AMENDED AND RESTATED TRUST AGREEMENT among FINANCIAL ASSET SECURITIES CORP. as Depositor, WILMINGTON TRUST COMPANY, as Owner Trustee and WELLS FARGO BANK, N.A., as Trust Administrator Dated May 2, 2006 Aames Mortgage Investment Trust 2006-1 Mortgage...
EXHIBIT
3.1
AMENDED
AND RESTATED TRUST AGREEMENT
among
FINANCIAL
ASSET SECURITIES CORP.
as
Depositor,
WILMINGTON
TRUST COMPANY,
as
Owner
Trustee
and
XXXXX
FARGO BANK, N.A.,
as
Trust
Administrator
Dated
May
2, 2006
Mortgage
Backed Notes
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
Section
1.02. Other Definitional Provisions.
ARTICLE
II ORGANIZATION
Section
2.01. Name.
Section
2.02. Office.
Section
2.03. Purpose and Powers.
Section
2.04. Appointment of the Owner Trustee.
Section
2.05. Initial Capital Contribution; Declaration of Trust; Fiscal
Year.
Section
2.06. Issuance of Initial Certificates.
Section
2.07. [Reserved]
Section
2.08. Situs of Trust.
Section
2.09. Title to Trust Property.
Section
2.10. Representations and Warranties of the Depositor.
Section
2.11. Tax Treatment.
Section
2.12. Investment Company.
ARTICLE
III THE CERTIFICATES AND TRANSFERS OF INTERESTS
Section
3.01. The Certificates.
Section
3.02. Execution, Authentication and Delivery of the Certificates.
Section
3.03. Registration of and Limitations on Transfers and Exchanges of the
Certificates.
Section
3.04. Lost, Stolen, Mutilated or Destroyed Certificate.
Section
3.05. Persons Deemed Certificateholders.
Section
3.06. Access to List of Certificateholders’ Names and Addresses.
Section
3.07. [Reserved]
Section
3.08. Maintenance of Office or Agency.
Section
3.09. Certificate Paying Agent.
Section
3.10. Initial Beneficiary.
ARTICLE
IV APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section
4.01. Collection Account.
Section
4.02. Application of Trust Funds.
Section
4.03. Method of Payment.
Section
4.04. [Reserved]
Section
4.05. Segregation of Moneys; No Interest.
ARTICLE
V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE; ACTION BY
CERTIFICATEHOLDERS
Section
5.01. General Authority.
Section
5.02. General Duties.
Section
5.03. Action Upon Instruction.
Section
5.04. No Duties Except as Specified under Specified Documents or in
Instructions.
Section
5.05. Restrictions.
Section
5.06. Prior Notice to the Certificateholders with Respect to Certain
Matters.
Section
5.07. Action by the Holder with Respect to Bankruptcy.
Section
5.08. Restrictions on the Ownership Certificate Holder’s Power.
ARTICLE
VI CONCERNING THE OWNER TRUSTEE
Section
6.01. Acceptance of Trusts and Duties.
Section
6.02. Furnishing of Documents.
Section
6.03. Books and Records.
Section
6.04. Representations and Warranties.
Section
6.05. Reliance; Advice of Counsel.
Section
6.06. Not Acting in Individual Capacity.
Section
6.07. Owner Trustee Not Liable for Certificates or Collateral.
Section
6.08. Owner Trustee May Own Notes.
Section
6.09. Licenses.
Section
6.10. Doing Business in Other Jurisdictions.
Section
6.11. Xxxxxxxx-Xxxxx Act Certification.
ARTICLE
VII INDEMNIFICATION AND COMPENSATION
Section
7.01. Trust Expenses.
Section
7.02. Indemnification.
Section
7.03. Compensation.
Section
7.04. Lien on Trust Estate.
ARTICLE
VIII TERMINATION OF AGREEMENT
Section
8.01. Termination of Agreement.
ARTICLE
IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section
9.01. Eligibility Requirements for Owner Trustee.
Section
9.02. Resignation or Removal of Owner Trustee.
Section
9.03. Successor Owner Trustee.
Section
9.04. Merger or Consolidation of Owner Trustee.
Section
9.05. Appointment of Co-Trustee or Separate Trustee.
ARTICLE
X
MISCELLANEOUS
Section
10.01. Supplements and Amendments.
Section
10.02. No Legal Title to Trust Estate in Certificateholders.
Section
10.03. Pledge of Collateral by Owner Trustee is Binding.
Section
10.04. Limitations on Rights of Others.
Section
10.05. Notices.
Section
10.06. Severability.
Section
10.07. Separate Counterparts.
Section
10.08. Successors and Assigns.
Section
10.09. Headings.
Section
10.10. Governing Law.
Section
10.11. No Petition.
Section
10.12. No Recourse.
Section
10.13. Customer Identification.
ARTICLE
XI OFFICERS
Section
11.01. Appointment of Officers.
Section
11.02. Officers to Provide Information to the Owner Trustee.
| Exhibit A | Forms of Certificates |
| Exhibit B | [Reserved] |
| Exhibit C | Form of Certificate of Trust |
| Exhibit D-1 | Form of Rule 144A Investment Letter |
| Exhibit D-2 | Form of Non-Rule 144A Investment Letter |
|
Exhibit
E
|
Form
of Certificate of Beneficial Owner
|
|
Exhibit
F
|
Form
of Representation and Warranty Regarding Transferee’s Status as a REIT,
Qualified REIT Subsidiary or Disregarded
Entity
|
This
TRUST AGREEMENT, dated May 2, 2006, is by and among FINANCIAL ASSET SECURITIES
CORP. a Delaware corporation (the “Depositor”), WILMINGTON
TRUST COMPANY,
a
Delaware banking corporation, as Owner Trustee (the “Owner Trustee”), and XXXXX
FARGO BANK, N.A., a national banking association, as Trust Administrator (the
“Trust Administrator”).
WHEREAS,
pursuant to the Transfer and Servicing Agreement, Depositor intends to sell,
transfer and assign to a Delaware statutory trust named herein certain Mortgage
Loans and related assets (collectively, the “Collateral”), which statutory trust
would then pledge such Collateral under an indenture in order to secure the
issuance of its Mortgage Backed Notes, Series 2006-1, the net proceeds of which
would be applied toward the purchase of the Collateral;
WHEREAS,
the Depositor and the Owner Trustee entered into a Trust Agreement dated May
1,
2006 (the “Original Trust Agreement”), and filed with the Secretary of State of
the State of Delaware a Certificate of Trust on May 1, 2006 creating
Aames
Mortgage Investment Trust 2006-1
(the
“Trust”); and
WHEREAS,
the Depositor, the Owner Trustee and the Trust Administrator desire to enter
into this Amended and Restated Agreement in order to amend and restate in its
entirety the Original Trust Agreement and to provide for the operation of the
Trust upon the terms and conditions more particularly set forth
herein.
NOW
THEREFORE, in consideration of the premises and mutual agreements herein
contained, the parties hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
For
all
purposes of this Agreement, the following terms shall have the meanings set
forth below.
Actual
Knowledge:
With
respect to (i) the Owner Trustee, any officer within the Corporate Trust Office
of the Owner Trustee responsible for administering the Trust hereunder, or
under
the Operative Agreements, who has actual knowledge of an action taken or an
action not taken with regard to the Trust. Actions taken or actions not taken
of
which the Owner Trustee should have had knowledge, or has constructive
knowledge, do not meet the definition of Actual Knowledge hereunder. With
respect to the Trust Administrator, any Responsible Officer of the Trust
Administrator who has actual knowledge of an action taken or an action not
taken
with regard to the Trust. Actions taken or actions not taken of which the Trust
Administrator should have had knowledge, or has constructive knowledge, do
not
meet the definition of Actual Knowledge hereunder.
Agreement
or Trust Agreement:
This
Amended and Restated Trust Agreement and any amendments or modifications
hereof.
Authorized
Officer:
With
respect to the Trust, any officer of the Owner Trustee who is authorized to
act
for the Owner Trustee in matters relating to the Trust and who is identified
on
the list of Authorized Officers delivered by the Owner Trustee to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter) and, so long as the Transfer and Servicing Agreement
is
in effect, any Vice President, Assistant Vice President, Trust Officer, or
more
senior officer of the Trust Administrator who is authorized to act for the
Trust
Administrator in matters relating to the Trust and to be acted upon by the
Trust
Administrator pursuant to the Transfer and Servicing Agreement and who is
identified on the list of Authorized Officers delivered by the Trust
Administrator to the Indenture Trustee on the Closing Date (as such list may
be
modified or supplemented from time to time thereafter).
Bank:
Wilmington Trust Company in its individual capacity and not as Owner Trustee
under this Agreement.
Certificate:
Any
Ownership Certificate issued pursuant to this Agreement.
Certificate
of Trust:
The
Certificate of Trust to be filed by the Owner Trustee for the Trust pursuant
to
Section 3810(a) of the Delaware Trust Statute in the form of Exhibit C
hereto.
Certificate
Paying Agent:
Initially, the Trust Administrator, in its capacity as Certificate Paying Agent,
or any successor to the Trust Administrator in such capacity.
Certificate
Register:
The
register maintained by the Certificate Registrar in which the Certificate
Registrar shall provide for the registration of the Certificates and of
transfers and exchanges of such Certificates.
Certificate
Registrar:
Initially, the Trust Administrator, in its capacity as Certificate Registrar,
or
any successor to the Trust Administrator in such capacity.
Certificateholder
or Holder:
The
Person in whose name a Certificate is registered in the Certificate
Register.
Code:
The
Internal Revenue Code of 1986, as amended.
Collateral:
As
defined in the Indenture.
Corporate
Trust Office:
With
respect to (i) the Owner Trustee, the corporate trust administration office
of
the Owner Trustee located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, or at such other address as the Owner Trustee
may designate by notice to the Trust Administrator, or the principal office
of
any successor Owner Trustee (the address (which shall be in the State of
Delaware) of which the successor owner trustee will notify the
Certificateholders); (ii) the Trust Administrator, the principal corporate
trust
office of the Trust Administrator at which, at any particular time, its
corporate trust business shall be administered, which office at the date hereof
for purposes of transfers and exchanges and for presentment and surrender of
the
Certificates and for payment thereof is located at Xxxxx Fargo Bank, N.A.,
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate
Trust Group (Aames 2006-1), and for all other purposes is located at Xxxxx
Xxxxx
Xxxx, X.X., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Group (Aames 2006-1) (or for overnight deliveries, at 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Group (Aames 2006-1));
and
(iii) the Certificate Registrar, the principal office of the Certificate
Registrar at which at any particular time its corporate trust business shall
be
administered, which office at the date of execution of this Agreement is located
at the Corporate Trust Office of the Trust Administrator, or at such other
address as the Certificate Registrar may designate from time to time by notice
to the Securityholders and the Trust, or the principal corporate trust office
of
any successor Certificate Registrar at the address designated by such successor
Certificate Registrar by notice to the Securityholders and the
Trust.
Delaware
Trust Statute:
Chapter
38 of Title 12 of the Delaware Code, 12 Del.C. Section 3801 et
seq.,
as the
same may be amended from time to time.
Depositor:
Financial Asset Securities Corp. a Delaware corporation.
Disregarded
Entity:
An
entity that is both (a) solely owned by a REIT or Qualified REIT Subsidiary
and
(b) disregarded as an entity separate from its owner within the meaning of
Section 301.7701-2(c)(2) of the Treasury Regulations.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
Expenses:
The
meaning specified in Section 7.02.
Indenture:
The
indenture dated as of April 1, 2006, among the Issuer, the Trust Administrator
and the Indenture Trustee, as such may be amended or supplemented from time
to
time.
Indenture
Trustee:
Deutsche Bank National Trust Company, not in its individual capacity but solely
as Indenture Trustee, or any successor in interest.
Initial
Holder:
Aames
Investment Acceptance Corporation, or any successor in interest, in the case
of
the Ownership Certificate.
Master
Servicer:
Xxxxx
Fargo Bank, N.A., or any successor in interest.
Net
Proceeds from the Notes:
The
proceeds received by the Trust from time to time from the issuance and sale
of
its Notes, less the costs and expenses incurred in connection with the issuance
and sale of such Notes.
Non-U.S.
Person:
Any
person other than a “United States person” as defined in Section 7701(a)(30) of
the Code.
Note:
Any of
the Class A-1, Class A-2, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class
M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10
or
Class M-11 Notes issued pursuant to the Indenture.
Noteholder:
A
Person in whose name a Note is registered on the Note Register.
Officer:
Those
officers of the Trust referred to in Article XI.
Opinion
of Counsel:
One or
more written opinions of counsel who may, except as otherwise expressly provided
in this Agreement, be employees of or counsel to the Depositor and who shall
be
satisfactory to the Owner Trustee and the Trust Administrator, which opinion
shall be addressed to the Owner Trustee and the Trust Administrator.
Original
Trust Agreement:
As
defined in the recitals hereof.
Ownership
Certificate:
An
equity certificate representing a 100% undivided beneficial interest in the
Trust in substantially the form annexed hereto as part of Exhibit
A.
Owner
Trustee:
Wilmington Trust Company, a Delaware banking corporation, and any successor
in
interest, not in its individual capacity, but solely as owner trustee under
the
Trust Agreement.
Percentage
Interest:
With
respect to any Ownership Certificate, the percentage set forth on the face
thereof.
Proposer:
The
Certificateholder making a written request pursuant to Section
5.07.
Prospective
Holder:
Each
prospective purchaser and any subsequent transferee of the Ownership
Certificate.
Qualified
REIT Subsidiary:
A
direct
or indirect 100% owned subsidiary of a REIT that satisfies the requirements
of
Section 856(i) of the Code.
REIT:
A real
estate investment trust within the meaning of Sections 856 and 857 of the
Code.
Responsible
Officer:
With
respect to (i) the Owner Trustee, any officer within the Corporate Trust Office
of the Owner Trustee with direct responsibility for the administration of the
Trust and also, with respect to a particular matter, any other officer to whom
such matter is referred because of such officer’s knowledge of, and familiarity
with, the particular subject; and (ii) the Trust Administrator, any officer
within the Corporate Trust Office of the Trust Administrator with direct
responsibility for the administration of the Trust and also, with respect to
a
particular matter, any other officer to whom such matter is referred because
of
such officer’s knowledge of, and familiarity with, the particular
subject.
Secretary
of State:
The
Secretary of State of the State of Delaware.
Security:
Any of
the Certificates or Notes.
Securityholder:
Any
Certificateholder or Noteholder.
Seller:
Aames
Investment Corporation, a Maryland corporation.
Transfer
and Servicing Agreement:
The
Transfer and Servicing Agreement dated as of April 1, 2006, by and among the
Issuer, the Depositor, the Trust Administrator, the Master Servicer, Aames
Investment Corporation, as seller, Aames Funding Corporation, as servicer and
the Indenture Trustee, as such may be amended or supplemented from time to
time.
Trust:
The
trust established pursuant to this Agreement which shall carry on its business
operations under the name of “Aames
Mortgage Investment Trust 2006-1.”
Trust
Administrator:
Xxxxx
Fargo Bank, N.A., or any successor in interest.
Section
1.02 Other
Definitional Provisions.
Capitalized
terms used herein and not defined herein shall have the same meanings assigned
to them in the Transfer and Servicing Agreement or in the Indenture, as
applicable.
(a) All
terms
defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As
used
in this Agreement and in any certificate or other document made or delivered
pursuant hereto or thereto, accounting terms not defined in this Agreement
or in
any such certificate or other document, and accounting terms partly defined
in
this Agreement or in any such certificate or other document to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles. To the extent that the definitions of accounting
terms in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Agreement or in any such
certificate or other document shall control.
(c) The
words
“hereof,” “herein,” “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; Section and Exhibit references contained in this
Agreement are references to Sections and Exhibits in or to this Agreement unless
otherwise specified; and the term “including” shall mean “including without
limitation.”
(d) The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as the feminine
and neuter genders of such terms.
(e) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE
II
ORGANIZATION
Section
2.01 Name.
The
trust
established under this Agreement shall be referred to as “Aames
Mortgage Investment Trust 2006-1,”
in
which name the Owner Trustee and the Officers may conduct the activities
contemplated hereby, including the making and executing of contracts and other
instruments on behalf of the Trust and xxx and be sued.
Section
2.02 Office.
The
principal office of the Trust shall be in care of the Owner Trustee, at its
Corporate Trust Office. The Trust shall also have an office in care of the
Trust
Administrator at its Corporate Trust Office.
Section
2.03 Purpose
and Powers.
The
Trust
shall have the power and authority to engage in any of the following
activities:
(a) to
issue
the Notes pursuant to the Indenture and the Certificates pursuant to this
Agreement and to sell, transfer and exchange such Notes and
Certificates;
(b) with
the
proceeds of the sale of the Notes and the Certificates, to pay the
organizational, start-up and transactional expenses of the Trust and to pay
the
balance of the Net Proceeds from the Notes to the Depositor in consideration
of
the transfer to the Trust of the Collateral;
(c) to
assign, grant, transfer, pledge, mortgage and convey the Trust Estate pursuant
to the Indenture and to hold, manage and distribute to the Certificateholders
pursuant to the terms of the Transfer and Servicing Agreement any portion of
the
Collateral released from the lien of, and remitted to the Trust pursuant to,
the
Indenture;
(d) to
enter
into and perform its obligations under the Operative Agreements and the Interest
Rate Swap Agreement to which it is to be a party;
(e) to
engage
in those activities, including entering into agreements, that are necessary,
suitable or convenient to accomplish the foregoing or are incidental thereto
or
connected therewith; and
(f) subject
to compliance with the Operative Agreements, to engage in such other activities
as may be required in connection with conservation of the Trust Estate and
the
making of distributions and payments to the Certificateholders and the
Noteholders.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trust shall
not
engage in any activity other than in connection with the foregoing or other
than
as required or authorized by the terms of this Agreement or the Operative
Agreements.
Section
2.04 Appointment
of the Owner Trustee.
The
Depositor hereby appoints the Bank to act as owner trustee (the “Owner Trustee”)
of the Trust effective as of the date hereof to have all the rights, powers
and
duties set forth herein with respect to accomplishing the purposes of the
Trust.
The
Owner
Trustee is hereby authorized to execute this Agreement, the Indenture, the
Transfer and Servicing Agreement and any other Operative Agreement on behalf
of
the Trust. The Owner Trustee is hereby authorized to take all actions required
or permitted to be taken by it in accordance with the terms of this
Agreement.
Section
2.05 Initial
Capital Contribution; Declaration of Trust.
(a) The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Trust,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the Closing Date, of the foregoing
contribution, which shall constitute the initial corpus of the Trust Estate.
The
Depositor shall pay organizational expenses of the Trust as they may arise
or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
(b) The
Owner
Trustee hereby declares that it will hold the Trust Estate in trust upon and
subject to the conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of the Trust under the Operative
Agreements. It is the intention of the parties hereto that the Trust constitute
a statutory trust under the Delaware Trust Statute and that this Agreement
constitute the governing instrument of such statutory trust. No later than
the
Closing Date, the Owner Trustee shall cause the filing of the Certificate of
Trust with the Secretary of State. Except as otherwise provided in this
Agreement, the rights of the Certificateholders will be those of beneficial
owners of the Trust.
Section
2.06 Issuance
of Initial Certificates.
Upon
the
formation of the Trust by the initial contribution by the Depositor pursuant
to
Section 2.05, the Owner Trustee will issue the Certificates to the Initial
Holders.
Section
2.07 [Reserved].
Section
2.08 Situs
of Trust.
The
Trust
will be located in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the States of Delaware,
New York or the jurisdiction where the Trust Administrator maintains bank
accounts with respect to collections on the Collateral. The only office of
the
Trust will be as described in Section 2.02 hereof. The Trust shall not have
any
employees; provided,
however,
that
nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware. Payments will be received
by
the Trust only in Delaware, New York, the jurisdiction in which the Trust
Administrator maintains the Collection Account or such other jurisdiction
designated by the Depositor, and payments will be made by the Trust only from
the Collection Account or from Delaware, New York or such other jurisdiction
designated by the Depositor.
Section
2.09 Title
to Trust Property.
(a) Subject
to the Indenture, title to all of the Trust Estate shall be vested at all times
in the Trust as a separate legal entity until this Agreement terminates pursuant
to Article VIII hereof; provided,
however,
that if
the laws of any jurisdiction require that title to any part of the Trust Estate
be vested in the trustee of the Trust, then title to that part of the Trust
Estate shall be deemed to be vested in the Owner Trustee or any co-trustee
or
separate trustee, as the case may be, appointed pursuant to Article IX of this
Agreement.
(b) The
Certificateholders shall have beneficial but not legal title to any part of
the
Trust Estate. No transfer by operation of law or otherwise of any interest
of
the Certificateholders shall operate to terminate this Agreement or the trusts
created hereunder or entitle any transferee to an accounting or to the transfer
to it of any part of the Trust Estate.
Section
2.10 Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to the Owner Trustee and the Trust
Administrator as of the Closing Date, as follows:
(a) The
Depositor is duly organized and validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority
to
own its properties and to conduct its business as such properties are currently
owned and such business is presently conducted and had at all relevant times,
and now has, power, authority and the legal right to acquire and own the
Mortgage Loans.
(b) The
Depositor is duly qualified to do business as a foreign corporation in good
standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the conduct of
its
business shall require such qualifications.
(c) The
Depositor has the power and authority to execute and deliver any Operative
Agreement to which it is a party and to carry out its terms; the Depositor
has
full power and authority to sell and assign the Collateral to be sold and
assigned to and deposited with the Trust and the Depositor has duly authorized
such assignment and deposit to the Trust by all necessary corporate action;
and
the execution, delivery and performance of this Agreement or any other Operative
Agreement to which it is a party has been duly authorized by the Depositor
by
all necessary corporate action and, assuming the due authorization, execution
and delivery of each such agreement by the other parties thereto, each such
agreement constitutes a valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforcement thereof may be subject to or limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws relating to or affecting
creditors’ rights generally and by general equitable principles.
(d) The
consummation of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof do not conflict with, result in
any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the certificate of incorporation
or
by-laws of the Depositor, or any indenture, agreement or other instrument to
which the Depositor is a party or by which it is bound; nor result in the
creation or imposition of any lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than pursuant
to the Operative Agreements); nor violate any law or, to the best of the
Depositor’s knowledge, any order, rule or regulation applicable to the Depositor
of any court or of any Federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Depositor
or
its properties.
(e) There
are
no proceedings or investigations, pending or, to the best knowledge of the
Depositor, threatened before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Depositor
or
its properties: (i) asserting the invalidity of this Agreement or any other
Operative Agreement to which the Depositor is a party, (ii) seeking to prevent
the consummation of any of the transactions contemplated by this Agreement
or
any other Operative Agreement to which the Depositor is a party or (iii) seeking
any determination or ruling that might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement or any other Operative Agreement to which
the
Depositor is a party.
(f) The
representations and warranties of the Depositor made pursuant to the Transfer
and Servicing Agreement are true and correct.
(g) This
Agreement is not required to be qualified under the Trust Indenture Act of
1939,
as amended, and the Trust is not required to be registered as an “investment
company” under the Investment Company Act of 1940, as amended.
Section
2.11 Tax
Treatment.
The
Depositor, the Owner Trustee and the Initial Holder intend that the Trust be
treated for federal income tax purposes as a Qualified REIT Subsidiary. The
Trust Administrator will, subject to clause (v) of the fourth paragraph of
Section 3.03 of the Indenture, perform the calculation of accrual of original
issue discount and the amortization of premium on the Securities. The Seller
will prepare and file any income tax returns required for the Trust and make
any
other tax filings required under the Code.
Section
2.12 Investment
Company.
Neither
the Depositor nor any holder of a Certificate shall take any action which would
cause the Trust to become an “investment company” which would be required to
register under the Investment Company Act of 1940, as amended.
ARTICLE
III
THE
CERTIFICATES AND TRANSFERS OF INTERESTS
Section
3.01 The
Certificates.
The
Ownership Certificate shall initially be issued as a single certificate in
definitive, fully registered form and shall initially be registered in the
name
of the applicable Initial Holder. No Ownership Certificate shall be issued
in
authorized denominations of less than a 100% Percentage Interest in such
Certificate. The Certificates shall be executed on behalf of the Trust by manual
or facsimile signature of an Authorized Officer of the Owner Trustee and
authenticated in the manner provided in Section 3.02. Each Certificate bearing
the manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefit of this Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized
prior
to the authentication and delivery of each such Certificate or did not hold
such
offices at the date of authentication and delivery of each such Certificate.
A
Person shall become a Certificateholder and shall be entitled to the rights
and
subject to the obligations of a Certificateholder hereunder upon such Person’s
acceptance of a Certificate duly registered in such Person’s name pursuant to
Section 3.03.
Section
3.02 Execution,
Authentication and Delivery of the Certificates.
Concurrently
with the sale of the Collateral to the Trust pursuant to the Transfer and
Servicing Agreement, the Owner Trustee shall execute the Certificates issued
hereunder on behalf of the Trust and the Certificate Registrar shall
authenticate and deliver the Certificates issued hereunder to the Initial
Holder, without further corporate action by the Depositor. No Certificate shall
entitle its Holder to any benefit under this Agreement or be valid for any
purpose unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth as part of Exhibit A hereto,
executed by the Certificate Registrar or its authenticating agent, by manual
signature; such authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
Section
3.03 Registration
of and Limitations on Transfers and Exchanges of the Certificates.
The
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.08, a Certificate Register in which, subject
to
such reasonable regulations as it may prescribe, the Certificate Registrar
shall
provide for the registration of the Certificates and of transfers and exchanges
of the Certificates as set forth herein, provided,
however,
that no
Ownership Certificate shall be issued in any such transfer and exchange
representing less than a 100% Percentage Interest in such Certificate; and
provided,
further,
that no
Ownership Certificate shall be issued in any such transfer and exchange except
in accordance with the provisions and conditions set forth below in this Section
3.03. The Trust Administrator shall be the initial Certificate Registrar. If
the
Certificate Registrar resigns or is removed, the Owner Trustee, with the consent
of the Depositor, shall appoint a successor Certificate Registrar.
Subject
to satisfaction of the conditions set forth below, upon surrender for
registration of transfer of a Certificate at the office or agency maintained
pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and
deliver (or cause the Trust Administrator as its authenticating agent to
authenticate and deliver), in the name of the designated transferee, a new
Certificate evidencing the Percentage Interest of the Certificate so surrendered
and dated the date of authentication by the Owner Trustee or the Certificate
Registrar.
Every
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory
to
the Owner Trustee and the Certificate Registrar duly executed by each
Certificateholder or such Certificateholder’s attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer or exchange
shall be cancelled and subsequently disposed of by the Certificate Registrar
in
accordance with its customary practice.
No
service charge shall be made for any registration of transfer or exchange of
a
Certificate, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may
be
imposed in connection with any transfer or exchange of a Certificate or any
other expense arising as a result of any registration of transfer or
exchange.
The
preceding provisions of this Section notwithstanding, the Owner Trustee shall
not make and the Certificate Registrar shall not register transfer or exchanges
of a Certificate for a period of 15 days preceding the due date for any payment
with respect to such Certificate.
No
transfer of a Certificate shall be made unless such transfer is exempt from
the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. Except in
the
case of an initial transfer to an Initial Holder, in the event of any such
transfer, the Certificate Registrar or the Depositor shall prior to such
transfer require the transferee to execute (i) an investment letter (in the
form
attached hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee,
the
Trust Administrator, the Certificate Registrar and the Depositor that such
transferee is a “qualified institutional buyer” under Rule 144A under the
Securities Act, or (ii) an investment letter (in the form attached hereto as
Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust
Administrator, the Certificate Registrar and the Depositor that such transferee
is an “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of
the Securities Act), and any expense associated with the preparation and
execution of any such investment letter shall not be an expense of the Trust,
the Owner Trustee, the Trust Administrator, the Certificate Registrar or the
Depositor. A Certificateholder desiring to effect the transfer of a Certificate
shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the
Trust Administrator, the Certificate Registrar and the Depositor against any
and
all liability that may result if the transfer is not so exempt or is not made
in
accordance with such federal and state laws.
Except
in
the case of an initial transfer to an Initial Holder, no transfer of a
Certificate shall be made unless the Certificate Registrar shall have received
a
representation letter (in the form attached hereto as Exhibit D-1 or D-2) from
the proposed transferee of such Certificate to the effect that such proposed
transferee is not an employee benefit plan or other retirement arrangement
subject to Section 406 of ERISA, or Section 4975 of the Code or any
substantially similar applicable law, or a Person acting on behalf of or using
the assets of any such plan, which representation letter shall not be an expense
of the Trust, the Owner Trustee, the Trust Administrator, the Certificate
Registrar or the Depositor.
Prior
to
and as a condition of the registration of any transfer, sale or other
disposition of the Ownership Certificate, the Initial Holder of the Ownership
Certificate and each Prospective Holder of an Ownership Certificate shall
represent and warrant in writing, in the case of each Initial Holder, in
substantially the form set forth in Exhibit E hereto, and in the case of each
Prospective Holder, in substantially the form set forth in Exhibit F hereto,
to
the Owner Trustee, the Trust Administrator and the Certificate Registrar and
any
of their respective successors that:
(i) Such
Person is duly authorized to purchase the Ownership Certificate and its purchase
of investments having the characteristics of the Ownership Certificate is
authorized under, and not directly or indirectly in contravention of, any law,
charter, trust instrument or other operative document, investment guidelines
or
list of permissible or impermissible investments that is applicable to the
investor;
(ii) Such
Person understands that each holder of an Ownership Certificate, by virtue
of
its acceptance thereof, assents to the terms, provisions and conditions of
the
Agreement; and
(iii) Such
Person is a REIT, a Qualified REIT Subsidiary or a Disregarded
Entity.
The
Owner
Trustee shall cause each Certificate to contain a legend, substantially similar
to the applicable legends provided in Exhibit A hereto, stating that transfer
of
such Certificate is subject to certain restrictions and referring prospective
purchasers of the Certificates to this Section 3.03 with respect to such
restrictions.
Section
3.04 Lost,
Stolen, Mutilated or Destroyed Certificate.
If
(a) a
mutilated Certificate is surrendered to the Certificate Registrar, or (b) the
Certificate Registrar receives evidence to its satisfaction that a Certificate
has been destroyed, lost or stolen, and there is delivered to the Certificate
Registrar proof of ownership satisfactory to the Certificate Registrar, together
with such security or indemnity as required by the Certificate Registrar and
the
Owner Trustee to save each of them harmless, then in the absence of notice
to
the Certificate Registrar or the Owner Trustee that such Certificate has been
acquired by a protected purchaser, the Owner Trustee shall execute on behalf
of
the Trust, and the Owner Trustee or the Certificate Registrar shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like tenor and Percentage Interest.
In connection with the issuance of any new Certificate under this Section 3.04,
the Owner Trustee or the Certificate Registrar may require the payment of a
sum
sufficient to cover any expenses of the Owner Trustee or the Certificate
Registrar (including any fees and expenses of counsel) and any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section 3.04 shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not
the
lost, stolen or destroyed Certificate shall be found at any time.
Section
3.05 Persons
Deemed Certificateholders.
Prior
to
due presentation of a Certificate for registration of transfer, the Owner
Trustee, the Certificate Registrar or any Certificate Paying Agent may treat
any
Certificateholder as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 4.02 and for all other purposes whatsoever,
and none of the Trust, the Owner Trustee, the Certificate Registrar or any
Certificate Paying Agent shall be bound by any notice to the
contrary.
Section
3.06 Access
to List of Certificateholders’ Names and Addresses.
The
Certificate Registrar shall furnish or cause to be furnished to the Depositor
or
the Owner Trustee, within 15 days after receipt by the Certificate Registrar
of
a written request therefor from the Depositor or the Owner Trustee, in such
form
as the Depositor or the Owner Trustee, as the case may be, may reasonably
require, the name and address of each Certificateholder as of the most recent
Record Date. A Certificateholder, by receiving and holding a Certificate, shall
be deemed to have agreed not to hold any of the Trust, the Depositor, the
Certificate Registrar and the Owner Trustee accountable or liable for damages
by
reason of the disclosure of its name and address, regardless of the source
from
which such information was derived.
Section
3.07 [Reserved].
Section
3.08 Maintenance
of Office or Agency.
The
Certificate Registrar on behalf of the Trust, shall maintain an office or
offices or agency or agencies where the Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Certificates and the Operative Agreements
may be served. The Certificate Registrar shall give the Owner Trustee prompt
notice, in writing, of any such notice or demand. The Certificate Registrar
initially designates the Corporate Trust Office of the Trust Administrator
as
its office for such purposes. The Certificate Registrar shall give prompt
written notice to the Depositor, the Owner Trustee and the Certificateholders
of
any change in the location of the Certificate Register or any such office or
agency.
Section
3.09 Certificate
Paying Agent.
(a) The
Owner
Trustee may appoint, and hereby appoints, the Trust Administrator as Certificate
Paying Agent under this Agreement. The Certificate Paying Agent shall make
distributions to each Certificateholder from the Collection Account pursuant
to
Section 4.02 hereof and Sections 5.08 and 6.02 of the Transfer and Servicing
Agreement and, upon request, shall report the amounts of such distributions
to
the Owner Trustee. The Certificate Paying Agent shall have the revocable power
to withdraw funds from the Collection Account for the purpose of making the
distributions referred to above. The Trust Administrator hereby accepts such
appointment and further agrees that it will be bound by the provisions of this
Agreement and the Transfer and Servicing Agreement relating to the Certificate
Paying Agent and shall:
(i) hold
all
sums held by it for the payment of amounts due with respect to the Certificates
in trust for the benefit of the Person entitled thereto until such sums shall
be
paid to such Person or otherwise disposed of as herein provided;
(ii) give
the
Owner Trustee notice of any default by the Trust of which a Responsible Officer
of the Trust Administrator has actual knowledge in the making of any payment
required to be made with respect to the Certificates;
(iii) at
any
time during the continuance of any such default, upon the written request of
the
Owner Trustee forthwith pay to the Owner Trustee on behalf of the Trust all
sums
so held in Trust by such Certificate Paying Agent;
(iv) immediately
resign as Certificate Paying Agent and forthwith pay to the Owner Trustee on
behalf of the Trust all sums held by it in trust for the payment of the
Certificates if at any time it ceases to meet the standards under this Section
3.09 required to be met by the Certificate Paying Agent at the time of its
appointment; and
(v) not
institute bankruptcy proceedings against the Trust in connection with this
Agreement.
(b) In
the
event that the Trust Administrator shall no longer be the Certificate Paying
Agent hereunder, the Owner Trustee, with the consent of the Depositor, shall
appoint a successor to act as Certificate Paying Agent (which shall be a bank
or
trust company). The Owner Trustee shall cause such successor Certificate Paying
Agent or any additional Certificate Paying Agent appointed by the Owner Trustee
to execute and deliver to the Owner Trustee an instrument in which such
successor Certificate Paying Agent or additional Certificate Paying Agent shall
agree with the Owner Trustee that as Certificate Paying Agent, such successor
Certificate Paying Agent or additional Certificate Paying Agent will hold all
sums, if any, held by it for payment in trust for the benefit of each
Certificateholder entitled thereto until such sums shall be paid to such
Certificateholder. The Certificate Paying Agent shall return all unclaimed
funds
to the Owner Trustee, and upon removal of a Certificate Paying Agent, such
Certificate Paying Agent shall also return all funds in its possession to the
Owner Trustee. The provisions of Sections 5.03, 5.04, 6.01, 6.05, 6.07, 6.08,
7.01 and 7.02 shall apply to the Trust Administrator also in its role as
Certificate Paying Agent for so long as the Trust Administrator shall act as
Certificate Paying Agent and, to the extent applicable, to any other Certificate
Paying Agent appointed hereunder. Any reference in this Agreement to the
Certificate Paying Agent shall include any co-paying agent unless the context
requires otherwise.
Section
3.10 Initial
Beneficiary.
Upon
the
formation of the Trust by the contribution by the Depositor pursuant to Section
2.05 and until the issuance of the Certificates, the Depositor shall be the
sole
beneficiary of the Trust.
ARTICLE
IV
APPLICATION
OF TRUST FUNDS; CERTAIN DUTIES
Section
4.01 Collection
Account.
All
of
the right, title and interest of the Trust in all funds on deposit from time
to
time in the Collection Account and in all proceeds thereof shall be held for
the
benefit of each Certificateholder and such other persons entitled to payments
therefrom. Except as otherwise expressly provided herein or in the Transfer
and
Servicing Agreement, the Collection Account shall be under the sole dominion
and
control of the Owner Trustee for the benefit of the
Certificateholders.
The
Collection Account shall be subject to and established and maintained in
accordance with the applicable provisions of the Transfer and Servicing
Agreement and the Indenture, including, without limitation, the provisions
of
Sections 5.08 and 6.02 of
the
Transfer and Servicing Agreement regarding distributions from the Collection
Account.
Section
4.02 Application
of Trust Funds.
(a) On
each
Payment Date, the Owner Trustee shall direct the Certificate Paying Agent to
distribute to each Certificateholder, from amounts on deposit in the Collection
Account, the distributions as provided in Sections 5.08 and 6.02 of the Transfer
and Servicing Agreement with respect to such Payment Date. The Owner Trustee
hereby directs the Certificate Paying Agent to distribute on each Payment Date
to each Certificateholder amounts on deposit in the Collection Account in
accordance with Sections 5.08 and 6.02 of the Transfer and Servicing Agreement
and the Certificate Paying Agent hereby acknowledges such
direction.
(b) All
payments to be made under this Agreement by the Certificate Paying Agent shall
be made only from the income and proceeds, including Net Proceeds from the
Notes, of the Trust Estate and only to the extent that the Certificate Paying
Agent has received such income or proceeds. The Bank shall not be liable to
any
Certificateholder, the Indenture Trustee or the Trust Administrator for any
amounts payable pursuant to this Section 4.02 except to the extent that
non-payment is due to the Owner Trustee’s acts or omissions amounting to willful
misconduct or gross negligence.
(c) Distributions
to any Certificateholder shall be subordinated to the creditors of the Trust,
including, without limitation, the Noteholders.
Section
4.03 Method
of Payment.
Subject
to Section 8.01(c), distributions required to be made to any Certificateholder
on any Payment Date as provided in Section 4.02 shall be made to the each Person
who was a Certificateholder on the preceding Record Date either by wire
transfer, in immediately available funds, to the account of each such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such respective Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five Business
Days prior to such Payment Date or, if not, by check mailed to each such
Certificateholder at the respective address of such Certificateholder appearing
in the Certificate Register.
Section
4.04 [Reserved]
Section
4.05 Segregation
of Moneys; No Interest.
Moneys
received by or on behalf of the Owner Trustee hereunder and deposited into
the
Collection Account will be segregated except to the extent required otherwise
by
law or the provisions of the Transfer and Servicing Agreement. The Owner Trustee
shall not be liable for payment of any interest in respect of such
moneys.
ARTICLE
V
AUTHORITY
AND DUTIES OF THE OWNER TRUSTEE;
ACTION
BY
CERTIFICATEHOLDERS
Section
5.01 General
Authority.
The
Owner
Trustee is authorized and directed to execute and deliver the Notes, the
Certificates, the other Operative Agreements to which the Trust is to be a
party, each certificate or other document attached as an exhibit to or
contemplated by the Operative Agreements to which the Trust is to be a party
and
any amendment or other agreement or instrument described herein, all as approved
by the Depositor, as evidenced conclusively by the Owner Trustee’s execution
thereof, and, on behalf of the Trust, to direct the Trust Administrator to
authenticate the Notes. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Operative Agreements.
Section
5.02 General
Duties.
(a) It
shall
be the duty of the Owner Trustee to discharge (or cause to be discharged) all
of
its responsibilities pursuant to the terms of this Agreement and the other
Operative Agreements to which the Trust is a party and to administer the Trust
in the interest of the Certificateholders, subject to the Operative Agreements
and in accordance with the provisions of this Agreement. Notwithstanding the
foregoing, the Owner Trustee shall be deemed to have discharged its duties
and
responsibilities hereunder and under the Operative Agreements to the extent
the
Trust Administrator has agreed in the Transfer and Servicing Agreement or this
Agreement, respectively, to perform any act or to discharge any duty of the
Owner Trustee or the Trust hereunder or under any Operative Agreement, and
the
Owner Trustee shall not be held liable for the default or failure of the Trust
Administrator to carry out its obligations under the this Agreement or the
Transfer and Servicing Agreement or any other Operative Agreement, respectively;
and
(b) It
shall
be the duty of the Depositor under the Transfer and Servicing Agreement to
obtain and preserve the Trust’s qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to protect
the
validity and enforceability of the Indenture, the Notes, the Collateral and
each
other instrument and agreement included in the Trust Estate. It shall be the
duty of the Owner Trustee to cooperate with the Depositor with respect to such
matters.
Section
5.03 Action
Upon Instruction.
(a) Subject
to this Article V and in accordance with the terms of the Operative Agreements,
the Ownership Certificate Holder may by written instruction direct the Owner
Trustee in the management of the Trust, but only to the extent consistent with
the limited purpose of the Trust. Such direction may be exercised at any time
by
written instruction of the Ownership Certificate Holder pursuant to this Article
V.
(b) Notwithstanding
the foregoing, the Owner Trustee shall not be required to take any action
hereunder or under any Operative Agreement if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Owner Trustee or is contrary
to the terms hereof or of any Operative Agreement or is otherwise contrary
to
law.
(c) Whenever
the Owner Trustee is unable to decide between alternative courses of action
permitted or required by the terms of this Agreement or under any other
Operative Agreement, or in the event that the Owner Trustee is unsure as to
the
application of any provision of this Agreement or any other Operative Agreement
or any such provision is ambiguous as to its application, or is, or appears
to
be, in conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take
with respect to a particular set of facts, the Owner Trustee may promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Ownership Certificate Holder requesting instruction as to the course of action
to be adopted, and to the extent the Owner Trustee acts in good faith in
accordance with any written instruction of the Ownership Certificate Holder,
the
Owner Trustee shall not be liable on account of such action to any Person.
If
the Owner Trustee shall not have received appropriate instruction within 10
days
of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action not
inconsistent with this Agreement or any other Operative Agreement, as it shall
deem to be in the best interests of each Certificateholder, and the Owner
Trustee shall have no liability to any Person for such action or
inaction.
Section
5.04 No
Duties Except as Specified under Specified Documents or in
Instructions.
The
Owner
Trustee shall not have any duty or obligation to manage, make any payment with
respect to, register, record, sell, dispose of, or otherwise deal with the
Trust
Estate, or to otherwise take or refrain from taking any action under, or in
connection with, any document contemplated hereby to which the Owner Trustee
or
the Trust is a party, except as expressly provided (i) in accordance with the
powers granted to and the authority conferred upon the Owner Trustee pursuant
to
this Agreement, and (ii) in accordance with any document or instruction
delivered to the Owner Trustee pursuant to Section 5.03; and no implied duties
or obligations shall be read into this Agreement or any Operative Agreement
against the Owner Trustee. Without limiting the foregoing, unless specifically
enumerated in any Operative Agreement to which the Owner Trustee is party,
the
Owner Trustee (i) shall have no duty or obligation to execute, file or deliver,
or cause the preparation, filing or delivery by other persons of, any such
documents, reports, filings, instruments, certificates or opinions as it shall
be the duty of the Trust to prepare, file or deliver pursuant to the Operative
Agreements, (ii) shall have no duty or obligation to take, or refrain from
taking, any action that is the duty or the obligation of the Trust pursuant
to
the Operative Agreements and (iii) shall have no duty or obligation to monitor
the Trust’s duties and obligations pursuant to the Operative Agreements nor
ensure that such duties and obligations are fulfilled by the Trust. The Owner
Trustee shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to the Trust or to
prepare or file any Securities and Exchange Commission filing for the Trust
or
to record this Agreement or any Operative Agreement or to prepare or file any
tax return for the Trust. The Owner Trustee nevertheless agrees that it will,
at
its own cost and expense, promptly take all action as may be necessary to
discharge any liens on any part of the Trust Estate that result from actions
by,
or claims against the Bank that are not related to the ownership or the
administration of the Trust Estate.
Section
5.05 Restrictions.
(a) The
Owner
Trustee shall not take any action that is inconsistent with the purposes of
the
Trust set forth in Section 2.03. The Ownership Certificate Holder shall not
direct the Owner Trustee to take action that would violate the provisions of
this Section 5.05.
(b) The
Owner
Trustee shall not, except as provided herein, convey or transfer any of the
Trust’s properties or assets, including those included in the Trust Estate, to
any person unless such conveyance or transfer shall not violate the provisions
of the Indenture.
Section
5.06 Prior
Notice to the Certificateholders with Respect to Certain Matters.
With
respect to the following matters, the Owner Trustee shall not take action unless
at least 30 days before the taking of such action, the Owner Trustee shall
have
notified each Certificateholder in writing of the proposed action and each
Certificateholder shall have notified the Owner Trustee in writing prior to
the
30th day after such notice is given that each Certificateholder has consented
to
such action or provided alternative direction:
(a) The
initiation of any claim or lawsuit by the Trust (except claims or lawsuits
brought in connection with the collection of cash distributions due and owing
under the Collateral) and the compromise of any action, claim or lawsuit brought
by or against the Trust (except with respect to the aforementioned claims or
lawsuits for collection of cash distributions due and owing under the
Collateral);
(b) the
election by the Trust to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Delaware Trust
Statute);
(c) the
amendment of the Indenture by a supplemental indenture or of this Agreement
or
any other Operative Agreement in circumstances where the consent of any
Noteholder is required;
(d) the
amendment or other change of the Indenture by a supplemental indenture or of
this Agreement, the Interest Rate Swap Agreement or any other Operative
Agreement in circumstances where the consent of any Noteholder is not required
and such amendment materially adversely affects the interests of any
Certificateholder;
(e) the
amendment of the Transfer and Servicing Agreement in circumstances where the
consent of any Securityholder is required;
(f) the
amendment, change or modification of the Transfer and Servicing Agreement,
except to cure any ambiguity or to amend or supplement any provision in a manner
or add any provision that would not materially and adversely affect the
interests of any Certificateholder;
(g) the
appointment pursuant to the Indenture of a successor Note Registrar, Paying
Agent or Indenture Trustee or pursuant to this Agreement of a successor
Certificate Registrar or Certificate Paying Agent or the consent to the
assignment by the Note Registrar, Paying Agent, Indenture Trustee, Certificate
Registrar or Certificate Paying Agent of its obligations under the Indenture
or
this Agreement, as applicable;
(h) the
consent to the calling or waiver of any default of any Operative
Agreement;
(i) the
consent to the assignment by the Indenture Trustee of its obligations under
any
Operative Agreement;
(j) except
as
provided in Article VIII hereof, dissolve, terminate or liquidate the Trust
in
whole or in part;
(k) the
merger, conversion or consolidation of the Trust with or into any other entity,
or conveyance or transfer of all or substantially all of the Trust’s assets to
any other entity;
(l) the
incurrence, assumption or guaranty by the Trust of any indebtedness other than
as set forth in this Agreement;
(m) the
taking of any action which conflicts with any Operative Agreement or would
make
it impossible to carry on the ordinary business of the Trust or change the
Trust’s purpose and powers set forth in this Agreement;
(n) the
confession of a judgment against the Trust;
(o) the
possession of the Trust assets, or assignment of the Trust’s right to property,
for other than a Trust purpose; or
(p) the
lending of funds by the Trust to any entity.
In
addition, the Trust shall not commingle its assets with those of any other
entity. The Trust shall maintain its financial and accounting books and records
separate from those of any other entity. Except as expressly set forth herein,
the Trust shall pay its indebtedness, operating expenses and liabilities from
its own funds, and the Trust shall neither incur any indebtedness nor pay the
indebtedness, operating expenses and liabilities of any other entity. Except
as
expressly set forth herein, the Trust shall not engage in any dissolution,
liquidation, consolidation, merger or sale of assets. The Trust shall maintain
appropriate minutes or other records of all appropriate actions and shall
maintain its office separate from the offices of the Depositor or any of its
Affiliates. The Trust shall not engage in any business activity in which it
is
not currently engaged other than as contemplated by the Operative Agreements
and
related documentation. The Trust shall not form, or cause to be formed, any
subsidiaries and shall not own or acquire any asset other than as contemplated
by the Operative Agreements and related documentation. Other than as
contemplated by the Operative Agreements and related documentation, the Trust
shall not follow the directions or instructions of the Depositor. The Trust
shall conduct its own business in its own name. The Trust shall observe all
formalities required under the Delaware Trust Statute. The Trust shall not
hold
out its credit as being available to satisfy the obligations of any other person
or entity. The Trust shall not acquire the obligations or securities of its
Affiliates or the Seller. Other than as contemplated by the Operative Agreements
and related documentation, the Trust shall not pledge its assets for the benefit
of any other person or entity. The Trust shall correct any known
misunderstanding regarding its separate identity. The Trust shall not identify
itself as a division of any other person or entity.
For
accounting purposes, the Trust shall be treated as an entity separate and
distinct from each Certificateholder. The pricing and other material terms
of
all transactions and agreements to which the Trust is a party shall be
intrinsically fair to all parties thereto. This Agreement is and shall be the
only agreement among the parties thereto with respect to the creation, operation
and termination of the Trust.
The
Owner
Trustee shall not have the power, except upon the written direction of the
Ownership Certificate Holder, and to the extent otherwise consistent with the
Operative Agreements, to (i) remove or replace the Indenture Trustee, or
(ii) institute a bankruptcy against the Trust. So long as the Indenture
remains in effect, to the extent permitted by applicable law, the Ownership
Certificate Holder shall have no power to commence, and shall not commence,
any
bankruptcy with respect to the Trust or direct the Owner Trustee to commence
any
bankruptcy with respect to the Trust.
(q) The
Owner
Trustee shall not have the power, except upon the written direction of the
Ownership Certificate Holder, to (i) remove the Trust Administrator under the
Transfer and Servicing Agreement pursuant to Section 7.10 thereof, (ii) appoint
a successor Trust Administrator pursuant to Section 7.10 of the Transfer and
Servicing Agreement, or (iii) except as expressly provided in the Indenture,
to
sell the Collateral after the termination of the Indenture. The Owner Trustee
shall take the actions referred to in the preceding sentence only upon written
instructions signed and authorized by the Ownership Certificate
Holder.
Section
5.07 Action
by the Holder with Respect to Bankruptcy.
The
Owner
Trustee shall not have the power to commence or consent to a bankruptcy relating
to the Trust without the prior approval of the Ownership Certificate Holder
and
the delivery to the Owner Trustee by the Ownership Certificate Holder of a
certificate certifying that the Ownership Certificate Holder reasonably believes
that the Trust is insolvent. This paragraph shall survive for one year and
one
day following termination of this Agreement. So long as the Indenture remains
in
effect, the Ownership Certificate Holder shall not have the power to institute,
and shall not institute, any bankruptcy with respect to the Trust or direct
the
Owner Trustee to take such action.
Section
5.08 Restrictions
on the Ownership Certificate Holder’s Power.
The
Ownership Certificate Holder shall not direct the Owner Trustee to take or
to
refrain from taking any action if such action or inaction would be contrary
to
any obligation of the Trust or the Owner Trustee under this Agreement or any
of
the Operative Agreements or would be contrary to Section 2.03 nor shall the
Owner Trustee be obligated to follow any such direction, if given.
ARTICLE
VI
CONCERNING
THE OWNER TRUSTEE
Section
6.01 Acceptance
of Trusts and Duties.
The
Owner
Trustee accepts the trusts hereby created and agrees to perform the same but
only upon the terms of this Agreement and the terms of the Transfer and
Servicing Agreement. The Owner Trustee also agrees to disburse all moneys
actually received by it constituting part of the Trust Estate upon the terms
of
this Agreement. The Bank shall not be answerable or accountable hereunder or
under any other Operative Agreements under any circumstances, except (i) for
its
own willful misconduct, gross negligence or bad faith, (ii) in the case of
the
inaccuracy of any representation or warranty contained in Section 6.04,
(iii) for liabilities arising from the failure by the Bank to perform
obligations expressly undertaken by it in the last sentence of Section 5.04,
or
(iv) for taxes, fees or other charges based on or measured by any fees,
commissions or compensation received by the Bank in connection with any of
the
transactions contemplated by this Agreement, any other Operative Agreements
or
the Notes. In particular, but not by way of limitation:
(a) The
Bank
shall not be liable for any error of judgment made in good faith by a
Responsible Officer of the Owner Trustee;
(b) The
Bank
shall not be liable with respect to any action taken or omitted to be taken
by
the Owner Trustee in accordance with the instructions of any
Certificateholder;
(c) No
provision of this Agreement shall require the Bank to expend or risk funds
or
otherwise incur any financial liability in the performance of any of the Owner
Trustee’s rights or powers hereunder or under any other Operative Agreements if
the Bank shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) Under
no
circumstance shall the Bank be liable for indebtedness evidenced by or arising
under any of the Operative Agreements, including the principal of and interest
on the Notes;
(e) The
Bank
shall not be liable with respect to any action taken or omitted to be taken
by
the Depositor, the Trust Administrator, the Master Servicer, the Indenture
Trustee, any Officer or the Certificate Paying Agent under this Agreement or
any
other Operative Agreement or otherwise and the Bank shall not be obligated
to
perform or monitor the performance of any obligations or duties under this
Agreement or the other Operative Agreements which are to be performed by the
Certificate Paying Agent under this Agreement, the Trust Administrator under
the
Transfer and Servicing, the Indenture Trustee under the Indenture or by any
other Person under any of the Operative Agreements; and
(f) The
Bank
shall not be responsible for or in respect of the recitals herein, the validity
or sufficiency of this Agreement or for the due execution hereof by the
Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Trust Estate or for or in respect of the validity or
sufficiency of the Operative Agreements, other than the certificate of
authentication on the Certificates, and the Bank shall in no event assume or
incur any liability, duty or obligation to any Noteholder, the Depositor or
to
any Certificateholder, other than as expressly provided for herein.
Section
6.02 Furnishing
of Documents.
The
Owner
Trustee will furnish to the Trust Administrator (for distribution to each
Certificateholder), promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
hereunder or under the Operative Agreements unless the Trust Administrator
shall
have already received the same.
Section
6.03 Books
and Records.
The
Owner
Trustee shall keep or cause to be kept proper books of record and account of
all
the transactions under this Agreement, including a record of the name and
address of each Certificateholder. The Owner Trustee shall be deemed to have
complied with this Section 6.03 by the appointment of the Trust Administrator
and the Certificate Paying Agent to perform the duties hereunder.
Section
6.04 Representations
and Warranties.
(a) The
Bank
represents and warrants to the Depositor, for the benefit of each
Certificateholder, as follows:
(i) the
Bank
is a Delaware banking corporation duly organized and validly existing under
the
laws of the State of Delaware and has the power and authority to execute,
deliver and perform its obligations under this Agreement and (assuming due
authorization, execution and delivery of this Agreement by the Depositor and
Trust Administrator), has the power and authority as Owner Trustee to execute
and deliver the Operative Agreements and to perform its obligations thereunder
and, assuming the due authorization, execution and delivery hereof by the other
parties hereto, this Agreement constitutes a legal, valid and binding obligation
of the Bank or the Owner Trustee, as the case may be, enforceable against the
Bank or the Owner Trustee, as the case may be, in accordance with its terms,
except that (a) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors’ rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought;
(ii) the
Bank
has no reason to believe that anyone authorized to act on its behalf has offered
any interest in and to the Trust for sale to, or solicited any offer to acquire
any of the same from, anyone;
(iii) the
execution, delivery and performance by the Bank, either in its individual
capacity or as Owner Trustee, as the case may be, of the Operative Agreements
will not result in any violation of, or be in any conflict with, or constitute
a
default under any of the provisions of any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, lease, note or bond
purchase agreement, license, judgment, order or other agreement to which the
Bank is a party or by which it or any of its properties is bound;
(iv) the
execution and delivery by the Bank of this Agreement, and the performance of
its
duties as Owner Trustee hereunder, do not require the consent or approval of,
the giving of notice to, or the registration with, or the taking of any other
action with respect to, any governmental authority or agency of the State of
Delaware (except as may be required by the Delaware Trust Statute);
and
(v) there
are
no pending or, to the best of its knowledge, threatened actions or proceedings
against the Bank before any court, administrative agency or tribunal which,
if
determined adversely to it, would materially and adversely affect its ability,
either in its individual capacity or as Owner Trustee, as the case may be,
to
perform its obligations under this Agreement or the Operative
Agreements.
(b) Xxxxx
Fargo Bank, N.A., as Trust Administrator, hereby represents and warrants to
the
Depositor, for the benefit of each Certificateholder, that:
(i) it
is a
national banking association duly organized and validly existing in good
standing under the laws of the United States, and has the power and authority
to
execute, deliver and perform its obligations under this Agreement and, assuming
the due authorization, execution and delivery hereof by the other parties
hereto, this Agreement constitutes a legal, valid and binding obligation of
the
Trust Administrator, enforceable against the Trust Administrator in accordance
with its terms, except that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws relating
to creditors’ rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought;
(ii) it
has
taken all action necessary to authorize the execution and delivery by it of
this
Agreement, and this Agreement will be executed and delivered by one of its
officers who is duly authorized to execute and deliver this Agreement on its
behalf; and
(iii) neither
the execution nor the delivery by it of this Agreement nor the consummation
by
it of the transactions contemplated hereby nor compliance by it with any of
the
terms or provisions hereof will contravene any federal, governmental rule or
regulation governing the banking or trust powers of the Trust Administrator
or
any judgment or order binding on it, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may be
bound.
Section
6.05 Reliance;
Advice of Counsel.
(a) Except
as
provided in Section 6.01, the Owner Trustee shall incur no liability to anyone
in acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper believed
by
it to be genuine and believed by it to be signed by the proper party or parties.
The Owner Trustee may accept a certified copy of a resolution of the board
of
directors or other governing body of any corporate or partnership entity as
conclusive evidence that such resolution has been duly adopted by such body
and
that the same is in full force and effect. As to any fact or matter the manner
of ascertainment of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president (or the general partner, in the case of a
partnership) and by the treasurer or any assistant treasurer or the secretary
or
any assistant secretary of the relevant party, as to such fact or matter, and
such certificate shall constitute full protection to the Owner Trustee for
any
action taken or omitted to be taken by it in good faith in reliance
thereon.
(b) In
its
exercise or administration of the trusts and powers hereunder, including its
obligations under Section 5.02(b), and in the performance of its duties and
obligations under this Agreement or the other Operative Agreements, the Owner
Trustee may employ agents and attorneys and enter into agreements (including
the
Transfer and Servicing Agreement) with any of them, and the Owner Trustee shall
not be answerable for the default or misconduct of any such agents or attorneys
if such agents or attorneys shall have been selected by the Owner Trustee with
reasonable care. If, and to the extent, the Seller shall have failed to
reimburse the Owner Trustee for all reasonable expenses and indemnities incurred
pursuant to this Section 6.05(b), as provided in Section 7.01 and Section 7.02,
the Owner Trustee may seek reimbursement therefor from the Trust
Estate.
(c) In
the
administration of the trusts and performance of its duties hereunder, the Owner
Trustee may consult with counsel, accountants and other skilled Persons to
be
selected and employed by it, and the Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
reasonable advice or opinion of any such counsel, accountants or other skilled
Persons. If, and to the extent, the Seller shall have failed to reimburse the
Owner Trustee for all reasonable expenses and indemnities incurred pursuant
to
this Section 6.05(c), as provided in Section 7.01 and Section 7.02, the Owner
Trustee may seek reimbursement therefor from the Trust Estate.
Section
6.06 Not
Acting in Individual Capacity.
Except
as
provided in this Article VI, in accepting the trusts hereby created the Owner
Trustee acts solely as trustee hereunder and not in its individual capacity,
and
all persons having any claim against the Owner Trustee by reason of the
transactions contemplated by the Operative Agreements shall look only to the
Trust Estate for payment or satisfaction thereof.
Section
6.07 Owner
Trustee Not Liable for Certificates or Collateral.
The
recitals contained herein and in the Certificates (other than the signatures
and
countersignatures of the Owner Trustee on the Certificates) shall be taken
as
the statements of the Depositor, and the Owner Trustee assumes no responsibility
for the correctness thereof. The Owner Trustee makes no representations as
to
the validity or sufficiency of this Agreement, of any Operative Agreement or
of
the Certificates (other than the signatures and countersignatures of the Owner
Trustee on the Certificates) or the Notes, or of any Collateral or related
documents. The Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability
of
any Collateral, or the perfection and priority of any security interest created
by any Collateral or the maintenance of any such perfection and priority, or
for
or with respect to the sufficiency of the Trust Estate or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement or the Noteholders under the Indenture, including, without limitation:
the existence, condition and ownership of any Collateral; the existence and
enforceability of any insurance thereon; the existence and contents of any
Collateral on any computer or other record thereof; the validity of the
assignment of any Collateral to the Trust or of any intervening assignment;
the
completeness of any Collateral; the performance or enforcement of any
Collateral; the compliance by the Depositor with any warranty or representation
made under any Operative Agreements or in any related document or the accuracy
of any such warranty or representation or any action of the Trust Administrator
or the Indenture Trustee taken in the name of the Owner Trustee.
Section
6.08 Owner
Trustee May Own Notes.
The
Owner
Trustee in its individual capacity may become an owner or pledgee of Notes
and
may deal with the Depositor, the Trust Administrator and the Indenture Trustee
in banking transactions with the same rights as it would have if it were not
Owner Trustee.
Section
6.09 Licenses.
The
Depositor shall cause the Trust to use its best efforts to obtain and maintain
the effectiveness of any licenses required in connection with this Agreement
and
the other Operative Agreements and the transactions contemplated hereby and
thereby until such time as the Trust shall terminate in accordance with the
terms hereof. It shall be the duty of the Owner Trustee to cooperate with the
Depositor with respect to such matters.
Section
6.10 Doing
Business in Other Jurisdictions.
Notwithstanding
anything contained herein to the contrary, neither the Bank nor the Owner
Trustee shall be required to take any action in any jurisdiction other than
in
the State of Delaware if the taking of such action will (i) require the consent
or approval or authorization or order of or the giving of notice to, or the
registration with or the taking of any other action in respect of, any state
or
other governmental authority or agency of any jurisdiction other than the State
of Delaware; (ii) result in any fee, tax or other governmental charge under
the
laws of any jurisdiction or any political subdivisions thereof in existence
on
the date hereof other than the State of Delaware becoming payable by the Bank
or
the Owner Trustee; or (iii) subject the Bank or the Owner Trustee to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes
of
action arising from acts unrelated to the consummation of the transactions
by
the Bank or the Owner Trustee, as the case may be, contemplated hereby. The
Owner Trustee shall be entitled to obtain advice of counsel (which advice shall
be an expense of the Trust) to determine whether any action required to be
taken
pursuant to this Agreement results in the consequences described in clauses
(i),
(ii) and (iii) of the preceding sentence. In the event that such counsel advises
the Owner Trustee that such action will result in such consequences, the Owner
Trustee will appoint a co-trustee pursuant to Section 9.05 hereof to proceed
with such action.
Section
6.11 Xxxxxxxx-Xxxxx
Act Certification.
Notwithstanding
anything to the contrary herein or in any Operative Agreement, the Owner Trustee
shall not be required to execute, deliver or certify on behalf of the Trust
or
any other Person any filings, certificates, affidavits or other instruments
in
connection with certifications required under the Xxxxxxxx-Xxxxx Act of
2002.
ARTICLE
VII
INDEMNIFICATION
AND COMPENSATION
Section
7.01 Trust
Expenses.
The
Seller shall pay the organizational expenses of the Trust as they may arise
or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee in connection therewith.
The Seller shall also pay (or reimburse the Bank for) all reasonable expenses
of
the Owner Trustee hereunder, including, without limitation, the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and duties under the Operative
Agreements.
Section
7.02 Indemnification.
The
Seller agrees to assume liability for, and indemnify the Bank and its
successors, assigns, officers, directors, agents and servants, against and
from,
any and all liabilities, obligations, losses, damages, taxes, claims, actions,
suits, costs, expenses and disbursements (including reasonable legal fees and
expenses) of any kind and nature whatsoever (collectively, “Expenses”) which may
be imposed on, incurred by or asserted at any time against the Bank (whether
or
not indemnified against by other parties) in any way relating to or arising out
of this Agreement, any Operative Agreement, the Collateral, the administration
of the Trust Estate or the action or inaction of the Owner Trustee hereunder,
except only that the Seller shall not be required to indemnify the Bank for
Expenses arising or resulting from any of the matters described in the third
sentence of Section 6.01. The indemnities contained in this Section 7.02 shall
survive the resignation or termination of the Owner Trustee or the termination
of this Agreement. In the event of any claim, action or proceeding for which
indemnity will be sought pursuant to this Section, the Owner Trustee’s choice of
legal counsel shall be subject to the approval of the Seller, which approval
shall not be unreasonably withheld.
Section
7.03 Compensation.
The
Bank
shall receive as compensation for its services hereunder such fees as are set
forth in the Fee Letter Agreement between the Bank and the Seller. The Trust
Administrator shall pay the annual fee of the Owner Trustee, and the Seller
shall pay the initial fee of the Owner Trustee.
Section
7.04 Lien
on Trust Estate.
The
Bank
shall have a lien on the Trust Estate for any compensation or indemnity due
hereunder, such lien to be subject only to prior liens of the Indenture. The
Bank shall not bring any proceedings to foreclose on such lien if and to the
extent the Trust Estate is subject to the lien of the Indenture. Any amount
paid
to the Owner Trustee pursuant to this Article VII shall be deemed not to be
part
of the Trust Estate immediately after such payment.
ARTICLE
VIII
TERMINATION
OF AGREEMENT
Section
8.01 Termination
of Agreement.
(a) This
Agreement (other than Article VII) shall terminate and the trusts created hereby
shall dissolve and terminate and the Trust Estate shall, subject to the
Indenture and Sections 4.01 and 7.04 and Section 3808 of the Delaware Trust
Statute, be distributed to the Certificateholders, and this Agreement shall
be
of no further force or effect, upon the earlier of (i) the full payment of
principal and interest due on all Classes of the Notes; and (ii) the sale or
other final disposition by the Indenture Trustee or the Owner Trustee, as the
case may be, of all the Trust Estate and the final distribution by the Trust
Administrator or the Owner Trustee, as the case may be, of all moneys or other
property or proceeds of the Trust Estate in accordance with the terms of the
Indenture, the Transfer and Servicing Agreement and Section 4.02. The
bankruptcy, liquidation or dissolution of any Certificateholder shall not
operate to terminate this Agreement, nor entitle such Certificateholder’s legal
representatives to claim an accounting or to take any action or proceeding
in
any court for a partition or winding up of the Trust Estate, nor otherwise
affect the rights, obligations and liabilities of the parties
hereto.
(b) Except
as
provided in Section 8.01(a), none of the Depositor or any Certificateholder
shall be entitled to revoke or terminate the Trust established
hereunder.
(c) Notice
of
any termination of the Trust, specifying the Payment Date upon which
Certificateholders shall surrender their Certificates to the Certificate Paying
Agent for payment of the final distribution and cancellation, shall be given
by
the Certificate Paying Agent by letter to the Certificateholders and the Rating
Agencies mailed within five Business Days of receipt of notice of the final
payment on the Notes pursuant to the Transfer and Servicing Agreement, stating
(i) the Payment Date upon or with respect to which final payment of the
Certificates shall be made upon presentation and surrender of the Certificates
at the office of the Certificate Paying Agent therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Payment Date is not applicable, payments being made only
upon
presentation and surrender of the Certificates at the office of the Certificate
Paying Agent therein specified. The Certificate Paying Agent shall give such
notice to the Owner Trustee and the Certificate Registrar at the time such
notice is given to the Certificateholders. Upon presentation and surrender
of
the Certificates, the Certificate Paying Agent shall cause to be distributed
to
the applicable Certificateholder amounts distributable on such Payment Date
pursuant to Section 5.08 and Section 6.02 of the Transfer and Servicing
Agreement.
(d) Upon
the
winding up of the Trust and its termination, the Owner Trustee shall upon the
written request of the Depositor cause the Certificate of Trust to be cancelled
by filing a certificate of cancellation with the Secretary of State in
accordance with the provisions of Section 3810 of the Delaware Trust
Statute.
ARTICLE
IX
SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section
9.01 Eligibility
Requirements for Owner Trustee.
The
Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Delaware Trust Statute; authorized to exercise corporate powers;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or state authorities; and having (or
having a parent which has) a short-term debt rating of at least “A-1” or the
equivalent by, or which is otherwise acceptable to, the Rating Agencies. If
such
corporation shall publish reports of condition at least annually, pursuant
to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions
of
this Section, the Owner Trustee shall resign immediately in the manner and
with
the effect specified in Section 9.02.
Section
9.02 Resignation
or Removal of Owner Trustee.
The
Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving 30 days’ prior written notice thereof to the Depositor, the
Certificateholders and the Indenture Trustee. Upon receiving such notice of
resignation, the Depositor shall promptly appoint (subject to the consent of
the
Certificateholders, which consent shall not be unreasonably withheld) a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and one copy to
the
successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of
such
notice of resignation, the resigning Owner Trustee may petition any court of
competent jurisdiction for the appointment of a successor Owner
Trustee.
If
at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 9.01 and shall fail to resign after written request
therefor by the Depositor, or if at any time the Owner Trustee shall be legally
unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of
the
Owner Trustee or of its property shall be appointed, or any public officer
shall
take charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
may remove the Owner Trustee. If the Depositor shall remove the Owner Trustee
under the authority of the immediately preceding sentence, the Depositor shall
promptly appoint (subject to the consent of the Certificateholders, which
consent shall not be unreasonably withheld) a successor Owner Trustee by written
instrument in duplicate, one copy of which instrument shall be delivered to
the
outgoing Owner Trustee so removed and one copy to the successor Owner Trustee
and payment of all fees owed to the outgoing Owner Trustee.
Any
resignation or removal of the Owner Trustee and appointment of a successor
Owner
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 9.03 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Trust Administrator shall provide notice of such
resignation or removal of the Owner Trustee to the Rating Agencies.
Section
9.03 Successor
Owner Trustee.
Any
successor Owner Trustee appointed pursuant to Section 9.02 shall execute,
acknowledge and deliver to the Trust Administrator and to its predecessor Owner
Trustee an instrument accepting such appointment under this Agreement, and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective and such successor Owner Trustee without any further act,
deed
or conveyance, shall become fully vested with all the rights, powers, duties,
and obligations of its predecessor under this Agreement, with like effect as
if
originally named as Owner Trustee. The predecessor Owner Trustee shall upon
payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Agreement; and the
Trust Administrator and the predecessor Owner Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Owner Trustee all
such rights, powers, duties, and obligations.
No
successor Owner Trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor Owner Trustee shall be
eligible pursuant to Section 9.01.
Upon
acceptance of appointment by a successor Owner Trustee pursuant to this Section,
the Trust Administrator shall mail notice of the successor of such Owner Trustee
to all Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies. If the Trust Administrator fails to mail such notice within 10 days
after acceptance of appointment by the successor Owner Trustee, the successor
Owner Trustee shall cause such notice to be mailed at the expense of the Trust
Administrator.
Section
9.04 Merger
or Consolidation of Owner Trustee.
Any
Person into which the Owner Trustee may be merged or converted or with which
it
may be consolidated or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder,
provided
such
Person shall be eligible pursuant to Section 9.01, without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
Section
9.05 Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust Estate
or any Collateral may at the time be located, and for the purpose of performing
certain duties and obligations of the Owner Trustee with respect to the Trust
and the Certificates under the Transfer and Servicing Agreement, the Owner
Trustee shall have the power and shall execute and deliver all instruments
to
appoint one or more Persons approved by the Owner Trustee to act as co-trustee,
jointly with the Owner Trustee, or separate trustee or separate trustees, of
all
or any part of the Trust Estate, and to vest in such Person, in such capacity,
such title to the Trust, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Owner Trustee may consider necessary or desirable. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 9.01 and no notice of
the
appointment of any co-trustee or separate trustee shall be required pursuant
to
Section 9.03.
The
Owner
Trustee hereby appoints the Trust Administrator for the purpose of establishing
and maintaining the Collection Account and making the distributions therefrom
to
the Persons entitled thereto pursuant to Section 5.08 and Section 6.02 of the
Transfer and Servicing Agreement.
Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provision and
conditions:
(a) all
rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Owner Trustee joining in such act), except to the extent that under any law
of
any jurisdiction in which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties, and obligations (including the
holding of title to the Trust or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Owner Trustee;
(b) no
trustee under this Agreement shall be personally liable by reason of any act
or
omission of any other trustee under this Agreement; and
(c) the
Trust
Administrator and the Owner Trustee acting jointly may at any time accept the
resignation of or remove any separate trustee or co-trustee.
Any
notice, request or other writing given to the Owner Trustee shall be deemed
to
have been given to the separate trustees and co-trustees, as if given to each
of
them. Every instrument appointing any separate trustee or co-trustee, other
than
this Agreement, shall refer to this Agreement and to the conditions of this
Article. Each separate trustee and co-trustee, upon its acceptance of
appointment, shall be vested with the estates specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement, specifically
including every provision of this Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the Owner Trustee.
Each
such instrument shall be filed with the Owner Trustee and a copy thereof given
to the Trust Administrator.
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee as
its
Agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a
new
or successor trustee.
ARTICLE
X
MISCELLANEOUS
Section
10.01 Supplements
and Amendments.
This
Agreement may be amended by the Depositor, the Trust Administrator and the
Owner
Trustee, with the consent of the
Certificateholder and
with
prior written notice to the Rating Agencies, but without the consent of any
of
the Noteholders or the Indenture Trustee, (i) to cure any ambiguity, (ii) to
conform the provisions of this Agreement to the information contained in the
Prospectus or to correct or supplement any provision herein, (iii) to make
any
other provision with respect to matters or questions arising under this
Agreement or (iv) to add, delete, or amend any provision in order to comply
with
any requirements imposed by the Code, ERISA and their related regulations;
provided,
however, that
such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in
any
material respect the interests of any Noteholder or Certificateholder or
adversely affect the tax status of the Trust. An amendment shall not be deemed
to adversely affect in any material respect the interests of any Noteholder
or
Certificateholder and no opinion referred to in the preceding proviso shall
be
required to be delivered if the Person requesting the amendment obtains a letter
from each Rating Agencies stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to each
applicable Class of Notes and Certificates. Notwithstanding the preceding
sentence, an opinion shall be required with respect to tax matters as set forth
in this paragraph.
This
Agreement may also be amended from time to time by the Depositor, the Trust
Administrator and the Owner Trustee, with the prior written consent of the
Rating Agencies, the holders of each Class of Notes affected thereby evidencing
more than 66⅔% of the Outstanding Balance of each such Class of Notes and the
Certificateholders, for the purpose of adding any provisions to or changing
in
any manner or eliminating any of the provisions of this Agreement or modifying
in any manner the rights of the Certificateholders; provided,
however,
that no
such amendment shall, as evidenced by an Opinion of Counsel, adversely affect
the tax status of the Trust; and provided,
further,
that no
such amendment shall (a) reduce in any manner the amount of, or delay the timing
of, collections of payments on the Collateral or payments that shall be required
to be made for the benefit of the Noteholders or any Certificateholder or
(b) reduce the aforesaid percentage of the Outstanding Balance of the Notes
required to consent to or to waive the requirement for any Certificateholder
to
consent to any such amendment, in either case of clause (a) or (b) without
the consent of the holders of all the outstanding Notes and each
Certificateholder.
Notwithstanding
the foregoing, no provision of Sections 2.03 or 5.06 hereof may be amended
in
any manner unless (i) 100% of the Outstanding Balance of the Noteholders have
consented in writing thereto, (ii) the Rating Agencies have consent in writing
thereto or (iii) the Notes have been paid in full and the Indenture has been
discharged.
Promptly
after the execution of any such amendment or consent, the Trust Administrator
shall furnish written notification of the substance of such amendment or consent
to each Certificateholder, the Indenture Trustee and the Rating
Agencies.
It
shall
not be necessary for the consent of the Certificateholders or the Noteholders
pursuant to this Section 10.01 to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents (and any other
consents of the Certificateholders provided for in this Agreement or in any
other Operative Agreement) and of evidencing the authorization of the execution
thereof by the Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
Promptly
after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of
State.
Prior
to
the execution of any amendment to this Agreement or the Certificate of Trust,
the Owner Trustee and the Trust Administrator shall be entitled to receive
and
rely upon an Opinion of Counsel, at the expense of the Trust, stating that
the
execution of such amendment is authorized or permitted by this Agreement.
Neither the Owner Trustee nor the Trust Administrator shall be obligated to
enter into any such amendment which affects the Owner Trustee’s or Trust
Administrator’s own rights, duties or immunities under this Agreement or
otherwise.
Section
10.02 No
Legal Title to Trust Estate in Certificateholders.
The
Certificateholders shall not have legal title to any part of the Trust Estate
and shall only be entitled to receive distributions with respect to their
respective undivided beneficial interest therein pursuant to Section 4.02 once
all amounts then owing with respect to the Notes have been paid in accordance
with the Indenture. No transfer, by operation of law of any right, title and
interest of any Certificateholder in and to its undivided beneficial interest
in
the Trust Estate or hereunder shall operate to terminate this Agreement or
the
trusts hereunder or entitle any successor transferee to an accounting or to
the
transfer to it of legal title to any part of the Trust Estate.
Section
10.03 Pledge
of Collateral by Owner Trustee is Binding.
The
pledge of the Collateral to the Indenture Trustee by the Trust made under the
Indenture and pursuant to the terms of this Agreement shall bind each
Certificateholder and shall be effective to transfer or convey the rights of
the
Trust and each Certificateholder in and to such Collateral to the extent set
forth in the Indenture. No purchaser or other grantee shall be required to
inquire as to the authorization, necessity, expediency or regularity of such
pledge or as to the application of any proceeds with respect thereto by the
Owner Trustee.
Section
10.04 Limitations
on Rights of Others.
Nothing
in this Agreement, whether express or implied (except for Section 7.04), shall
be construed to give to any Person other than the Owner Trustee and the
Certificateholders any legal or equitable right in the Trust Estate or under
or
in respect of this Agreement or any covenants, conditions or provisions
contained herein.
Section
10.05 Notices.
Unless
otherwise expressly specified or permitted by the terms hereof, all notices
shall be in writing and delivered by hand, by courier or mailed by certified
mail, postage prepaid, (a) if to the Owner Trustee or the Trust, addressed
to it
at the Corporate Trust Office of the Owner Trustee or to such other address
as
the Owner Trustee may have set forth in a written notice to the
Certificateholders and the Depositor addressed to it at the address set forth
for such Certificateholders in the Certificate Register; (b) if to the Trust
Administrator, addressed to it at the Corporate Trust Office of the Trust
Administrator; and (c) if to the Depositor, addressed to it at Financial Asset
Securities Corp. 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Legal. Whenever any notice in writing is required to be given by the Owner
Trustee or the Trust Administrator, such notice shall be deemed given and such
requirement satisfied if such notice is mailed by certified mail, postage
prepaid, addressed as provided above.
Section
10.06 Severability.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Section
10.07 Separate
Counterparts.
This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
Section
10.08 Successors
and Assigns.
All
representations, warranties, covenants and agreements contained herein shall
be
binding upon, and inure to the benefit of, the Owner Trustee and its successors
and assigns and the Depositor and each Certificateholder and its respective
successors, all as herein provided. Any request, notice, direction, consent,
waiver or other instrument or action by any Certificateholder shall bind the
successors of each such Certificateholder.
Section
10.09 Headings.
The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section
10.10 Governing
Law.
THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO THE CONFLICT OF
LAWS PROVISIONS THEREOF, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
10.11 No
Petition.
(a) The
Owner
Trustee and the Trust Administrator, by entering into this Agreement, each
Certificateholder, by accepting the Certificates, and the Indenture Trustee
and
each Noteholder, by accepting the benefits of this Agreement, hereby covenant
and agree that they will not at any time institute against the Depositor or
the
Trust, or join in any institution against the Depositor or the Trust of, any
bankruptcy under any United States federal or state bankruptcy or similar law
in
connection with any obligations relating to the Certificates, the Notes, this
Agreement or any of the other Operative Agreements; provided,
however,
nothing
contained herein shall prohibit the Indenture Trustee from filing proofs of
claim.
(b) The
Depositor shall not be liable for the default or misconduct of the Trust
Administrator, the Owner Trustee, the Indenture Trustee or the Certificate
Paying Agent under any of the Operative Agreements or otherwise and the
Depositor shall have no obligation or liability to perform the obligations
of
the Trust under this Agreement or the Operative Agreements that are required
to
be performed by the Trust Administrator under the Transfer and Servicing
Agreement or the Indenture Trustee under the Indenture.
Section
10.12 No
Recourse.
Each
Certificateholder by accepting a Certificate acknowledges that such
Certificateholder’s Certificate represents a beneficial interest in the Trust
only and does not represent an interest in or an obligation of the Depositor,
the Trust Administrator, the Owner Trustee, any co-trustee, the Bank or any
Affiliate thereof (other than the Trust) and no recourse may be had against
such
parties or their assets, except as may be expressly set forth or contemplated
in
this Agreement, the Certificates or the other Operative Agreements.
Section
10.13 Customer
Identification.
The
Depositor’s legal name, principal place of business, local office or other
physical location street address is Financial Asset Securities Corp. 000
Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, and its government issued
identification number is 00-0000000. The Seller’s legal name, principal place of
business, local office or other physical location street address is Aames
Investment Corporation, 000
Xxxxx
Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, and its government issued
identification number is
D07810567. In connection with any federal, state or local laws requiring
financial institutions to obtain, verify and record information that identifies
each person or entity who opens an account, the Owner Trustee may request,
and
the Seller and the Depositor agree to promptly provide to the Owner Trustee,
copies of documentation which substantiates the identity of the Depositor or
the
Seller, as applicable. Such documentation may include, but is not limited to,
financial statements, government licenses, certified copies of formation
documents or identification documentation of principals claiming to represent
such party.
ARTICLE
XI
OFFICERS
Section
11.01 Appointment
of Officers.
The
Trust
may have one or more Officers who are hereby empowered to take and are
responsible for performing all ministerial duties on behalf of the Trust
pursuant to this Agreement and the other Operative Agreements, including,
without limitation, the execution of the Officers’ Certificate (as defined in
the Indenture), the Trust Order (as defined in the Indenture), the Trust Request
(as defined in the Indenture), the annual compliance report required under
Section 3.09 of the Indenture, and any annual reports, documents and other
reports which the Trust is required to file with the Securities and Exchange
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended. Each of the Chairman of the Board, the Chief Executive
Officer, the President, each Senior Vice President and each Vice President
of
the Depositor is hereby appointed as an Officer of the Trust. The Depositor
shall promptly deliver to the Owner Trustee and the Indenture Trustee a list
of
its officers who shall become the Officers of the Trust pursuant to this Section
11.01.
Section
11.02 Officers
to Provide Information to the Owner Trustee.
It
shall
be the duty of each Officer to keep the Owner Trustee reasonably and promptly
informed as to material events relating to the Trust, including, without
limitation, all claims pending or threatened against the Trust, the purchase
and
sale of any material portion of the Trust Estate and the execution by such
Officer on behalf of the Trust of any material agreements or
instruments.
IN
WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be
duly
executed by their respective officers hereunto duly authorized, as of the day
and year first above written.
| FINANCIAL ASSET SECURITIES CORP. as Depositor | ||
| |
|
|
| By: | /s/ Xxxx Xxxxx | |
|
Name: Xxxx Xxxxx |
||
| Title: Vice President | ||
|
WILMINGTON
TRUST COMPANY,
not
in its individual capacity but solely as
Owner
Trustee
|
||
| |
|
|
| By: | /s/ Xxxxxxxx X. Xxxxx | |
|
Name: Xxxxxxxx X. Xxxxx |
||
| Title: Vice President | ||
|
XXXXX
FARGO BANK, N.A.,
not
in its individual capacity but solely as Trust
Administrator
|
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx |
||
| Title: Vice President | ||
Acknowledged
and Agreed, solely
for
purposes of Sections 2.11, 7.01, 7.02, 7.03 and 10.13:
| AAMES INVESTMENT CORPORATION | |||
| By: /s/ Xxxx X. Xxx | |||
|
|
|||
|
Name:
Xxxx X. Xxx
Title:
Executive Vice President
|
EXHIBIT
A
FORM
OF
CERTIFICATES
THIS
OWNERSHIP CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY
STATE. THIS OWNERSHIP CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR
SOLD
OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO
(A) A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE ACT, IN A
TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT
TO
RULE 144A OR (B) AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH
(A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE ACT THAT IS ACQUIRING THE
OWNERSHIP CERTIFICATE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF
THE ACT. NO PERSON IS OBLIGATED TO REGISTER THIS OWNERSHIP CERTIFICATE UNDER
THE
ACT OR ANY STATE SECURITIES LAWS.
THIS
CERTIFICATE MAY NOT BE ACQUIRED BY A TRANSFEREE FOR, OR ON BEHALF OF, AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO
SECTION
406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”) OR ANY SUBSTANTIALLY SIMILAR LAW, OR ANY ENTITY DEEMED TO HOLD THE PLAN
ASSETS OF THE FOREGOING. EACH INVESTOR IN THIS CERTIFICATE WILL BE DEEMED
TO
MAKE THE FOREGOING REPRESENTATIONS AND WILL FURTHER BE DEEMED TO REPRESENT,
WARRANT AND COVENANT THAT IT WILL NOT SELL, PLEDGE OR OTHERWISE TRANSFER
THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
THIS
OWNERSHIP CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
THE
DEPOSITOR, THE MASTER SERVICER, THE SELLER, THE SERVICER, THE INDENTURE TRUSTEE,
THE OWNER TRUSTEE, THE TRUST ADMINISTRATOR OR ANY OF THEIR RESPECTIVE
AFFILIATES.
THIS
OWNERSHIP CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT AS DESCRIBED IN
THE
TRANSFER AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS OWNERSHIP CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN AFFIDAVIT FROM THE PROPOSED TRANSFEREE IN
WHICH
THE PROPOSED TRANSFEREE DECLARES THAT IT IS A REAL ESTATE INVESTMENT TRUST
(A
“REIT”) WITHIN THE MEANING OF SECTIONS 856 AND 857 OF THE CODE, A QUALIFIED REIT
SUBSIDIARY WITHIN THE MEANING OF SECTION 856(i) OF THE CODE OR AN ENTITY
THAT IS
BOTH (A) SOLELY OWNED BY A REIT OR QUALIFIED REIT SUBSIDIARY AND (B) DISREGARDED
AS AN ENTITY SEPARATE FROM ITS OWNER WITHIN THE MEANING OF SECTION
301.7701-2(C)(2) OF THE TREASURY REGULATIONS (A "DISREGARDED ENTITY"). MOREOVER,
ANY ATTEMPTED TRANSFER OF THIS OWNERSHIP CERTIFICATE TO A PERSON OTHER THAN
A
REIT, A QUALIFIED REIT SUBSIDIARY OR A DISREGARDED ENTITY SHALL BE
VOID
AB
INITIO
AND THE
PURPORTED TRANSFEREE SHALL ACQUIRE NO RIGHTS IN THIS OWNERSHIP
CERTIFICATE.
Certificate
No. 1 Percentage
Interest: 100%
First
Payment Date: May 2006
Evidencing
a fractional undivided equity interest in the Trust Estate, the property
of
which consists primarily of the Collateral in Aames Mortgage Investment Trust
2006-1 (the “Trust”), a Delaware statutory trust formed by Financial Asset
Securities Corp., a Delaware corporation, as depositor (the “Depositor”),
pursuant to the Agreement referred to below.
This
certifies that Aames Investment Acceptance Corporation is the registered
owner
of the Percentage Interest referred to above.
The
Trust
was created pursuant to a trust agreement dated May 1, 2006 (the “Agreement”),
between the Depositor and Wilmington Trust Company, as owner trustee (the
“Owner
Trustee,” which term includes any successor entity under the Agreement), as
amended and restated May 2, 2006, among the Depositor, the Owner Trustee
and
Xxxxx Fargo Bank, N.A., as trust administrator (in such capacity, the “Trust
Administrator”), a summary of certain of the pertinent provisions of which is
set forth hereinafter. This Ownership Certificate is issued under and is
subject
to the terms, provisions and conditions of the Agreement, to which Agreement
the
Holder of this Ownership Certificate by virtue of the acceptance hereof assents
and by which such Holder is bound, and the Transfer and Servicing Agreement
dated as of April 1, 2006 (as amended or supplemented from time to time,
the
“Transfer and Servicing Agreement”), by and among the Trust, the Depositor,
Xxxxx Fargo Bank, N.A., as Trust Administrator and master servicer (in such
capacity, the “Master Servicer”), Aames Funding Corporation, as servicer, Aames
Investment Corporation, as seller, and Deutsche Bank National Trust Company,
as
indenture trustee (the “Indenture Trustee”). Distributions on this Ownership
Certificate shall be made by the Trust Administrator, in its capacity of
Certificate Paying Agent under the Agreement and the Transfer and Servicing
Agreement.
This
Ownership Certificate is issued under the Agreement to which reference is
hereby
made for a statement of the respective rights thereunder of the Depositor,
the
Owner Trustee and the Holder of the Ownership Certificate and the terms upon
which the Ownership Certificate is executed and delivered. The Trust Estate
consists of the Collateral in the Aames Mortgage Investment Trust 2006-1.
To the
extent not otherwise defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Agreement or the Transfer and Servicing
Agreement. The rights of the Holder are subordinated to the rights of the
Noteholders, as set forth in the Indenture dated as of April 1, 2006, among
the
Trust, Trust Administrator and the Indenture Trustee.
There
will be distributed on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the next Business Day (each, a “Payment Date”), commencing
in May 2006, to the Holder at the close of business on the last Business
Day of
the month preceding the month of such Payment Date (the “Record Date”), the
amount to be distributed to the Holder on such Payment Date, all as described
in
the Transfer and Servicing Agreement.
The
Holder, by its acceptance of this Ownership Certificate, agrees that it will
look solely to the funds on deposit in the Collection Account that have been
released from the lien of the Indenture for payment hereunder and that neither
the Owner Trustee, the Trust Administrator or the Certificate Paying Agent
in
their individual capacities nor the Depositor is personally liable to the
Holder
for any amount payable under this Ownership Certificate or the Agreement
or,
except as expressly provided in the Agreement, subject to any liability under
the Agreement.
The
Holder acknowledges and agrees that its rights to receive distributions in
respect of this Ownership Certificate are subordinated to the rights of the
Noteholders as described in the Indenture.
The
Depositor and the Holder, by acceptance of an Ownership Certificate, agree
to
treat, and to take no action inconsistent with the treatment of, the Ownership
Certificate for federal, state and local income tax purposes as an equity
interest in the Trust.
The
Holder, by its acceptance of an Ownership Certificate, covenants and agrees
that
it will not at any time institute against the Depositor or the Trust, or
join in
any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar
law
in connection with any obligations relating to the Ownership Certificate,
the
Notes, the Agreement or any other of the Operative Agreements.
Distributions
on this Ownership Certificate will be made as provided in the Agreement by
the
Certificate Paying Agent by wire transfer or check mailed to the Holder without
the presentation or surrender of this Ownership Certificate or the making
of any
notation hereon. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Ownership Certificate
will be made after due notice by the Certificate Paying Agent of the pendency
of
such distribution and only upon presentation and surrender of this Ownership
Certificate at the office or agency maintained by the Certificate Registrar
for
that purpose.
Reference
is hereby made to the further provisions of this Ownership Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
Unless
the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual
signature, this Ownership Certificate shall not entitle the Holder hereof
to any
benefit under the Agreement or be valid for any purpose.
THIS
OWNERSHIP CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS,
AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
IN
WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Ownership Certificate to be duly
executed.
|
|
By:
WILMINGTON TRUST COMPANY,
not in its individual
capacity
but solely as Owner Trustee
|
By:_____________________________________
Authorized
Signatory
Dated:
____________________
CERTIFICATE
OF AUTHENTICATION
This
is
the Ownership Certificate referred to in the within-mentioned Trust
Agreement.
|
XXXXX
FARGO BANK, N.A.,
not in its individual capacity
but
solely as Trust Administrator
|
By:___________________________________
Authorized
Signatory
Dated:
_____________________
AAMES
MORTGAGE INVESTMENT TRUST 2006-1, OWNERSHIP CERTIFICATE
The
Ownership Certificate does not represent an obligation of, or an interest
in,
the Depositor, the Master Servicer, the Seller, the Servicer, the Indenture
Trustee, the Owner Trustee, the Trust Administrator, the Bank or any Affiliates
of any of them and no recourse may be had against any such parties or their
assets. In addition, this Ownership Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment
to
certain collections and recoveries with respect to the Collateral, all as
more
specifically set forth herein. A copy of the Agreement may be examined by
any
Certificateholder upon written request during normal business hours at the
principal office of the Depositor and at such other places, if any, designated
by the Depositor.
The
Agreement permits the amendment thereof as specified below, provided that
any
amendment be accompanied by an Opinion of Counsel to the effect that such
amendment complies with the provisions of the Agreement and would not cause
the
Trust to be subject to an entity level tax. If the purpose of the amendment
is
to correct any mistake, eliminate any inconsistency, cure any ambiguity or
deal
with any matter not covered, it shall not be necessary to obtain the consent
of
any Noteholder. If the purpose of the amendment is to add or eliminate or
change
any provision of the Agreement, other than as specified in the preceding
sentence, the amendment shall require the consent of the Holder and the consent
of Noteholders evidencing more than 662/3%
of the
Outstanding Balance of the Notes; provided,
however,
that no
such amendment shall, as evidenced by an Opinion of Counsel, adversely affect
the tax status of the Trust; and provided,
further,
that no
such amendment shall (a) increase or reduce in any manner the amount of,
or
accelerate or delay the timing of, collections of payments on the Collateral
or
distributions that shall be required to be made for the benefit of the
Noteholders or the Holder or (b) reduce the aforesaid percentage of the
Outstanding Balance of the Notes required to consent to or to waive the
requirement for the Holder to consent to any such amendment, in either case
of
clause (a) or (b) without the consent of the holders of all the outstanding
Notes and the Holder.
As
provided in the Agreement and subject to certain limitations therein set
forth,
including the limitations set forth in Section 3.03 thereof, the transfer
of
this Ownership Certificate is registerable in the Certificate Register upon
surrender of this Ownership Certificate for registration of transfer at the
offices or agencies of the Certificate Registrar, accompanied by a written
instrument of transfer in form satisfactory to the Certificate Registrar
duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon a new Ownership Certificate will be issued to the
designated transferee. The initial Certificate Registrar appointed under
the
Agreement is the Trust Administrator.
Except
as
provided in the Agreement, the Ownership Certificate is issuable only in
a
minimum Percentage Interest of 100%. No service charge will be made for any
such
registration of transfer or exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith or any expense incurred
thereby.
The
Owner
Trustee, the Certificate Paying Agent, the Trust Administrator, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent,
the
Trust Administrator or the Certificate Registrar may treat the Holder as
the
owner hereof for all purposes, and none of the Owner Trustee, the Certificate
Paying Agent, the Trust Administrator, the Certificate Registrar or any such
agent shall be affected by any notice to the contrary.
The
obligations and responsibilities created by the Agreement and the Trust created
thereby shall terminate upon the payment to Certificateholders of all amounts
required to be paid to them pursuant to the Trust Agreement and the Transfer
and
Servicing Agreement and the disposition of all property held as part of the
Trust Estate.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s) and assign(s) and transfer(s)
unto
(Please
print or type name and address, including postal zip code, of assignee and
social security number or employer identification number)
____________________________________________________________________________________________________________________________________________
the
within Certificate stating in the names of the undersigned in the Securities
Register and does hereby irrevocably constitute and appoint
to
transfer such Certificate in such Securities Register of the Trust.
I
[we]
further direct the Securities Registrar to issue a new Certificate of the
same
Class of like principal to the above-named assignee and deliver such Certificate
to the following address:
Dated:____________________
__________________________________________
Signature
by or on behalf of Assignor
__________________________
Authorized
Officer __________________________________________
Signature
Guaranteed
__________________________
__________________________________________
|
Name
of Institution
|
NOTICE:
The signature(s) of this assignment must correspond with the name(s)
on
the face of this Certificate without alteration or any change whatsoever.
The signature must be guaranteed by a participant in the Securities
Transfer Agents Medallion Program, the New York Stock Exchange
Medallion
Signature Program or the Stock Exchanges Medallion Program. Notarized
or
witnessed signatures are not acceptable as guaranteed
signatures.
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for the information of the Securities
Registrar. Distributions shall be made by wire transfer in immediately available
funds to
for
the
account of
_____________________________________________________________________________________________________________________________
account
number __________________ or, if mailed by check, to
_________________________________________________________________________________________
Applicable
reports and statements should be mailed to
_________________________________________________________________________________________________
This
information is provided by
______________________________________________________________________________
the
assignee named above, or ____________________________________ as its agent.
EXHIBIT
B
[RESERVED]
EXHIBIT
C
FORM
OF
CERTIFICATE OF TRUST OF
THIS
Certificate of Trust of Aames
Mortgage Investment Trust 2006-1
(the
“Trust”), is being duly executed and filed by the undersigned, as trustee, to
form a statutory trust under the Delaware Statutory Trust Act (12 DEL. C.,
Sections 3801 et seq.) (the “Act”).
1. NAME.
The
name of the statutory trust formed hereby is “AAMES MORTGAGE INVESTMENT TRUST
2006-1.”
2. DELAWARE
TRUSTEE. The name and business address of the trustee of the Trust in the State
of Delaware are Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000-0000, Attention: Corporate Trust Administration.
3. EFFECTIVE
DATE. This Certificate of Trust shall be effective upon filing.
IN
WITNESS WHEREOF, the undersigned, being the owner trustee of the Trust, has
executed this Certificate of Trust in accordance with Section 3811(a) of the
Act.
|
WILMINGTON
TRUST COMPANY,
as
Owner Trustee
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| By: | ||
|
Name: |
||
| Title: | ||
EXHIBIT
D-1
FORM
OF
RULE 144A INVESTMENT LETTER
__________________
Date
XXXXX
FARGO BANK, N.A.,
as
Certificate Registrar
0xx
Xxxxxx
xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
Corporate Trust Department
Re:
Aames
Mortgage Investment Trust 2006-1
Ownership
Certificate
Ladies
and Gentlemen:
In
connection with our acquisition of the Aames
Mortgage Investment Trust 2006-1
Ownership Certificate (the “Certificate”), we certify that (a) we understand
that the Certificate has not been registered under the Securities Act of 1933,
as amended (the “Act”), or any state securities laws and is being transferred to
us in a transaction that is exempt from the registration requirements of the
Act
and any such laws, (b) we have such knowledge and experience in financial
and business matters that we are capable of evaluating the merits and risks
of
investment in the Certificate, (c) we have had the opportunity to ask questions
of and receive answers from Financial Asset Securities Corp. (the “Depositor”)
concerning the purchase of the Certificate and all matters relating thereto
or
any additional information deemed necessary to our decision to purchase the
Certificate, (d) we have not, nor has anyone acting on our behalf, offered,
transferred, pledged, sold or otherwise disposed of the Certificate or any
interest in the Certificate, or solicited any offer to buy, transfer, pledge
or
otherwise dispose of the Certificate or any interest in the Certificate from
any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action that would
constitute a distribution of the Certificate under the Act or that would render
the disposition of the Certificate a violation of Section 5 of the Act or any
state securities laws or require registration pursuant thereto, and we will
not
act, or authorize any person to act, in such manner with respect to the
Certificate and (e) we are a “qualified institutional buyer” as that term is
defined in Rule 144A under the Act (“Rule 144A”). We are aware that the sale to
us is being made in reliance on Rule 144A.
We
are
acquiring the Certificate for our own account or for resale pursuant to Rule
144A and understand that such Certificate may be resold, pledged or transferred
only (1) to a person reasonably believed to be a qualified institutional buyer
that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A or (2) pursuant to another exemption
from
registration under the Act.
In
addition, we hereby certify that we are not an employee benefit plan or other
retirement arrangement subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or to Section 4975 of the Internal
Revenue Code of 1986, as amended (or to any other substantially similar law)
or
any person acting on behalf of or using the assets of any such
plan.
We
hereby
acknowledge that under the terms of the Amended and Restated Trust Agreement
among Financial Asset Securities Corp. as Depositor, Wilmington Trust Company,
as Owner Trustee, and Xxxxx Fargo Bank, N.A., as Trust Administrator, dated
May
2, 2006, no transfer of the Certificate shall be permitted to be made to any
person unless the Certificate Registrar has received a certificate from such
transferee in the form hereof.
We
hereby
indemnify the Depositor, Certificate Registrar and the Owner Trustee against
any
liability that may result to either of them if our transfer or other disposition
of the Certificate (or any interest therein) is not exempt from the registration
requirements of the Act and any applicable state securities laws or is not
made
in accordance with such federal and state laws.
| Very truly yours, | ||
|
[Name
of Transferee]
|
||
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|
|
| By: | ||
|
Name: |
||
| Title: | ||
EXHIBIT
D-2
FORM
OF
NON-RULE 144A INVESTMENT LETTER
__________________
Date
XXXXX
FARGO BANK, N.A.,
as
Certificate Registrar
0xx
Xxxxxx
xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
Corporate Trust Department
Re:
Aames
Mortgage Investment Trust 2006-1
Ownership
Certificate
Ladies
and Gentlemen:
In
connection with our acquisition of the Aames
Mortgage Investment Trust 2006-1
Ownership Certificate (the “Certificate”) we certify that (a) we understand that
the Certificate has not been registered under the Securities Act of 1933, as
amended (the “Act”), or any state securities laws and is being transferred to us
in a transaction that is exempt from the registration requirements of the Act
and any such laws, (b) we are an “accredited investor,” as defined in Rule
501(a)(1), (2), (3) or (7) under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investment in the Certificate, (c) we have had the opportunity
to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificate and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificate, (d)
we
are acquiring the Certificate for investment for our own account and not with
a
view to any distribution of such Certificate (but without prejudice to our
right
at all times to sell or otherwise dispose of the Certificate in accordance
with
clause (f) below), (e) we have not offered or sold any Certificate to, or
solicited offers to buy any Certificate from, any person, or otherwise
approached or negotiated with any person with respect thereto, or taken any
other action that would result in a violation of Section 5 of the Act or any
state securities laws and (f) we will not sell, transfer or otherwise dispose
of
any Certificate unless (1) such sale, transfer or other disposition is made
pursuant to an effective registration statement under the Act and in compliance
with any relevant state securities laws or is exempt from such registration
requirements and, if requested, we will at our expense provide an opinion of
counsel satisfactory to the addressees of this certificate that such sale,
transfer or other disposition may be made pursuant to an exemption from the
Act,
(2) the purchaser or transferee of such Certificate has executed and delivered
to you a certificate to substantially the same effect as this certificate and
(3) the purchaser or transferee has otherwise complied with any conditions
for
transfer set forth in the Amended and Restated Trust Agreement dated May 2,
2006, among Financial Asset Securities Corp. as Depositor, Wilmington Trust
Company, as Owner Trustee and Xxxxx Fargo Bank, N.A, as Trust Administrator
(the
“Trust Agreement”).
In
addition, we hereby certify that we are not an employee benefit plan or other
retirement arrangement subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or to Section 4975 of the Internal
Revenue Code of 1986, as amended (or to any other substantially similar law)
or
any person acting on behalf of or using the assets of any such
plan.
We
hereby
acknowledge that under the terms of the Trust Agreement, no transfer of the
Certificate shall be permitted to be made to any person unless the Certificate
Registrar has received a certificate from such transferee in the form
hereof.
We
hereby
indemnify the Owner Trustee, the Depositor and the Certificate Registrar against
any liability that may result to either of them if our transfer or other
disposition of the Certificate (or any interest therein) is not exempt from
the
registration requirements of the Act and any applicable state securities laws
or
is not made in accordance with such federal and state laws.
| Very truly yours, | ||
|
[Name
of Transferee]
|
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| By: | ||
|
Name: |
||
| Title: | ||
EXHIBIT
E
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Attention:
Aames 2006-1
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Aames 2006-1
Re:
Aames
Mortgage Investment Trust 2006-1
Ladies
and Gentlemen:
This
representation and warranty is delivered pursuant to Section 3.03 of the Amended
and Restated Trust Agreement dated May 2, 2006 (the “Agreement”), among
Financial Asset Securities Corp. as depositor (the “Depositor”), Wilmington
Trust Company, as owner trustee (the “Owner Trustee”), and Xxxxx Fargo Bank,
N.A., as trust administrator (the “Trust Administrator”), in connection with the
transfer by Aames
Mortgage Investment Trust 2006-1
(the
“Trust”) to the undersigned as beneficial owner (the “Beneficial Owner”) of a
100% Percentage Interest in the Ownership Certificate. Capitalized terms used
but not defined in this document have the meanings ascribed to them in the
Agreement.
The
Beneficial Owner hereby certifies that it has received a copy of the Agreement
and that it understands the restrictions on transferability of the Ownership
Certificate and the indemnity provisions set forth in Section 3.03 of the
Agreement. In connection with the transfer of the Ownership Certificate to
the
Beneficial Owner, the Beneficial Owner represents and warrants
that:
(1) The
Beneficial Owner either (i) qualifies for taxation as a real estate investment
trust (a “REIT”) within the meaning of Sections 856 and 857 of the Internal
Revenue Code of 1986, as amended (the “Code”), (ii) is a qualified REIT
subsidiary within the meaning of Section 856(i) of the Code or (iii) is an
entity (a “Disregarded Entity”) that is both (A) solely owned by an entity
described in (i) or (ii) and (B) is disregarded as an entity separate from
its
owner within the meaning of Section 301.7701-2(c)(2) of the Treasury
Regulations.
(2) The
Beneficial Owner hereby agrees to be subject to the indemnification provisions
set out in Section 3.03 of the Agreement.
(3) The
Beneficial Owner hereby agrees to be subject to the provisions governing events
of default set out in the Indenture among the Trust, as issuer, Xxxxx Fargo
Bank, N.A., as Trust Administrator, and Deutsche Bank National Trust Company,
as
indenture trustee, dated as of May 2, 2006.
(4) The
Beneficial Owner hereby agrees to notify the Trust within sixty (60) days of
the
date on which the Beneficial Owner discovers that it has failed to qualify
as a
REIT, a qualified REIT subsidiary or Disregarded Entity at any time at which
the
Beneficial Owner owns the Ownership Certificate.
(5) The
Beneficial Owner is not, and on May 2, 2006, will not be, an employee benefit
plan or other retirement arrangement subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of
the Code or any substantially similar applicable law (collectively, a “Plan”) or
a person acting on behalf of or investing the assets of any such Plan to acquire
the Ownership Certificate.
(6) The
Beneficial Owner hereby acknowledges that under the terms of the Agreement,
no
transfer of the Ownership Certificate shall be permitted to be made to any
person unless the Certificate Registrar has received a certificate from such
transferee to the effect that such transferee is not a Plan and is not using
the
assets of any Plan to acquire the Ownership Certificate.
(7) The
Beneficial Owner will not transfer the Ownership Certificate to any person
or
entity (i) as to which the Purchaser has reason to believe does not satisfy
the
requirements set forth in this affidavit, and (ii) without obtaining from the
prospective Purchaser an affidavit substantially in this form and providing
to
the Certificate Registrar a written statement substantially in the form of
Exhibit F to the Agreement.
(8) No
Beneficial Note will be transferred to a party unrelated to the Beneficial
Owner
of the Ownership Certificate unless the Retained Note will be treated as
indebtedness for U.S. federal income tax purposes immediately after the
transfer.
(9) The
Holder of the Ownership Certificate will not take any action or inaction that
would cause the Trust to be subject to any United States federal income
taxation.
[SIGNATURE
PAGE FOLLOWS]
| Very truly yours, | ||
|
AAMES
INVESTMENT ACCEPTANCE CORPORATION
|
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|
|
| By: | ||
|
Name: |
||
| Title: | ||
EXHIBIT
F
FORM
OF
REPRESENTATION AND WARRANTY REGARDING TRANSFEREE’S STATUS AS A REIT OR QUALIFIED
REIT SUBSIDIARY
This
representation and warranty is delivered pursuant to Section 3.03 of the Amended
and Restated Trust Agreement dated May 2, 2006 (the “Agreement”), among
Financial Asset Securities Corp. as depositor (the “Depositor”), Wilmington
Trust Company, as owner trustee (the “Owner Trustee”), and Xxxxx Fargo Bank,
N.A., as trust administrator (the “Trust Administrator”), in connection with the
transfer by [_____________________] [transferor] to the undersigned as
beneficial owner (the “Beneficial Owner”) of a 100% Percentage Interest in the
Ownership Certificate. Capitalized terms used but not defined in this document
have the meanings ascribed to them in the Agreement.
The
Beneficial Owner hereby certifies that it has received a copy of the Agreement
and that it understands the restrictions on transferability of the Ownership
Certificate set forth in Section 3.03 of the Agreement and the indemnity
provisions set forth in Section 7.02 of the Agreement. In connection with the
transfer of the Ownership Certificate to the Beneficial Owner, the Beneficial
Owner represents and warrants that:
(1) The
Beneficial Owner either (i) qualifies for taxation as a real estate investment
trust (a “REIT”) within the meaning of Sections 856 and 857 of the Internal
Revenue Code of 1986, as amended (the “Code”), (ii) is a qualified REIT
subsidiary within the meaning of Section 856(i) of the Code (a “Qualified REIT
Subsidiary”) or (iii) is an entity (a “Disregarded Entity”) that is both (A)
solely owned by an entity described in (i) or (ii) and (B) is disregarded as
an
entity separate from its owner within the meaning of Section 301.7701-2(c)(2)
of
the Treasury Regulations.
(2) The
Beneficial Owner hereby agrees to be subject to the indemnification provisions
set out in Section 7.02 of the Agreement, and hereby warrants that the
Beneficial Owner shall indemnify the Trust for any income tax imposed upon
the
Trust due to the Beneficial Owner’s failure to qualify as a REIT, as a Qualified
REIT Subsidiary or as a Disregarded Entity at any time at which such Beneficial
Owner owns the Ownership Certificate.
(3) The
Beneficial Owner hereby agrees to be subject to the provisions governing events
of default set out in the Indenture among Aames
Mortgage Investment Trust 2006-1
(the
“Trust”), as issuer, Xxxxx Fargo Bank, N.A., as trust administrator, and
Deutsche Bank National Trust Company, as indenture trustee, dated as of May
2,
2006.
(4) The
Beneficial Owner hereby agrees to notify the Trust within sixty (60) days of the
date on which the Beneficial Owner discovers that it has failed to qualify
as a
REIT, a Qualified REIT Subsidiary or Disregarded Entity at any time at which
the
Beneficial Owner owns the Ownership Certificate.
(5) The
Beneficial Owner is not, and on [_________] [date of transfer] will not be,
an
employee benefit plan or other retirement arrangement subject to Section 406
of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or
Section 4975 of the Code or any substantially similar applicable law
(collectively, a “Plan”) or a person acting on behalf of or investing the assets
of any such Plan to acquire the Ownership Certificate.
(6) The
Beneficial Owner hereby acknowledges that under the terms of the Agreement,
no
transfer of the Ownership Certificate shall be permitted to be made to any
person unless the Certificate Registrar has received a certificate from such
transferee to the effect that such transferee (i) is not a Plan and is not
using
the assets of any Plan to acquire the Ownership Certificate and (ii) is a REIT,
a Qualified REIT Subsidiary or Disregarded Entity.
(7) The
Beneficial Owner will not transfer the Ownership Certificate to any person
or
entity (i) as to which the Purchaser has reason to believe does not satisfy
the
requirements set forth in this affidavit, and (ii) without obtaining from the
prospective Purchaser an affidavit substantially in this form and providing
to
the Certificate Registrar a written statement substantially in the form of
Exhibit F to the Agreement.
(8) The
Holder of the Ownership Certificate will not take any action or inaction that
would cause the Trust to be subject to any United States federal income
taxation.
|
[NAME
OF BENEFICIAL OWNER],
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| By: | ||
|
Name: |
||
| Title: | ||
