor and its
officers, directors and Affiliates. Such certification shall be delivered to the
Depositor no later than March 10th of each year (or if such day is not a
Business Day, the immediately preceding Business Day) and the Depositor shall
deliver the Sarbanes Certification no later than the time set forth for the
delivery to the Trustee of the signed Form 10-K pursuant to Section 6.13(c) for
such year. In the event that prior to the filing date of the Form 10-K in March
of each year, the Trustee has actual knowledge of information material to the
Sarbanes Certification that was not disclosed on the certification set forth in
Exhibit K, the Trustee shall promptly notify the Depositor. In addition, (i) the
Trustee shall indemnify and hold harmless the Depositor and the Sponsor and
their officers, directors, employees, agents 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 any breach of the Trustee's obligations under this Section 6.13(d) or
the Trustee's material misstatement, omission, negligence, bad faith or willful
misconduct in connection therewith. If the indemnification provided for herein
is unavailable or insufficient to hold harmless any indemnified party, then (i)
the Trustee agrees in connection with a breach of the Trustee's obligations
under this Section 6.13(d) or the Trustee's material misstatement, omission,
negligence, bad faith or willful misconduct in connection therewith that it
shall contribute to the amount paid or payable by the Depositor and the Sponsor
as a result of the losses, claims, damages or liabilities of the Depositor and
the Sponsor in such proportion as is appropriate to reflect the relative fault
of the Depositor and the Sponsor on the one hand and the Trustee on the other.
The indemnification and contribution obligations set forth in this Section
6.13(d) shall survive the termination of this Agreement or the earlier
resignation or removal of the Trustee.
(e) [Reserved].
(f) (i) The obligations set forth in paragraphs (a) through (d) of
this Section shall only apply with respect to periods for which reports are
required to be filed with respect to the Trust under the Exchange Act. On or
prior to January 30 of the first year in which the Trustee is able to do so
under applicable law, the Trustee shall prepare and file a Form 15 Suspension
Notification with respect to the Trust, with a copy to the Depositor. At the
start of any fiscal year, including any fiscal year after the filing of a Form
15 Suspension Notification, if the number of Holders of the Offered Certificates
of record exceeds the number set forth in Section 15(d) of the Exchange Act or
the regulations promulgated pursuant thereto which would cause the Trust to
again become subject to the reporting requirements of the Exchange Act, the
Trustee shall recommence preparing and filing reports on Form 10-K, 10-D and 8-K
as required pursuant to this Section 6.13 and the parties hereto shall again
have the obligations set forth in this Section 6.13.
(ii) In the event that the 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 pursuant to 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, the Trustee will
promptly notify the Depositor. In the case of Form 10-D and 10-K, the
Depositor and Trustee will thereupon prepare and file, and the other
parties shall cooperate in connection with such preparation and filing, a
Form 12b-25 and a 10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25
of the Exchange Act. In the case of Form 8-K, the 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 succeeding Form 10-D. In the event that any
previously filed Form 8-K, 10-D or 10-K needs to be amended, in connection
with any Additional Form 10-D Disclosure (other than, in the case of Form
10-D, for the purpose of restating any Distribution Statement), Additional
Form 10-K Disclosure or Form 8-K Disclosure Information, the Trustee will
notify the Depositor and such other parties to the transaction as are
affected by such amendment, and the Depositor and the Trustee shall
prepare and file, and such other parties will cooperate in connection with
such preparation and filing, any necessary Form 8-K/A, 10-D/A or 10-K/A.
Any Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K shall
be signed by an officer or a senior officer of the Depositor. The
Depositor acknowledges that the performance by the Trustee of its duties
under this Section 6.13(f) related to the timely preparation 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 observing all applicable deadlines in the
performance of their duties under this Section 6.13 and Section 6.14. The
Trustee shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare and/or
timely file any such Form 15, Form 12b-25 or any amendments to Forms 8-K,
10-D or 10-K, where such failure results from the Trustee's inability or
failure to obtain or receive, on a timely basis, any information from any
party hereto needed to prepare, arrange for execution or file such Form
15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
(g) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and
also if requested by the Depositor, the Trustee shall prepare and file on behalf
of the Trust any Form 8-K, as required by the Exchange Act, provided that the
Depositor shall file the initial Form 8-K in connection with the issuance of the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K (other than the initial
Form 8-K) ("Form 8-K Disclosure Information") shall be reported to the Depositor
and the Trustee by the parties set forth on Exhibit G and directed and approved
by the Depositor pursuant to the following paragraph. The Trustee will have no
duty or liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except as set forth in the next
paragraph.
As set forth on Exhibit G hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than the end of
business (New York City time) on the 2nd Business Day after the occurrence of a
Reportable Event the parties, to the extent described on Exhibit G, shall be
required to provide to the Depositor, to the extent known by such applicable
parties, any Form 8-K Disclosure Information, the form and substance of the Form
8-K Disclosure Information described on Exhibit G applicable to such party (and
shall include with such Form 8-K Disclosure Information, an Additional
Disclosure Notification in the form attached hereto as Exhibit H), and the
Depositor will 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
Trustee has no duty under this Agreement to monitor or enforce the performance
by the parties listed on Exhibit G (other than with respect to the Trustee) of
their duties under this paragraph or proactively solicit or procure from such
parties any Form 8-K Disclosure Information; provided, however, the Trustee
shall cooperate with the Depositor in a reasonable manner in order for the
Depositor to comply with its reporting obligations under the Exchange Act as set
forth in Section 6.13(a). The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Form 8-K Disclosure Information on Form 8-K pursuant to this
paragraph. The Trustee shall compile all such information provided to it in a
Form 8-K prepared by it.
After preparing the Form 8-K, the Trustee shall no later than 12:00
noon (New York City time) on the 3rd Business Day after the Reportable Event but
in no case without having had notice for 24 hours forward electronically a draft
copy of the Form 8-K to the Depositor for review. No later than 12:00 noon (New
York City time) on the 4th Business Day after the Reportable Event, an 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 Trustee. If a Form 8-K cannot be filed on time or if a previously
filed Form 8-K needs to be amended, the Trustee will follow the procedures set
forth in Section 6.13(f)(ii). Promptly (but no later than one Business Day)
after filing with the Commission, the Trustee will, make available on its
internet website a final executed copy of each Form 8-K prepared and filed by
the Trustee. The Depositor acknowledges that the performance by the Trustee of
its duties under this Section 6.13(g) related to the timely preparation,
arrangement for execution and filing of Form 8-K is contingent upon the
Depositor observing all applicable deadlines in the performance of its duties
under this Section 6.13(g). The Trustee shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 8-K, where such failure results from the
Trustee's inability or failure to obtain or receive, on a timely basis, any
information from any party hereto (other than the Trustee or any Subcontractor
utilized by the Trustee) needed to prepare, arrange for execution or file such
Form 8-K, not resulting from its own negligence, bad faith or willful
misconduct.
(h) The Trustee shall have no liability for any loss, expense,
damage or claim arising out of or resulting from (i) the accuracy or inaccuracy
of any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form
8-K Disclosure Information (excluding any information therein provided by the
Trustee or any Subcontractor utilized by the Trustee) provided to the Trustee in
connection with the preparation of Forms 10-D, 10-K and 8-K pursuant to this
Section 6.13, or (ii) the failure of the Depositor to approve for filing any
Forms 10-D, 10-K and 8-K required to be prepared by the Trustee pursuant to this
Section 6.13, in either case, not resulting from the Trustee's own negligence,
bad faith or misconduct.
Any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure
or Form 8-K Disclosure Information required to be provided to the Trustee shall
be sent (by email at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx and facsimile at
410-715-2380) in XXXXX-compatible format, or in such other format as otherwise
agreed upon by the Trustee, the Depositor and the party providing such
information. With respect to any notice required to be delivered by the Trustee
to the Depositor pursuant to Section 6.13 of this Agreement, the Trustee may
deliver such notice, notwithstanding any contrary provision in Section 8.05, via
facsimile to 000-000-0000 or telephonically by calling the General Counsel at
212-412-4000. The signing party at the Depositor can be contacted at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, Facsimile: (212)
412-7519, or such other address as to which the Depositor has provided prior
written notice to the Trustee.
Section 6.14 Annual Reports on Assessment of Compliance with
Servicing Criteria; Annual Independent Public Accountants' Attestation Report.
(a) Not later than March 5th of each calendar year commencing in
2007, the Trustee shall deliver, and the Trustee shall cause each Subcontractor
or Subservicer utilized by the Trustee, and determined by the Trustee to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB (in each case, a "Servicing Function Participant"), to deliver,
each at its own expense, to the Depositor, a report on an assessment of
compliance with the Servicing Criteria applicable to it that contains (A) a
statement by such party of its responsibility for assessing compliance with the
Servicing Criteria applicable to it, (B) a statement that such party used the
Servicing Criteria to assess compliance with the applicable Servicing Criteria,
(C) such party's assessment of compliance with the applicable Servicing Criteria
as of and for the period ending the end of the fiscal year covered by the Form
10-K required to be filed pursuant to Section 6.13, including, if there has been
any material instance of noncompliance with the applicable Servicing Criteria, a
discussion of each such failure and the nature and status thereof, and (D) a
statement that a registered public accounting firm has issued an attestation
report on such Person's assessment of compliance with the applicable Servicing
Criteria as of and for such period. Each such assessment of compliance report
shall be addressed to the Depositor and signed by an authorized officer of the
Trustee, and shall address each of the applicable Servicing Criteria set forth
on Exhibit E hereto, or as set forth in the notification furnished to the
Depositor and the Trustee pursuant to Section 6.14(c). The Trustee hereby
acknowledges and agrees that its assessment of compliance will cover the items
identified on Exhibit E hereto as being covered. The parties to this Agreement
acknowledge that where a particular Servicing Criteria has multiple components,
each party's assessment of compliance and related attestation of compliance will
relate only to those components that are applicable to such party. Promptly
after receipt of each such report on assessment of compliance, the Depositor
shall review each such report and, if applicable, consult with the Trustee as to
the nature of any material instance of noncompliance with the Servicing Criteria
applicable to it (and each Subservicer or Servicing Function Participant engaged
or utilized by the Trustee), as the case may be. None of the Trustee, any
Subservicer or any Servicing Function Participant shall be required to cause the
delivery of any such assessments until March 15th in any given year so long as
it has received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar year.
In the event the Trustee, any Subservicer or any Servicing Function
Participant engaged by it is terminated, assigns its rights and obligations
under, or resigns pursuant to, the terms of this Agreement, or any other
applicable agreement, as the case may be, such party shall provide with respect
to the year of termination a report on assessment of compliance pursuant to this
Section 6.14, or to such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
(b) Not later than March 5th of each calendar year commencing in
2007, the Trustee shall cause each Subservicer or Servicing Function Participant
utilized by the Trustee (or by any Subservicer engaged by the Trustee), to
cause, each at its own expense, a registered public accounting firm (which may
also render other services to such party) that is a member of the American
Institute of Certified Public Accountants to furnish a report to the Depositor
that attests to and reports on such Person's assessment of compliance with the
Servicing Criteria applicable to it, with a copy to the Rating Agencies, to the
effect that (i) it has obtained a representation regarding certain matters from
the management of such Person, which includes an assertion that such Person has
complied with the Servicing Criteria applicable to it pursuant to Section
6.14(a) and (ii) on the basis of an examination conducted by such firm in
accordance with standards for attestation engagements issued or adopted by the
PCAOB, that attests to and reports on such Person's assessment of compliance
with the Servicing Criteria applicable to it. In the event that an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Each such related
accountant's attestation report shall be made in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act. Promptly after receipt of each such accountants' attestation
report, the Depositor shall review the report and, if applicable, consult with
the Trustee as to the nature of any defaults by the Trustee (and each
Subservicer or Servicing Function Participant engaged or utilized by or the
Trustee), as the case may be, in the fulfillment of any of the Trustee's, the
applicable Subservicer's or the Servicing Function Participant's obligations
hereunder or under any applicable sub-servicing agreement. None of the Trustee
or any Servicing Function Participant shall be required to cause the delivery of
any such attestation required by this paragraph until March 15th in any given
year so long as it has received written confirmation from the Depositor that a
Form 10-K is not required to be filed in respect of the Trust for the preceding
calendar year.
(c) No later than February 1 of each fiscal year, commencing in
2007, the Trustee shall notify the Depositor as to the name of each Subservicer
engaged by it for the prior fiscal year and each Servicing Function Participant
utilized by the Trustee and by each Subservicer engaged by it, but only to the
extent there has been a change in the information in such notification from
notices previously delivered, and each such notice will specify what specific
Servicing Criteria will be addressed in the report on assessment of compliance
prepared by such Subservicer or Servicing Function Participant to the extent of
any change from the prior year's notice, if any. When the Trustee submits its
assessment pursuant to Section 6.14(a), the Trustee will also at such time
include the assessment (and related attestation pursuant to Section 6.14(b)) of
each Servicing Function Participant utilized by it and each Subservicer engaged
by it.
Promptly after receipt of each such assessment of compliance with
servicing criteria and attestation report, the Trustee shall confirm to the
Depositor that each assessment of compliance with servicing criteria submitted
pursuant to Section 6.14 is accompanied by an attestation report meeting the
requirements of this Section 6.14 and shall notify the Depositor of any
exceptions.
In the event the Trustee, any Subservicer or any Servicing Function
Participant engaged by any such party is terminated, assigns its rights and
duties under, or resigns pursuant to the terms of, this Agreement, or any
applicable agreement, as the case may be, such party shall cause a registered
public accounting firm to provide with respect to the year of termination, at
the cost and expense of such party, an attestation report pursuant to this
Section 6.14(c), or such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
(d) Notwithstanding anything to the contrary contained in this
Agreement, the Trustee shall indemnify the Depositor, the Sponsor and any
director, officer, employee or agent of the Depositor or the Sponsor and hold
them harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that any of them may sustain in any way
related to any failure by the Trustee or any Subcontractor, Subservicer or
Servicing Function Participant utilized by the Trustee to deliver any
information, report, certification or accountants' letter when and as required
pursuant to this Agreement, including without limitation any failure by the
Trustee to identify any Subcontractor, Subservicer or Servicing Function
Participant "participating in the servicing function" within the meaning of Item
1122 of Regulation AB.
Section 6.15 Annual Statement as to Compliance. The Trustee shall
deliver, and shall cause each Subservicer engaged by the Trustee to deliver or
cause to be delivered (or otherwise make available) to the Depositor on or
before March 15 of each year, commencing in March 2007, an Officer's Certificate
stating, that (A) a review of the activities of the Trustee or Subservicer, as
applicable, during the preceding calendar year or portion thereof and of the
Trustee's performance under this Agreement or any Subservicer's performance
under an applicable sub-servicing agreement, as the case may be, has been made
under such officer's supervision and (B) to the best of such officer's
knowledge, based on such review, the Trustee or Subservicer, as applicable, has
fulfilled all its obligations under this Agreement or the applicable
sub-servicing agreement, as the case may be, in all material respects throughout
such year or 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 thereof.
In the event the Trustee or any Subservicer engaged by the Trustee
is terminated or resigns pursuant to the terms of this Agreement or any
applicable agreement in the case of a Subservicer, as the case may be, such
party shall provide an Officer's Certificate pursuant to this Section 6.15
notwithstanding any such termination, assignment or resignation for the portion
of the year in which it was the Trustee or Subservicer, as applicable.
ARTICLE VII
TERMINATION
Section 7.01 Termination Upon Distribution to Certificateholders.
This Trust Agreement and the respective obligations and responsibilities of the
Depositor and the Trustee created hereby shall terminate upon the final
distribution to Certificateholders of all amounts required to be distributed
pursuant to Article III; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of the
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.
Notice of any termination, specifying the Final Distribution Date
upon which the Certificateholders may surrender their Certificates to the
Trustee for payment of the final distribution and cancellation, shall be given
promptly by the Trustee by letter to Certificateholders mailed not earlier than
the first day and not later than the 25th day of the month of such final
distribution specifying (A) the Distribution Date upon which the final
distribution on the Certificates will be made upon presentation and surrender of
the Certificates at the office of the Trustee therein designated, (B) the amount
of any such final distribution and (C) that the Record Date otherwise applicable
to such Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Certificates at the office of the Trustee
therein specified; provided, however, that the failure to give such notice will
not entitle any Certificateholder to receive any interest in excess of such
Certificateholder's Percentage Interest of the allocation of the Accrued
Certificate Interest for such Final Distribution Date. Upon presentation and
surrender of a Certificate, the Trustee shall cause to be distributed to the
Holder thereof such Holder's final distribution.
On such Final Distribution Date, any assets in the Trust Fund
remaining after payment of all Trust Expenses shall be distributed to
Certificateholders, in accordance with their Percentage Interests, including an
"in kind" distribution of any remaining Deposited Underlying Certificates.
Section 7.02 Failure of Certificateholders to Surrender
Certificates. In the event that any of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the Final
Distribution Date, the Trustee shall give a written notice to such remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within one year after such
notice all the Certificates shall not have been surrendered for cancellation,
the Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain subject to the Trust Fund.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01 Amendment. This Trust Agreement may be amended from
time to time by the Trustee and the Depositor, without the consent of any of the
Certificateholders, (i) to cure any ambiguity or mistake, (ii) to correct or
supplement any provisions herein which may be inconsistent with any other
provision herein or in the Prospectus Supplement, (iii) to change the timing
and/or nature of deposits into the Distribution Account provided that (a) such
change shall not, as evidenced by an Opinion of Counsel (which shall not be an
expense of the Trustee), adversely affect in any material respect the interests
of any Certificateholder and (b) such change shall not adversely affect the
rating of the Certificates, as evidenced by a letter from each Rating Agency to
such effect, or (iv) to add such other provisions with respect to matters or
questions arising under this Trust Agreement that shall not be materially
inconsistent with other provisions of this Trust Agreement provided that (a)
such action shall not, as evidenced by an Opinion of Counsel (which shall not be
an expense of the Trustee), adversely affect in any material respect the
interests of any Certificateholder and (b) such action shall not adversely
affect the rating of the Certificates, as evidenced by a letter from each Rating
Agency to such effect. The Trustee and the Depositor also may at any time and
from time to time amend this Agreement without the consent of the
Certificateholders to modify, eliminate or add to any of its provisions to such
extent as shall be necessary or helpful to (i) maintain the qualification of the
Trust REMIC as a REMIC and the Grantor Trust as a grantor trust under the Code,
(ii) avoid or minimize the risk of the imposition of any tax on the Trust REMIC
or the Grantor Trust pursuant to the Code that would be a claim at any time
prior to the final redemption of the Certificates or (iii) comply with any other
requirements of the Code, provided that the Trustee has been provided an Opinion
of Counsel addressed to the Trustee, which opinion shall be an expense of the
party requesting such opinion but in any case shall not be an expense of the
Trustee or the Trust Fund, to the effect that such action is necessary or
helpful to, as applicable, (i) maintain such qualification, (ii) avoid or
minimize the risk of the imposition of such a tax or (iii) comply with any such
requirements of the Code.
This Trust Agreement may also be amended from time to time by the
Trustee and the Depositor with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66-2/3% of the
Certificates for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Trust Agreement or modifying
in any manner the rights of the Holders of Certificates; provided, however, that
no such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, amounts required to be distributed on any Certificate without the
consent of the Holder of such Certificate, (ii) reduce the percentage of the
Certificates which are required to consent to any such amendment without the
consent of the Holders of all Certificates then outstanding or (iii) permit the
removal of the Trustee without cause without the consent of the Holders of all
Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel addressed to the Trustee, which
opinion shall not be an expense of the Trustee or the Trust Fund, to the effect
that such amendment is permitted hereunder and will not cause the imposition of
any tax under the REMIC Provisions on the REMIC or the Certificateholders or
cause either the Trust REMIC to fail to qualify as a REMIC or the Grantor Trust
as a grantor trust at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Trust
Agreement requiring the consent of Certificateholders, the Trustee shall furnish
a copy of such amendment to each Certificateholder and to each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 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 Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Section 8.02 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this Trust
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding, up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of any of the parties
hereto.
No Certificateholder shall have any right to vote (except as
provided in Section 8.01 or this Section 8.02) or in any manner otherwise
control the operation and management of the Trust Fund (except as provided in
Section 3.01), or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Trust
Agreement pursuant to any provision hereof.
Except in the case of an action, suit or proceeding against the
Trustee with respect to a breach or alleged breach of its duties and
responsibilities hereunder, no Certificateholder shall have any right by virtue
of any provisions of this Trust Agreement to institute any action, suit or
proceeding in equity or at law upon or under or with respect to this Trust
Agreement unless such Holder previously shall have given to the Trustee a
written notice of the basis of such action, suit or proceeding, and unless also
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Certificates shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 60 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; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other Holder of a
Certificate and the Trustee, that no one or more Holders of Certificates shall
have any right in any manner whatever by virtue of any provision of this Trust
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder of Certificates, or to enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Certificates. For the protection and
enforcement of the provisions of this Section, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
Any consent, vote, waiver or like action to be taken by the Trustee
with respect to the Deposited Underlying Certificates will be taken in
accordance with the instructions of a vote of affected Certificateholders. The
Trustee will cast its vote in accordance with the instructions given by those
Certificateholders who hold a majority of the principal amount of the
Certificates from whom instructions are received (whether or not such
Certificateholders hold a majority of the certificates). In the event no such
instructions are received, the Trustee shall not cast any vote.
Section 8.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees or agents
shall be under any liability to the Trust or Certificateholders for any action
taken, or for refraining from the taking of any action, in good faith pursuant
to this Trust Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor or any other such person against any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The Depositor and its directors,
officers, employees or agents may rely in good faith on any document of any kind
prima facie properly executed and/or submitted by any Person respecting any
matter arising hereunder.
Section 8.04 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in the State of New York, and the obligations, rights and
remedies of the parties hereto and the Certificateholders shall be determined in
accordance with such laws.
Section 8.05 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
delivered at (a) in the case of the Depositor, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: BCAP 2006-RR1, or to such other address as may hereafter
be furnished to the Trustee in writing by the Depositor; (b) in the case of the
Trustee, the Corporate Trust Office or to such other address as may hereafter be
furnished to the Depositor in writing by the Trustee; and (c) in the case of the
Rating Agencies, the address specified therefor in the definition corresponding
to the name of such Rating Agency. Any notice required or permitted to be mailed
to a Certificateholder shall be given by first class mail, postage prepaid, at
the address of such Holder as shown in the Certificate Register. Any notice so
mailed to a Holder within the time prescribed in this Trust Agreement shall be
conclusively presumed to have been duly given whether or not the
Certificateholder receives such notice. Any notice mailed to the Trustee shall
be effective only upon receipt.
Section 8.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Trust 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 Trust Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Trust Agreement or of
the Certificates or the rights of the Holders thereof.
Section 8.07 Certificates Nonassessable and Fully Paid. It is the
intention of this Agreement that Certificateholders shall not be personally
liable for obligations of the Trust, that the beneficial ownership interests
represented by the Certificates shall be nonassessable for any losses or
expenses of the Trust or for any reason whatsoever, and that the Certificates
upon execution, authentication and delivery thereof by the Trustee pursuant to
Section 2.02 are and shall be deemed fully paid.
Section 8.08 Execution in Counterparts. This Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement, and shall become a binding agreement when one or more
counterparts have been signed by each party and delivered to the other party.
Section 8.09 Regulation AB Compliance; Intent of the Parties;
Reasonableness. The parties hereto acknowledge that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and, to
the extent practicable from a timing and information systems perspective and to
the extent the Depositor will pay any increased costs of the Trustee caused by
such request, agree to comply with all reasonable requests made by the Depositor
in good faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with the Trust, the
Trustee shall, to the extent practicable from a timing and information systems
perspective and to the extent the Depositor will pay any increased costs of the
Trustee caused by such request, cooperate fully with the Depositor to deliver to
the Depositor (including its assignees or designees), any and all statements,
reports, certifications, records and any other information available to such
party and reasonably necessary in the good faith determination of the Depositor
to permit the Depositor to comply with the provisions of Regulation AB, together
with such disclosures relating to the Trustee reasonably believed by the
Depositor to be necessary in order to effect such compliance.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Depositor and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
BCAP LLC,
as Depositor
By: /s/ Xxx Xxxxxxxx
--------------------------------------
Name: Xxx Xxxxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
XXXXX FARGO BANK, N.A., as Trustee
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A-1
FORM OF CLASS PA, CLASS PB CLASS PC, CLASS PD, CLASS PE, CLASS TA,
CLASS WZ, CLASS CF AND CLASS CS CERTIFICATES.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
Certificate No. :
First Distribution Date : December 26, 2006
Initial Certificate Balance of
this Certificate
("Denomination") :
Initial Certificate Balances of
all Certificates of this Class : [PA] [$147,037,000]
[PB] [$31,060,000]
[PC] [$50,248,000]
[PD] [$34,540,000]
[PE] [$41,783,000]
[TA] [$125,000,000]
[WZ] [$25,333,000]
[CF] [$25,000,000]
[CS] [$25,000,000]
CUSIP : [PA] [05529H AA 1]
[PB] [05529H AB 9]
[PC] [05529H AC 7]
[PD] [05529H AD 5]
[PE] [05529H AE 3]
[TA] [05529H AF 0]
[WZ] [05529H AG 8]
[CF] [05529H AH 6]
[CS] [05529H AJ 2]
ISIN : [PA] [US05529HAA14]
[PB] [US05529HAB96]
[PC] [US05529HAC79]
[PD] [US05529HAD52]
[PE] [US05529HAE36]
[TA] [US05529HAF01]
[WZ] [US05529HAG83]
[CF] [US05529HAH66]
[CS] [US05529HAJ23]
BCAP LLC
BCAP LLC Trust 2006-RR1
Mortgage Pass-Through Certificates, Series 2006-RR1
[Class PA][Class PB] [Class PC][Class PD] [Class PE][Class TA] [Class WZ]
[Class CF] [Class CS]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the deposited underlying certificates
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [__________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Trust Agreement dated as of the Cut-off Date
specified above (the "Agreement") between BCAP LLC, as depositor (the
"Depositor"), and Xxxxx Fargo Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity, but
solely as Trustee
By:____________________________________
Authenticated:
By:____________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Trustee
BCAP LLC
BCAP LLC Trust 2006-RR1
Mortgage Pass-Through Certificates, Series 2006-RR1
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 2006-RR1 Mortgage Pass Through Certificates, of the
series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the office designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Trustee and the other parties to the Agreement with the
consent of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Trustee and the Depositor and any agent of the Trustee or the
Depositor may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
---------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______, or, if mailed by check, to _____________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by____________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT A-2
FORM OF CLASS AR CERTIFICATES
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). TRANSFERS OF THIS CERTIFICATE TO ANY PERSON WHO
IS NOT A PERMITTED TRANSFEREE, AS SET FORTH IN SECTION 4.02(C) OF THE AGREEMENT
IS PROHIBITED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS OF
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING ON
BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH
REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : AR-1
First Distribution Date : December 26, 2006
CUSIP : [05529H AK 9]
ISIN : [US05529HAK95]
BCAP LLC
BCAP LLC Trust 2006-RR1
Mortgage Pass-Through Certificates, Series 2006-RR1
Class AR
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the deposited underlying certificates
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [____________] is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
Class AR Certificates pursuant to a Trust Agreement dated as of the Cut-off Date
specified above (the "Agreement") between BCAP LLC, as depositor (the
"Depositor"), and Xxxxx Fargo Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class AR
Certificate at the office designated by the Trustee for such purposes.
No transfer of a Class AR Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan or arrangement subject to
Section 4975 of the Code or a plan subject to Similar Law, or a person acting on
behalf of any such plan or arrangement or using the assets of any such plan or
arrangement to effect such transfer, which representation letter shall not be an
expense of the Trustee or the Trust Fund. In the event that such representation
is violated, or any attempt is made to transfer to a plan or arrangement subject
to Section 406 of ERISA or a plan subject to Section 4975 of the Code or a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, such attempted
transfer or acquisition shall be void and of no effect.
Each Holder of this Class AR Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class AR Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class AR Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class AR Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class AR Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 4.02(c) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit C-1 to the Agreement, (iii) each
Person holding or acquiring any Ownership Interest in this Class AR Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest this Class AR
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with any Transfer of
this Class AR Certificate, (C) not to cause income with respect to the Class AR
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class AR Certificate or to cause the Transfer of the Ownership Interest in this
Class AR Certificate to any other Person if it has actual knowledge that such
Person is a not a Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class AR Certificate in violation of
the provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authenticated:
By:____________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Trustee
BCAP LLC
BCAP LLC Trust 2006-RR1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 2006-RR1 Mortgage Pass Through Certificates, of the
series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the monthly immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the office designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Trustee and the other parties to the Agreement with the
consent of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Trustee, the Depositor, and any agent of the Trustee or the
Depositor may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
---------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______, or, if mailed by check, to _____________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by____________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT A-3
(Form of Reverse of Certificates)
BCAP LLC
BCAP 2006-RR1
Resecuritization Pass-Through Certificates, Series 2006-RR1
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC, BCAP 2006-RR1 Resecuritization Pass-Through
Certificates, of the series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the first Business Day immediately following the latest Deposited Underlying
Certificate Distribution Date of each month (the "Distribution Date"),
commencing on the first Distribution Date specified on the face hereof, to the
Person in whose name this Certificate is registered at the close of business on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor and the Trustee with the consent of the Certificateholders
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee nor any such agent shall be affected by any notice to
the contrary.
The obligations and responsibilities created by the Agreement shall
terminate upon the final distribution to Certificateholders of all amounts
required to be distributed pursuant to the Agreement. In no event, however, will
the trust created by the Agreement continue beyond the expiration of 21 years
from the death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
---------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______, or, if mailed by check, to _____________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by____________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT B
SCHEDULE OF DEPOSITED UNDERLYING CERTIFICATES
WFMBS Xxxxx Fargo Mortgage Backed Securities
Outstanding Balance
of Deposited
Underlying
Percentage of Certificates as of Related
Issuer Series Class Class (%) Closing Date ($) Certificate Group
--------- --------- ------ -------------- -------------------- ----------------
XXXXX 0000-00 X-0 61.9 15,893,111 Group 1
XXXXX 0000-00 X-0 61.9 413,800,322 Group 1
WFMBS 2006-16 A-18 50.8 25,000,000 Group 2
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT--CLASS AR
BCAP 2006-RR1
BCAP LLC
Pass-Through Certificates
Series 2006-RR1
1. The undersigned is an officer of _______, the proposed Transferee
of an Ownership Interest in a Class AR Certificate (the "Certificate") issued
pursuant to the Trust Agreement dated as of November 30, 2006 (the "Agreement")
among BCAP LLC, as depositor and Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee"). Capitalized terms used, but not defined herein or in Exhibit 1
hereto, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate either (i) for its own account or (ii) as
nominee, trustee or agent for another Person and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit. The
Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are
Disqualified Organizations; (ii) such tax will be imposed on the transferor, or,
if such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is a Disqualified Organization, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is not a Disqualified Organization and, at the time
of Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is a
Disqualified Organization is the record holder of an interest in such entity.
The Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is not a Disqualified Organization and the
pass-through entity does not have actual knowledge that such affidavit is false;
provided, that a pass-through entity which is an "electing large partnership"
under the Code will be subject to tax in all events. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.) The Transferee further understands that it may incur tax liabilities
with respect to the holding of the Certificate in excess of cash flows generated
thereby.
5. The Transferee has reviewed the provisions of Section 4.02(c) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 4.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit C-2 to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to which
the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate. The Transferee historically has paid its debts as they have
become due and intends to do so in the future. The Transferee understands that
the taxable income and tax liability with respect to this Certificate will
exceed distributions with respect to the Certificate in some or all periods and
intends to pay all taxes with respect to the Certificate as they become due.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30) (other than a U.S. partnership any beneficial owner of which,
directly or indirectly (other than through a U.S. corporation), is (or is
permitted to be under the related partnership agreement) a non-U.S. person) or
is not a U.S. Person and has furnished the Transferor and the Trustee with a
duly completed Internal Revenue Service Form W-8ECI or any applicable successor
form.
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
11. The Transferee will not cause income with respect to the
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of the Transferee
or any other United States Person.
12. Check one of the following paragraphs:
[_] The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the
Transferee to acquire such Certificate;
(ii) the present value of the expected future distributions on
such Certificate; and
(iii) the present value of the anticipated tax savings
associated with holding such Certificate as the related REMIC
generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[ ] The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from the Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer,
the Transferee had gross assets for financial reporting purposes
(excluding any obligation of a person related to the Transferee
within the meaning of U.S. Treasury Regulations Section
1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in
excess of $10 million;
(iii) the Transferee will transfer the Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of U.S. Treasury Regulations Sections
1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates,
prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith.
[_] None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law ("Similar Law") materially
similar to the foregoing provisions of ERISA or the Code, and the Transferee is
not acting on behalf of such a plan.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this ____________ day of __________________, 200_.
---------------------------------------
PRINT NAME OF TRANSFEREE
By:
--------------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
---------------------------------------
[Assistant] Secretary
EXHIBIT 1
to EXHIBIT C-1
Certain Definitions
"Disqualified Organization": A Person specified in clauses (i)-(iv)
of the definition of "Permitted Transferee."
"Ownership Interest": As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
"Permitted Transferee": Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a
citizen or resident of the United States, a corporation, partnership (except as
provided in applicable Treasury Regulations), or other entity created or
organized in or under the laws of the United States or any State thereof or the
District of Columbia, an estate whose income is subject to United States federal
income tax regardless of its source or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more Persons described in this clause (v) have the authority to
control all substantial decisions of the Trust (or, to the extent provided in
applicable Treasury Regulations, certain trusts in existence on August 20, 1996
which are eligible to elect to be treated as United States persons) unless such
Person has furnished the transferor and the Trustee with a duly completed
Internal Revenue Service Form W-8ECI or any applicable successor form, (vi) any
Person with respect to whom income on any Residual Certificate is attributable
to a foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of such Person or any other Person, (vii) a U.S.
partnership if any of its beneficial owners, directly or indirectly (other than
through a U.S. corporation), are (or are permitted to be under the related
partnership agreement) not persons described in clause (v) and (viii) any other
Person so designated by the Depositor based upon an Opinion of Counsel that the
Transfer of an Ownership Interest in a Residual Certificate to such Person may
cause the Trust REMIC to fail to qualify as a REMIC at any time that the
Certificates are outstanding. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and, with
the exception of Xxxxxxx Mac, a majority of its board of directors is not
selected by such government unit.
"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.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Residual Certificate.
EXHIBIT 2
to EXHIBIT C-1
Section 4.02(c) of the Agreement
Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee shall
not register the Transfer of any Residual Certificate unless, in addition to the
certificates required to be delivered to the Trustee under subparagraph (b)
above, the Trustee shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee (other than the
Depositor of an affiliate thereof) in the form attached hereto as Exhibit C-1.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from any
other Person to whom such Person attempts to Transfer its Ownership Interest in
a Residual Certificate, (B) to obtain a Transfer Affidavit from any Person for
whom such Person is acting as nominee, trustee or agent in connection with any
Transfer of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section 4.02(c)
shall be absolutely null and void and shall vest no rights in the purported
transferee. If any purported transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 4.02(c), then the
last preceding Permitted Transferee shall be restored to all rights as Holder
thereof retroactive to the date of registration of Transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not permitted
by Section 4.02(b) and this Section 4.02(c) or for making any payments due on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the Transfer
was registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at and after either
such time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder who is
not a Permitted Transferee described in clauses (i) through (iv) of the
definition thereof.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 4.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel addressed to
the Trustee, which Opinion of Counsel shall not be an expense of the Trust Fund
or the Trustee, to the effect that the elimination of such restrictions will not
cause the Trust REMIC to fail to qualify as a REMIC at any time that the
Certificates are outstanding or result in the imposition of any tax on the Trust
Fund, a Certificateholder or another Person. Each Person holding or acquiring
any Ownership Interest in a Residual Certificate hereby consents to any
amendment of this Agreement which, based on an Opinion of Counsel addressed to
the Trustee, is reasonably necessary (a) to ensure that the record ownership of,
or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Residual Certificate which is
held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE
---------------------
Date
BCAP LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: BCAP 2006-RR1
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: BCAP 2006-RR1
Re: BCAP LLC 2006-RR1, Resecuritization Pass-Through Certificates, Series
2006-RR1, Class [___]
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, in a manner that would be
deemed, or taken any other action which would result in, a violation of Section
5 of the Securities Act of 1933, as amended and (b) to the extent we are
disposing of a Class AR Certificate, (i) we have no knowledge the Transferee is
not a Permitted Transferee, (ii) after conducting a reasonable investigation of
the financial condition of the Transferee, we have no reason to believe that the
Transferee will not pay taxes with respect to the Class AR Certificate when due,
and (iii) we have no reason to believe that the statements made in paragraphs 5,
7, 9 and 11 of the Transferee's Transfer Affidavit are false.
Very truly yours,
--------------------------------------
Print Name of Transferor
By:
-----------------------------------
Authorized Officer
EXHIBIT D
AGGREGATE TARGETED BALANCE AMORTIZATION SCHEDULE
Date Balance ($)
------------------- ------------------
November 2006 304,668,000.00
December 2006 302,139,177.51
January 2007 299,552,966.95
February 2007 296,910,505.24
March 2007 294,277,647.52
April 2007 291,654,345.87
May 2007 289,040,554.80
June 2007 286,436,231.20
July 2007 283,841,334.36
August 2007 281,255,825.89
September 2007 278,679,669.76
October 2007 276,112,832.25
November 2007 273,555,281.93
December 2007 271,006,989.62
January 2008 268,467,928.42
February 2008 265,938,073.60
March 2008 263,417,402.63
April 2008 260,905,895.13
May 2008 258,403,532.83
June 2008 255,910,299.57
July 2008 253,428,168.75
August 2008 250,959,136.28
September 2008 248,503,135.39
October 2008 246,060,099.69
November 2008 243,629,963.13
December 2008 241,212,660.00
January 2009 238,808,124.95
February 2009 236,416,292.98
March 2009 234,037,112.92
April 2009 231,670,520.24
May 2009 229,316,450.80
June 2009 226,974,840.73
July 2009 224,645,626.54
August 2009 222,328,745.05
September 2009 220,024,133.41
October 2009 217,731,729.10
November 2009 215,451,469.91
December 2009 213,183,293.99
January 2010 210,927,139.76
February 2010 208,682,946.00
March 2010 206,450,651.79
April 2010 204,230,196.54
May 2010 202,021,519.96
June 2010 199,824,562.08
July 2010 197,639,263.24
August 2010 195,465,564.10
September 2010 193,303,405.62
October 2010 191,152,729.06
November 2010 189,013,476.00
December 2010 186,885,588.32
January 2011 184,769,008.19
February 2011 182,663,678.10
March 2011 180,569,540.83
April 2011 178,486,539.45
May 2011 176,414,617.34
June 2011 174,353,718.16
July 2011 172,303,785.89
August 2011 170,264,764.78
September 2011 168,236,599.36
October 2011 166,219,234.48
November 2011 164,227,614.93
December 2011 162,246,612.36
January 2012 160,276,172.25
February 2012 158,316,240.37
March 2012 156,366,762.76
April 2012 154,427,685.75
May 2012 152,498,955.93
June 2012 150,580,520.18
July 2012 148,672,325.65
August 2012 146,774,319.77
September 2012 144,886,450.22
October 2012 143,008,664.98
November 2012 141,145,717.64
December 2012 139,292,716.41
January 2013 137,449,610.08
February 2013 135,616,347.69
March 2013 133,792,878.57
April 2013 131,979,152.28
May 2013 130,175,118.65
June 2013 128,380,727.78
July 2013 126,595,930.02
August 2013 124,820,675.97
September 2013 123,054,916.49
October 2013 121,298,602.71
November 2013 119,560,849.94
December 2013 117,832,362.34
January 2014 116,113,091.99
February 2014 114,402,991.21
March 2014 112,702,012.57
April 2014 111,010,108.88
May 2014 109,327,233.20
June 2014 107,661,365.36
July 2014 106,020,286.42
August 2014 104,403,641.79
September 2014 102,811,081.80
October 2014 101,242,261.70
November 2014 99,716,631.43
December 2014 98,213,608.88
January 2015 96,732,870.63
February 2015 95,274,097.78
March 2015 93,836,975.92
April 2015 92,421,195.03
May 2015 91,026,449.43
June 2015 89,652,437.74
July 2015 88,298,862.78
August 2015 86,965,431.55
September 2015 85,651,855.18
October 2015 84,357,848.81
November 2015 83,100,051.30
December 2015 81,860,778.19
January 2016 80,639,766.20
February 2016 79,430,618.51
March 2016 78,239,351.94
April 2016 77,065,711.80
May 2016 75,909,446.95
June 2016 74,770,309.74
July 2016 73,648,055.98
August 2016 72,542,444.88
September 2016 71,453,195.92
October 2016 70,380,119.06
November 2016 69,322,983.44
December 2016 68,281,561.41
January 2017 67,255,628.51
February 2017 66,244,963.42
March 2017 65,249,347.89
April 2017 64,268,566.75
May 2017 63,302,407.79
June 2017 62,350,661.81
July 2017 61,413,122.51
August 2017 60,489,586.49
September 2017 59,579,853.17
October 2017 58,683,724.80
November 2017 57,801,006.37
December 2017 56,931,505.63
January 2018 56,075,033.00
February 2018 55,231,401.55
March 2018 54,400,426.99
April 2018 53,581,927.57
May 2018 52,775,724.13
June 2018 51,981,639.99
July 2018 51,199,500.96
August 2018 50,429,135.28
September 2018 49,670,373.61
October 2018 48,923,048.97
November 2018 48,186,996.74
December 2018 47,462,054.59
January 2019 46,748,062.48
February 2019 46,044,862.61
March 2019 45,352,299.39
April 2019 44,670,219.43
May 2019 43,998,471.47
June 2019 43,336,906.41
July 2019 42,685,377.20
August 2019 42,043,738.89
September 2019 41,411,848.56
October 2019 40,789,565.29
November 2019 40,176,750.15
December 2019 39,573,266.15
January 2020 38,978,978.25
February 2020 38,393,753.30
March 2020 37,817,460.01
April 2020 37,249,968.95
May 2020 36,691,152.52
June 2020 36,140,884.91
July 2020 35,599,042.08
August 2020 35,065,501.73
September 2020 34,540,143.31
October 2020 34,022,847.94
November 2020 33,513,498.43
December 2020 33,011,979.25
January 2021 32,513,941.58
February 2021 32,023,601.76
March 2021 31,540,847.49
April 2021 31,065,568.05
May 2021 30,597,654.32
June 2021 30,136,998.68
July 2021 29,683,495.07
August 2021 29,237,038.89
September 2021 28,797,527.07
October 2021 28,364,857.96
November 2021 27,938,931.36
December 2021 27,519,648.49
January 2022 27,106,911.98
February 2022 26,700,625.83
March 2022 26,300,695.39
April 2022 25,907,027.38
May 2022 25,519,529.83
June 2022 25,138,112.05
July 2022 24,762,684.68
August 2022 24,393,159.59
September 2022 24,029,449.94
October 2022 23,671,470.09
November 2022 23,319,135.64
December 2022 22,972,363.36
January 2023 22,631,071.24
February 2023 22,295,178.42
March 2023 21,964,605.18
April 2023 21,639,272.95
May 2023 21,319,104.27
June 2023 21,004,022.78
July 2023 20,693,953.22
August 2023 20,388,821.39
September 2023 20,088,554.16
October 2023 19,793,206.61
November 2023 19,502,577.60
December 2023 19,216,597.13
January 2024 18,935,196.19
February 2024 18,658,306.77
March 2024 18,385,861.81
April 2024 18,117,795.23
May 2024 17,854,041.88
June 2024 17,594,537.54
July 2024 17,339,814.38
August 2024 17,089,201.31
September 2024 16,842,637.07
October 2024 16,600,061.25
November 2024 16,361,414.32
December 2024 16,126,637.59
January 2025 15,895,673.23
February 2025 15,580,924.05
March 2025 15,270,144.71
April 2025 14,964,431.84
May 2025 14,663,709.53
June 2025 14,367,902.97
July 2025 14,076,938.40
August 2025 13,790,743.13
September 2025 13,509,245.51
October 2025 13,232,374.94
November 2025 12,960,061.80
December 2025 12,692,237.49
January 2026 12,428,834.40
February 2026 12,169,785.89
March 2026 11,915,026.28
April 2026 11,664,490.83
May 2026 11,418,115.73
June 2026 11,175,838.10
July 2026 10,937,595.96
August 2026 10,703,328.24
September 2026 10,472,974.71
October 2026 10,246,476.06
November 2026 10,023,773.80
December 2026 9,804,810.31
January 2027 9,589,528.77
February 2027 9,377,873.21
March 2027 9,169,788.47
April 2027 8,965,220.16
May 2027 8,764,114.72
June 2027 8,566,419.31
July 2027 8,372,081.92
August 2027 8,181,051.23
September 2027 7,993,276.72
October 2027 7,808,708.56
November 2027 7,627,297.67
December 2027 7,448,995.66
January 2028 7,273,754.86
February 2028 7,101,528.30
March 2028 6,932,269.66
April 2028 6,765,933.33
May 2028 6,602,474.33
June 2028 6,441,873.43
July 2028 6,284,061.34
August 2028 6,128,995.05
September 2028 5,976,632.17
October 2028 5,826,930.92
November 2028 5,679,850.13
December 2028 5,535,349.26
January 2029 5,393,388.32
February 2029 5,253,927.92
March 2029 5,116,929.27
April 2029 4,982,354.10
May 2029 4,850,164.75
June 2029 4,720,324.06
July 2029 4,592,795.46
August 2029 4,467,542.89
September 2029 4,344,530.83
October 2029 4,223,724.27
November 2029 4,105,088.71
December 2029 3,988,590.18
January 2030 3,874,195.19
February 2030 3,761,870.75
March 2030 3,651,584.34
April 2030 3,543,303.94
May 2030 3,436,997.98
June 2030 3,332,635.38
July 2030 3,230,185.49
August 2030 3,129,618.12
September 2030 3,030,903.55
October 2030 2,934,012.47
November 2030 2,838,916.00
December 2030 2,745,585.71
January 2031 2,653,993.57
February 2031 2,564,111.97
March 2031 2,475,913.73
April 2031 2,389,372.03
May 2031 2,304,460.47
June 2031 2,221,153.06
July 2031 2,139,424.17
August 2031 2,059,248.54
September 2031 1,980,601.32
October 2031 1,903,458.00
November 2031 1,827,794.46
December 2031 1,753,586.90
January 2032 1,680,811.92
February 2032 1,609,446.43
March 2032 1,539,467.70
April 2032 1,470,853.35
May 2032 1,403,581.32
June 2032 1,337,629.88
July 2032 1,272,977.62
August 2032 1,209,603.46
September 2032 1,147,486.63
October 2032 1,086,606.68
November 2032 1,026,943.44
December 2032 968,477.08
January 2033 911,188.04
February 2033 855,057.05
March 2033 800,065.15
April 2033 746,193.66
May 2033 693,424.17
June 2033 641,738.54
July 2033 591,118.94
August 2033 541,547.76
September 2033 493,007.69
October 2033 445,481.67
November 2033 398,952.89
December 2033 353,404.82
January 2034 311,955.36
February 2034 271,383.27
March 2034 231,673.96
April 2034 192,813.05
May 2034 154,786.40
June 2034 117,580.07
July 2034 81,180.33
August 2034 45,573.66
September 2034 42,303.81
October 2034 39,100.90
November 2034 35,963.84
December 2034 32,891.54
January 2035 29,882.94
February 2035 26,936.99
March 2035 24,052.64
April 2035 21,228.89
May 2035 18,464.73
June 2035 15,759.17
July 2035 13,111.23
August 2035 10,519.97
September 2035 7,984.42
October 2035 5,503.67
November 2035 3,076.79
December 2035 702.88
January 2036 -
EXHIBIT E [this Exhibit to be updated]
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Trustee] and [each
Subcontractor] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
-----------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance Trustee
or other triggers and events of default in accordance with the
transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third Trustee
parties, policies and procedures are instituted to monitor the
third party's performance and compliance with such servicing
activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain N/A
a back-up servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the N/A
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 Trustee
custodial bank accounts and related bank clearing accounts no more
than two business days following receipt, or such other number of
days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to Trustee
an investor are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows N/A
or distributions, and any interest or other fees charged for such
advances, are made, reviewed and approved as specified in the
transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve Trustee
accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the transaction
agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured Trustee
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.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized Trustee
access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all Trustee
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.
Investor Remittances and Reporting
1122(d)(3)(i) Reports to investors, including those to be filed with the Trustee
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 mortgage loans serviced by the
Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance Trustee
with timeframes, distribution priority and other terms set forth in
the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business Trustee
days to the Servicer's investor records, or such other number of
days specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with Trustee
cancelled checks, or other form of payment, or custodial bank
statements.
Pool Asset Administration
1122(d)(4)(i) Collateral or security on pool assets is maintained as Trustee
required by the transaction agreements or related mortgage
loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by N/A
the transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are Trustee
made, reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in N/A
accordance with the related mortgage loan documents are posted to
the Servicer's obligor records maintained no more than two business
days after receipt, or such other number of days specified in the
transaction agreements, and allocated to principal, interest or
other items (e.g., escrow) in accordance with the related mortgage
loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the N/A
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 N/A
mortgage loans (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance with
the transaction agreements and related pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, N/A
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 N/A
period a mortgage loan is delinquent in accordance with the
transaction agreements. Such records are maintained on at least a
monthly basis, or such other period specified in the transaction
agreements, and describe the entity's activities in monitoring
delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans N/A
with variable rates are computed based on the related mortgage loan
documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow N/A
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least an annual basis, or
such other period specified in the transaction agreements; (B)
interest on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related mortgage loans, or such other
number of days specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance N/A
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 N/A
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 N/A
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 N/A
recognized and recorded in accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Trustee, if
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, applicable
is maintained. as set forth in the transaction agreements.
EXHIBIT F [this Exhibit to be updated]
--------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
Item 1: Distribution and Pool
Performance Information
Information included in the Trustee
Distribution Statement
Any information required by 1121 which Depositor
is NOT included on the Distribution
Statement
Item 2: Legal Proceedings
Any legal proceeding pending against the
following entities or their respective
property, that is material to
Certificateholders, including any
proceeding known to be contemplated by
governmental authorities:
Issuing Entity Trustee
Depositor
Depositor Depositor
Trustee Trustee
Sponsor Depositor
1110(b) Originator N/A
Any 1108(a)(2) Servicer (other than the N/A
Trustee)
Any other party contemplated by Depositor
1100(d)(1)
Item 3: Sale of Securities and Use of Depositor
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.
Item 4: Defaults Upon Senior Securities Trustee
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)
Item 5: Submission of Matters to a Trustee
Vote of Security Holders
Information from Item 4 of Part II of
Form 10-Q
Item 6: Significant Obligors of Pool N/A
Assets
Item 1112(b) - Significant Obligor
Financial Information*
*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.
Item 7: Significant Enhancement
Provider Information
Item 1114(b)(2) - Credit Enhancement
Provider Financial Information*
Determining applicable disclosure Depositor
threshold
Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation
by reference
Item 1115(b) - Derivative Counterparty
Financial Information*
Determining current maximum probable Depositor
exposure
Determining current significance Depositor
percentage
Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) 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.
Item 8: Other Information
Disclose any information required to be Any party to the Agreement
reported on Form 8-K during the period responsible for the applicable
covered by the Form 10-D but not Form 8-K Disclosure item
reported
Item 9: Exhibits
Distribution Statement to Trustee
Certificateholders
Exhibits required by Item 601 of Depositor
Regulation S-K, such as material
agreements
EXHIBIT G
FORM 8-K DISCLOSURE INFORMATION
Item on Form 8-K Party Responsible
Item 1.01- Entry into a Material The party to this Agreement entering
Definitive Agreement into such 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
Item 1.02- Termination of a Material The party to this Agreement
Definitive Agreement requesting termination of a material
definitive agreement
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.
Item 1.03- Bankruptcy or Receivership Depositor
Disclosure is required regarding the
bankruptcy or receivership, with respect
to any of the following:
Sponsor (Seller) Depositor
Depositor Depositor
Trustee Trustee
Significant Obligor Depositor/Trustee
Credit Enhancer (10% or more) Depositor
Derivative Counterparty Depositor
Item 2.04- Triggering Events that Depositor
Accelerate or Increase a Direct Trustee
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 statements to
the certificateholders.
Item 3.03- Material Modification to Trustee/Depositor
Rights of Security Holders
Disclosure is required of any material
modification to documents defining the
rights of Certificateholders, including
the Pooling and Servicing Agreement.
Item 5.03- Amendments of Articles of Depositor
Incorporation or Bylaws; Change of
Fiscal Year
Disclosure is required of any
amendment "to the governing documents
of the issuing entity."
Item 6.01- ABS Informational and Depositor
Computational Material
Item 6.02- Change of Servicer or Depositor /Trustee
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 or trustee.
Reg AB disclosure about any new Depositor
servicer or master servicer is also
required.
Reg AB disclosure about any new Trustee
Trustee is also required.
Item 6.03- Change in Credit Depositor/Trustee
Enhancement or External 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.
Reg AB disclosure about any new Depositor
enhancement provider is also required.
Item 6.04- Failure to Make a Required Trustee
Distribution
Item 6.05- Securities Act Updating Depositor
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.
If there are any new servicers or Depositor
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.
Item 7.01- Reg FD Disclosure Depositor
Item 8.01- Other Events Depositor
Any event, with respect to which
information is not otherwise called
for in Form 8-K, that the registrant
deems of importance to
certificateholders.
Item 9.01- Financial Statements and Party responsible for
Exhibits reporting/disclosing the financial
statement or exhibit
EXHIBIT H
ADDITIONAL DISCLOSURE NOTIFICATION
BCAP LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: BCAP 2006-RR1
Xxxxx Fargo Bank, N.A., as Trustee
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
E-mail: x&x.xxx.xxxxxxxxxxxx@Xxxxxxxxxx.xxx
Attn: Corporate Trust Services - BCAP 2006-RR1--SEC REPORT PROCESSING
Re: RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [_] of the Trust Agreement, dated as of
[____] [__], 2006, among [____], as [____], [____], as [____], [____], as [____]
and [____], as [____]. The undersigned, as [____], hereby notifies you that
certain events have come to our attention that [will] [may] need to be disclosed
on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to
[____], phone number: [____]; email address: [____].
[NAME OF PARTY],
as [role]
By:
--------------------------------------
Name:
Title:
EXHIBIT I
FORM OF CERTIFICATION TO BE
PROVIDED BY THE TRUSTEE TO DEPOSITOR
Re: BCAP 2006-RR1 (the "Trust"), Resecuritization Pass-Through
Certificates, Series 2006-RR1, issued pursuant to the Pooling and
Servicing Agreement, dated as of November 30, 2006 (the "Trust
Agreement"), by and among BCAP LLC, as depositor (the "Depositor")
and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee")
The 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 the period covered by the Annual Report (collectively with
the Annual Report, the "Reports"), of the Trust;
2. Based on my knowledge, 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;
3. Based on my knowledge, the distribution information required to
be provided by the 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
Trustee under the Trust Agreement, and based on my knowledge and the compliance
review conducted in preparing the compliance statement of the Trustee required
in the Annual Report under Item 1123 of Regulation AB, and except as disclosed
in the Reports, the 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 Trustee for asset-backed securities of the Trustee and each
Subcontractor utilized by the Trustee and its related attestation report on
assessment of compliance with servicing criteria 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.
Date:
By:
-------------------------------------
Name:
Title:
EXHIBIT J
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
--------------------------------------------------------------------------------
Item 9B: Other Information Any party to this Agreement
responsible for disclosure items on
Disclose any information required to Form 8-K
be reported on Form 8-K during the
fourth quarter covered by the Form
10-K but not reported
Item 15: Exhibits, Financial Statement Trustee
Schedules Depositor
Reg AB Item 1112(b): Significant
Obligors of Pool Assets
Significant Obligor Financial Information* N/A
*This information need only be reported
on the Form 10-K if updated information
is required pursuant to Item 1112(b).
Reg AB Item 1114(b)(2): Credit
Enhancement Provider Financial
Information
Determining applicable disclosure Depositor
threshold
Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation by
reference
* This information need only be
reported on the Form 10-K if updated
information is required pursuant to
the Item.
Reg AB Item 1115(b): Derivative
Counterparty Financial Information
Determining current maximum probable Depositor
exposure
Determining current significance Depositor
percentage
Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation by
reference
* This information need only be
reported on the Form 10-K if updated
information is required pursuant to
the Item.
Reg AB Item 1117: Legal Proceedings
Any legal proceeding pending against the
following entities or their respective
property, that is material to
Certificateholders, including any
proceeding known to be contemplated by
governmental authorities:
Issuing Entity Trustee and Depositor
Depositor Depositor
Custodian Custodian
Trustee Trustee
Sponsor Depositor
1110(b) Originator Depositor
Any 1108(a)(2) Servicer (other than
the Trustee)
Any other party contemplated by Depositor
1100(d)(1)
Reg AB Item 1119: Affiliations and
Relationships
Whether (a) the Sponsor (Seller), Depositor as to (a)
Depositor or Issuing Entity is an
affiliate of the following parties,
and (b) to the extent known and
material, any of the following parties
are affiliated with one another:
Trustee Trustee
Any other 1108(a)(3) servicer N/A
Any 1110 Originator Depositor
Any 1112(b) Significant Obligor Depositor
Any 1114 Credit Enhancement Provider Depositor
Any 1115 Derivative Counterparty Depositor
Provider
Any other 1101(d)(1) material party Depositor
Whether there are any "outside the Depositor as to (a)
ordinary course business arrangements"
other than would be obtained in an
arm's length transaction between (a)
the Sponsor (Seller), Depositor or
Issuing Entity on the one hand, and
(b) any of the following parties (or
their affiliates) on the other hand,
that exist currently or within the
past two years and that are material
to a Certificateholder's understanding
of the Certificates:
Trustee Trustee
Any other 1108(a)(3) servicer N/A
Any 1110 Originator Depositor
Any 1112(b) Significant Obligor Depositor
Any 1114 Credit Enhancement Provider Depositor
Any 1115 Derivative Counterparty Depositor
Provider
Any other 1101(d)(1) material party Depositor
Whether there are any specific Depositor as to (a)
relationships involving the
transaction or the pool assets between
(a) the Sponsor (Seller), Depositor or
Issuing Entity on the one hand, and
(b) any of the following parties (or
their affiliates) on the other hand,
that exist currently or within the
past two years and that are material:
Trustee Trustee
Any other 1108(a)(3) servicer N/A
Any 1110 Originator Depositor
Any 1112(b) Significant Obligor Depositor
Any 1114 Credit Enhancement Provider Depositor
Any 1115 Derivative Counterparty Depositor
Provider
Any other 1101(d)(1) material party Depositor
EXHIBIT K
FORM OF CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: BCAP 2006-RR1 (the "Trust"), Resecuritization Pass-Through
Certificates, Series 2006-RR1, issued pursuant to the Trust
Agreement, dated as of November 30, 2006 (the "Trust Agreement"), by
and among BCAP LLC, as depositor (the "Depositor") and Xxxxx Fargo
Bank N.A., as trustee (the "Trustee").
I, [identify the certifying individual], certify 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 am responsible for reviewing the activities performed by the
Trustee under the Trust Agreement and I have reviewed the servicer compliance
statement of the Trustee and the compliance statements of each Subservicer, if
any, engaged by the Trustee provided to the Depositor for the Trust's fiscal
year [___] in accordance with Item 1123 of Regulation AB (each a "Compliance
Statement"), the report on assessment of the Trustee's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria") and reports on assessment of compliance with servicing criteria for
asset-backed securities of the Trustee and of each Subservicer or Subcontractor,
if any, engaged or utilized by the Trustee provided to the Depositor for the
Trust's fiscal year [___] in accordance with Rules 13a-18 and 15d-18 under
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122
of Regulation AB (each a "Servicing Assessment"), the registered public
accounting firm's attestation report provided in accordance with Rules 13a-18
and 15d-18 under the Exchange Act and Section 1122(b) of Regulation AB related
to each Servicing Assessment (each a "Attestation Report"), and all servicing
reports, officer's certificates and other information relating to the servicing
of the Deposited Underlying Certificates by the Trustee during 200[_] that were
delivered or caused to be delivered by the Trustee pursuant to the Agreement
(collectively, the "Servicing Information");
2. Based on my knowledge, the Servicing Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Servicing Information;
3. Based on my knowledge, the servicing information required to be
provided to the Depositor by the Trustee pursuant to the Trust Agreement has
been provided to the Depositor;
4. Based on my knowledge and the compliance review conducted in
preparing the Compliance Statement of the Trustee and, if applicable, reviewing
each Compliance Statement of each Subservicer, if any, engaged by the Trustee,
and except as disclosed in such Compliance Statement[(s)], the Trustee
[(directly and through its Subservicers, if any)] has fulfilled its obligations
under the Trust Agreement in all material respects.
5. Each Servicing Assessment of the Trustee and of each Subservicer
or Subcontractor, if any, engaged or utilized by the Trustee and its related
Attestation Report 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 provided to the Depositor. Any material instances of non-compliance are
described in any such Servicing Assessment or Attestation Report.
Date:
By:
Name:
Title:
