BEAR XXXXXXX ASSET BACKED SECURITIES I LLC,
AS DEPOSITOR
WILMINGTON TRUST COMPANY,
AS OWNER TRUSTEE
AND
XXXXX FARGO BANK, N.A.,
AS SECURITIES ADMINISTRATOR
_________________________________________________
AMENDED AND RESTATED
TRUST AGREEMENT
DATED AS OF JULY 12, 2007
_________________________________________________
Trust Certificates,
Series 2007-1
Table of Contents
Section Page
ARTICLE I
Definitions
Section 1.01. Definitions 2
Section 1.02. Other Definitional Provisions 2
ARTICLE II
Organization
Section 2.01. Name 3
Section 2.02. Office 3
Section 2.03. Purposes and Powers 3
Section 2.04. Appointment of Owner Trustee 3
Section 2.05. Initial Capital Contribution of Owner Trust Estate 4
Section 2.06. Declaration of Trust 4
Section 2.07. Reserved 4
Section 2.08. Title to Trust Property 4
Section 2.09. Situs of Trust 4
Section 2.10. Representations and Warranties of the Depositor 5
Section 2.11. [Reserved] 6
Section 2.12. Investment Company 6
ARTICLE III
Conveyance of the Mortgage Loans; Certificates
Section 3.01. Conveyance of the Mortgage Loans 7
Section 3.02. Initial Ownership 7
Section 3.03. The Certificates 7
Section 3.04. Authentication of Certificates 7
Section 3.05. Registration of and Limitations on Transfer and Exchange of Certificates 8
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates 10
Section 3.07. Persons Deemed Certificateholders 11
Section 3.08. Access to List of Certificateholders' Names and Addresses 11
Section 3.09. Maintenance of Office or Agency 11
Section 3.10. Securities Administrator 11
ARTICLE IV
Authority and Duties of Owner Trustee
Section 4.01. General Authority 13
Section 4.02. General Duties 13
Section 4.03. Action upon Instruction 13
Section 4.04. No Duties Except as Specified under Specified Documents or in Instructions 14
Section 4.05. Restrictions 14
Section 4.06. Prior Notice to Certificateholders with Respect to Certain Matters 14
Section 4.07. Action by Certificateholders with Respect to Certain Matters 15
Section 4.08. Action by Certificateholders with Respect to Bankruptcy 15
Section 4.09. Restrictions on Certificateholders' Power 15
Section 4.10. Majority Control 16
ARTICLE V
Application of Trust Funds
Section 5.01. Distributions 17
Section 5.02. Method of Payment 17
Section 5.03. Tax Returns 18
Section 5.04. Statements to Certificateholders 18
ARTICLE VI
Concerning the Owner Trustee
Section 6.01. Acceptance of Trusts and Duties 19
Section 6.02. Furnishing of Documents 20
Section 6.03. Representations and Warranties 20
Section 6.04. Reliance; Advice of Counsel 21
Section 6.05. Not Acting in Individual Capacity 21
Section 6.06. Owner Trustee Not Liable for Certificates or Related Documents 22
Section 6.07. Owner Trustee May Own Certificates and Notes 22
Section 6.08. Payments from Owner Trust Estate 22
Section 6.09. Doing Business in Other Jurisdictions 22
Section 6.10. Liability of Securities Administrator 22
ARTICLE VII
Compensation of Owner Trustee
Section 7.01. Owner Trustee Fees and Expenses 24
Section 7.02. Indemnification 24
ARTICLE VIII
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement 26
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee 28
Section 9.02. Replacement of Owner Trustee 28
Section 9.03. Successor Owner Trustee 29
Section 9.04. Merger or Consolidation of Owner Trustee 29
Section 9.05. Appointment of Co-Trustee or Separate Trustee 29
ARTICLE X
Miscellaneous
Section 10.01. Amendments 31
Section 10.02. No Legal Title to Owner Trust Estate 33
Section 10.03. Limitations on Rights of Others 33
Section 10.04. Notices 33
Section 10.05. Severability 33
Section 10.06. Separate Counterparts 34
Section 10.07. Successors and Assigns 34
Section 10.08. No Petition 34
Section 10.09. No Recourse 34
Section 10.10. Headings 34
Section 10.11. GOVERNING LAW 34
Section 10.12. Integration 34
Section 10.13. Obligations 35
EXHIBITS
Exhibit A - Form of Certificate A-1
Exhibit B - Certificate of Trust of Newcastle Mortgage Securities Trust 2007-1 B-1
Exhibit C - Form of Rule 144A Investment Representation C-1
Exhibit D - Form of Certificate of Non-Foreign Status D-1
Exhibit E - Form of Investment Letter E-1
Exhibit F - Form of Transferor Certificate F-1
Exhibit G - Form of ERISA Letter G-1
Exhibit H - Form of Transferee Certificate H-1
This Amended and Restated Trust Agreement, dated as of July 12, 2007 (as amended from time to time, this "Trust Agreement"),
among Bear Xxxxxxx Asset Backed Securities I LLC, a Delaware limited liability company, as depositor (the "Depositor"), Wilmington
Trust Company, a Delaware banking corporation, as owner trustee (the "Owner Trustee" and in its individual capacity, the "Bank"), and
Xxxxx Fargo Bank, N.A., not individually but acting solely as Securities Administrator.
WITNESSETH THAT:
WHEREAS, the Depositor, the Sponsor and the Owner Trustee have previously entered into the Trust Agreement dated as of July
11, 2007 (the "Original Trust Agreement").
WHEREAS, the parties hereto desire to amend the terms of and restate the Original Trust Agreement.
In consideration of the mutual agreements herein contained, the Depositor, the Owner Trustee and the Securities
Administrator agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Trust Agreement, except as otherwise expressly provided herein or
unless the context otherwise requires, capitalized terms not otherwise defined herein shall have the meanings assigned to such terms
in Appendix A to the Indenture, dated July 12, 2007, among Newcastle Mortgage Securities Trust 2007-1, as Issuing Entity, The Bank of
New York, as Indenture Trustee and Xxxxx Fargo Bank, N.A., as Securities Administrator, which is incorporated by reference herein.
All other capitalized terms used herein shall have the meanings specified herein.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Trust Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein.
(b) As used in this Trust Agreement and in any certificate or other document made or delivered pursuant hereto or
thereto, accounting terms not defined in this Trust Agreement or in any such certificate or other document, and accounting terms
partly defined in this Trust Agreement or in any such certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting principles. To the extent that the definitions of accounting
terms in this Trust Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this Trust Agreement or in any such certificate or other
document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar import when used in this Trust Agreement shall refer
to this Trust Agreement as a whole and not to any particular provision of this Trust Agreement; Article, Section and Exhibit
references contained in this Trust Agreement are references to Articles, Sections and Exhibits in or to this Trust Agreement unless
otherwise specified; and the term "including" shall mean "including without limitation".
(d) The definitions contained in this Trust Agreement are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in
connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes
(in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein; references to
a Person are also to its permitted successors and assigns.
ARTICLE II
ORGANIZATION
Section 2.01. Name. The trust created hereby (the "Trust") shall be known as "Newcastle Mortgage Securities Trust
2007-1", in which name the Owner Trustee may conduct the business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
Section 2.02. Office. The office of the Trust shall be in care of the Owner Trustee at the Corporate Trust Office or at
such other address in Delaware as the Owner Trustee may designate by written notice to the Certificateholders and the Depositor.
Section 2.03. Purposes and Powers. The purpose of the Trust is to engage in the following activities and the Trust shall
have the power and authority:
(i) to issue the Notes pursuant to the Indenture and the Certificates pursuant to this Trust Agreement and to
sell the Notes and the Certificates;
(ii) to pay the organizational, start-up and transactional expenses of the Trust;
(iii) to assign, grant, transfer, pledge and convey the Mortgage Loans pursuant to the Indenture and to hold,
manage and distribute to the Certificateholder pursuant to Section 5.01 herein, any portion of the Mortgage Loans released
from the Lien of, and remitted to the Trust pursuant to the Indenture;
(iv) to enter into and perform its obligations under the Basic Documents to which it is to be a party;
(v) reserved;
(vi) 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
(vii) subject to compliance with the Basic Documents, to engage in such other activities as may be required in
connection with conservation of the Owner Trust Estate and the making of distributions to the Certificateholder and the
Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust shall not engage in any activity other than
in connection with the foregoing or other than as required or authorized by the terms of this Trust Agreement or the Basic Documents.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby appoints the Owner Trustee as trustee of the Trust
effective as of the date hereof, to have all the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Owner Trust Estate. The Depositor hereby sells, assigns, transfers,
conveys and sets over to the Trust, as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges receipt in trust from
the Depositor, as of the date hereof, of the foregoing contribution, which shall constitute the initial corpus of the Trust and shall
be deposited in the Certificate Distribution Account. The Owner Trustee also acknowledges on behalf of the Trust the receipt in
trust pursuant to the Sale and Servicing Agreement the Mortgage Loans, the rights with respect to the Interest Rate Swap Agreement
and the Interest Rate Cap Agreement and the rights with respect to the representations and warranties made by the Originator under
the Purchase Agreement which shall constitute the Owner Trust Estate.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares that it shall hold the Owner Trust Estate in trust
upon and subject to the conditions set forth herein for the use and benefit of the Certificateholders, subject to the obligations of
the Trust under the Basic Documents. It is the intention of the parties hereto that the Trust constitute a "statutory trust" under
the Statutory Trust Statute and that this Trust Agreement constitute the governing instrument of such statutory trust. It is the
intention of the parties hereto that, for federal and state income and state and local franchise tax purposes, the Trust (A) shall
not be treated as (i) an association subject separately to taxation as a corporation or (ii) a "publicly traded partnership" as
defined in Treasury Regulation Section 1.7704-1, (B) shall, at all times after the Closing Date, be disregarded as a separate entity,
and (C) that each Class of Notes shall be debt, and the provisions of this Agreement shall be interpreted to further this intention.
It is the intention of the parties hereto that, for federal, state and local tax purposes, the Depositor shall at no time be treated
as an owner of the Mortgage Loans or as the issuer of or obligor on indebtedness secured by the Mortgage Loans and evidenced by the
Notes, and the parties hereto mutually covenant to take all pertinent tax reporting positions consistent with that intent. Except as
otherwise provided in this Trust Agreement, the rights of the Certificateholder will be those of equity owners of the Trust.
Effective as of the date hereof, the Owner Trustee shall have all rights, powers and duties set forth herein and in the Statutory
Trust Statute with respect to accomplishing the purposes of the Trust.
Section 2.07. Reserved.
Section 2.08. Title to Trust Property. Except with respect to the Mortgage Loans, which will be assigned of record to
the Indenture Trustee pursuant to the Indenture, legal title to the Owner Trust Estate shall be vested at all times in the Trust as a
separate legal entity except where applicable law in any jurisdiction requires title to any part of the Owner Trust Estate to be
vested in a trustee or trustees, in which case title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
Section 2.09. Situs of Trust. The Trust will be located and administered in Delaware, Maryland, Minnesota or New York.
All bank accounts maintained by the Trust shall be located in Delaware, Maryland, Minnesota or New York. The Trust shall not have any
employees in any state other than Delaware; provided, however, that nothing herein shall restrict or prohibit the Owner Trustee from
having employees within or without the State of Delaware or taking actions outside the State of Delaware in order to comply with
Section 2.03. Payments will be received by the Trust only in Delaware, Maryland, Minnesota or New York, and payments will be made by
the Trust only from Delaware, Maryland, Minnesota or New York. The only office of the Trust maintained by the Owner Trustee will be
at the Corporate Trust Office in Delaware.
Section 2.10. Representations and Warranties of the Depositor. The Depositor hereby represents and warrants to the Owner
Trustee that as of the date hereof:
(i) The Depositor is duly organized and validly existing as a limited liability company in good standing under
the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted.
(ii) The Depositor is duly qualified to do business as a foreign limited liability company in good standing and
has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of its property or
the conduct of its business shall require such qualifications and in which the failure to so qualify would have a material
adverse effect on the business, properties, assets or condition (financial or other) of the Depositor.
(iii) The Depositor has the power and authority to execute and deliver this Trust Agreement and to carry out its
terms; the Depositor has full power and authority to convey and assign the property to be conveyed and assigned by it to and
deposited by it with the Trust as part of the Owner Trust Estate and the Depositor has duly authorized such conveyance and
assignment and deposit to the Trust by all necessary corporate action; and the execution, delivery and performance of this
Trust Agreement have been duly authorized by the Depositor by all necessary corporate action.
(iv) The consummation by the Depositor of the transactions contemplated by this Trust Agreement and the
fulfillment by the Depositor of the terms hereof do not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a default under, the certificate of formation or
operating agreement of the Depositor, or any indenture, agreement or other instrument to which the Depositor is a party or
by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement or other instrument (other than pursuant to the Basic Documents); nor violate any law or,
to the best of the Depositor's knowledge, any order, rule or regulation applicable to the Depositor of any court or of any
federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the
Depositor or its properties.
(v) The Depositor immediately prior to the conveyance of the Mortgage Loans to the Trust, owned and had good
and marketable title to the Mortgage Loans free and clear of any Lien, claim or encumbrance of any Person.
Section 2.11. [Reserved].
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.
ARTICLE III
CONVEYANCE OF THE MORTGAGE LOANS;
CERTIFICATES
Section 3.01. Conveyance of the Mortgage Loans. Pursuant to the Sale and Servicing Agreement entered into simultaneously
with this Trust Agreement, the Depositor intends to sell, transfer and assign to the Trust, on behalf of the Holders of the Notes and
the Certificates, without recourse, all its right, title and interest in and to the Mortgage Loans, including all interest and
principal received on or with respect to the Mortgage Loans.
The conveyance of the Mortgage Loans by the Depositor to the Trust thereunder is intended to facilitate the simultaneous
issuance of the Notes under the Indenture and issuance of the Certificates hereunder to the Depositor and the transfer thereof to the
Seller or its designee as Holder, and the Seller or its designee has no present intention of selling any of the Certificates.
Accordingly, at the time of the transaction set forth herein, the Seller will retain without interruption, through the ownership of
the Certificates, the economic benefits associated with ownership of the Mortgage Loans as well as the economic burdens associated
with such ownership, subject to the lien of the Indenture and subject to this Trust Agreement.
Section 3.02. Initial Ownership. Upon the formation of the Trust and until the sale of the Certificates by the Depositor
to the Seller, the Depositor shall be the sole beneficial owner.
Section 3.03. The Certificates. The Certificates shall be issued in the form of three Certificates attached hereto as
Exhibit A, each representing a 100% Certificate Percentage Interest in such class. At initial issuance, the Certificates shall be
registered in the name of NIC OTC LLC. 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 3.04. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefit of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of such Certificates. A Person shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a Certificateholder hereunder upon such Person's acceptance of a
Certificate duly registered in such Person's name, pursuant to Section 3.05.
A transferee of a Certificate shall become a Certificateholder and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such transferee's acceptance of a Certificate duly registered in such transferee's
name pursuant to and upon satisfaction of the conditions set forth in Section 3.05.
Section 3.04. Authentication of Certificates. The Securities Administrator shall cause all Certificates issued hereunder
to be executed and authenticated on behalf of the Trust, authenticated and delivered to or upon the written order of the Seller,
signed by its chairman of the board, its president or any vice president, without further corporate action by the Seller, in
authorized denominations. No Certificate shall entitle its holder to any benefit under this Trust Agreement or be valid for any
purpose unless there shall appear on such Certificate a certificate of authentication substantially in the form set forth in Exhibit
A, executed by the Securities Administrator or by an authenticating agent of the Issuing Entity 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 3.05. Registration of and Limitations on Transfer and Exchange of Certificates. The Securities Administrator
shall keep or cause to be kept, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the
Securities Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein
provided. If the Securities Administrator resigns or is removed, the Sponsor shall appoint a successor securities administrator.
Subject to satisfaction of the conditions set forth below with respect to the Certificate, upon surrender for registration
of transfer of any Certificate at the office or agency maintained pursuant to Section 3.09, the Owner Trustee and the Securities
Administrator shall execute, authenticate and deliver in the name of the designated transferee or transferees, one or more new
Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Securities Administrator.
At the option of a Holder, Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate
amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.09.
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 Securities Administrator duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Securities Administrator in accordance with its customary practice.
No service charge shall be made for any registration of transfer or exchange of Certificates, but the Owner Trustee or the
Securities Administrator 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 Certificates.
No Certificates may be transferred (or re-transferred) unless 100% of all Certificates are transferred (or re-transferred)
to one Person for federal income tax purposes, and no Person shall become a Certificateholder until it shall establish its
non-foreign status by submitting to the Securities Administrator an IRS Form W-9 and the Certificate of Non-Foreign Status set forth
in Exhibit D hereto.
No person shall become a Certificateholder until it shall establish its status as a REIT, as a "qualified REIT subsidiary"
or by an entity that is wholly-owned by a REIT or a "qualified REIT subsidiary" and disregarded for federal income tax purposes
within the meaning of Section 856(a) or Section 856(i) of the Code, respectively, by submitting to the Securities Administrator and
the Owner Trustee, the Transferee Certificate set forth in Exhibit H hereto.
No transfer, sale, pledge or other disposition of a Certificate shall be made unless such transfer, sale, pledge or other
disposition is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in
accordance with said Act and laws. In the event of any such transfer, the Securities Administrator shall prior to such transfer
require the transferee to execute (A) either (i) (a) an investment letter in substantially the form attached hereto as Exhibit C (or
in such form and substance reasonably satisfactory to the Securities Administrator) which investment letter shall not be an expense
of the Trust, the Owner Trustee, the Master Servicer, the Securities Administrator, the Seller, the Servicer or the Depositor and
which investment letter states that, among other things, such transferee (1) is a "qualified institutional buyer" as defined under
Rule 144A, acting for its own account or the accounts of other "qualified institutional buyers" as defined under Rule 144A, and (2)
is aware that the proposed transferor intends to rely on the exemption from registration requirements under the Securities Act of
1933, as amended, provided by Rule 144A or (ii) (a) a written Opinion of Counsel acceptable to and in form and substance satisfactory
to the Securities Administrator, the Owner Trustee and the Depositor that such transfer may be made pursuant to an exemption,
describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws,
which Opinion of Counsel shall not be an expense of the Trust, the Owner Trustee, the Master Servicer, the Securities Administrator,
the Seller, the Servicer or the Depositor and (b) the transferee executes a representation letter, substantially in the form of
Exhibit F hereto, and transferor executes a representation letter, substantially in the form of Exhibit E hereto, each acceptable to
and in form and substance satisfactory to the Securities Administrator, the Owner Trustee and the Depositor certifying the facts
surrounding such transfer, which representation letters shall not be an expense of the Trust, the Owner Trustee, the Master Servicer,
the Securities Administrator, the Seller, the Servicer or the Depositor and (B) the Certificate of Non-Foreign Status (in
substantially the form attached hereto as Exhibit D) acceptable to and in form and substance reasonably satisfactory to the
Securities Administrator, the Owner Trustee and the Depositor, which certificate shall not be an expense of the Trust, the Owner
Trustee, the Master Servicer, the Servicer, the Sponsor, the Securities Administrator. The Holder of a Certificate desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Master Servicer, the Securities
Administrator, the Seller, the Servicer and the Depositor against any liability that may result if the transfer is not so exempt or
is not made in accordance with such federal and state laws.
No transfer of Certificates or any interest therein shall be made to any Person unless the Owner Trustee, the Securities
Administrator, the Master Servicer and the Servicer are provided with an Opinion of Counsel which establishes to the satisfaction of
the Owner Trustee, the Master Servicer, the Securities Administrator, the Sponsor and the Servicer that the purchase of Certificates
is permissible under applicable law, will not constitute or result in any prohibited transaction under ERISA or Section 4975 of the
Code and will not subject the Depositor, the Owner Trustee, the Master Servicer, the Securities Administrator, the Sponsor and the
Servicer to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the Code) in addition to
those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Depositor, the Owner Trustee, the Master
Servicer, the Securities Administrator, the Sponsor and the Servicer. In lieu of such Opinion of Counsel, a Person acquiring such
Certificates may provide a certification in the form of Exhibit G to this Agreement, which the Depositor, the Owner Trustee, the
Securities Administrator, the Master Servicer and the Servicer may rely upon without further inquiry or investigation. Neither an
Opinion of Counsel nor a certification will be required in connection with the initial transfer of any such Certificate by the Seller
to an affiliate of the Seller (in which case, the Seller or any affiliate thereof shall be deemed to have represented that such
affiliate is not a Plan or a Person investing Plan Assets) and the Owner Trustee and the Securities Administrator shall be entitled
to conclusively rely upon a representation (which, upon the request of the Owner Trustee or the Securities Administrator, shall be a
written representation) from the Seller of the status of such transferee as an affiliate of the Seller.
No offer, sale, transfer, pledge, hypothecation or other disposition (including any pledge, sale or transfer under a
repurchase transaction or securities loan) of any Certificate shall be made to any transferee unless, prior to such disposition, the
proposed transferor delivers to the Owner Trustee and the Securities Administrator an Opinion of Counsel, rendered by a law firm
generally recognized to be qualified to opine concerning the tax aspects of asset securitization, to the effect that such transfer
(including any disposition permitted following any default under any pledge or repurchase transaction) will not cause the Trust to be
(i) treated as an association taxable as a corporation for federal income tax and relevant state income and franchise tax purposes or
(ii) taxable as a "publicly traded partnership" as defined in Treasury Regulation section 1.7704-1 for federal income tax purposes
and relevant state franchise or income tax purposes. Notwithstanding the foregoing, the provisions of this paragraph shall not apply
to the initial transfer of the Certificates to the Depositor.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any mutilated Certificate shall be surrendered to
the Securities Administrator, or if the Securities Administrator shall receive evidence to its satisfaction of the destruction, loss
or theft of any Certificate and (b) there shall be delivered to the Securities Administrator and the Owner Trustee such security or
indemnity as may be required by them to save each of them harmless, then in the absence of notice to the Securities Administrator or
the Owner Trustee that such Certificate has been acquired by a bona fide purchaser, the Owner Trustee shall execute on behalf of the
Trust and the Owner Trustee or the Securities Administrator, shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like tenor and denomination. In connection with the issuance
of any new Certificate under this Section 3.06, the Owner Trustee or the Securities Administrator may require the payment of a sum
sufficient to cover any expenses of the Owner Trustee or the Securities Administrator (including fees and expenses of counsel) and
any tax or other governmental charge that may be imposed in connection therewith. Any duplicate Certificate issued pursuant to this
Section 3.06 shall constitute conclusive evidence of ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 3.07. Persons Deemed Certificateholders. Prior to due presentation of a Certificate for registration of
transfer, the Owner Trustee or any Securities Administrator may treat the Person in whose name any Certificate is registered in the
Certificate Register as the owner of such Certificate for the purpose of receiving distributions pursuant to Section 5.02 and for all
other purposes whatsoever, and none of the Trust, the Owner Trustee or any Securities Administrator shall be bound by any notice to
the contrary.
Section 3.08. Access to List of Certificateholders' Names and Addresses. The Securities Administrator shall furnish or
cause to be furnished to the Owner Trustee, within 15 days after receipt by the Securities Administrator of a written request
therefor from the Owner Trustee, a list, in such form as the Owner Trustee may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. Each Holder, by receiving and holding a Certificate, shall be deemed to have
agreed not to hold any of the Trust, the Depositor or the Securities Administrator accountable by reason of the disclosure of its
name and address, regardless of the source from which such information was derived.
Section 3.09. Maintenance of Office or Agency. The Trust shall maintain an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Trust in
respect of the Certificates and the Basic Documents may be delivered. The Trust initially designates the Corporate Trust Office of
the Securities Administrator as its office for purposes of delivery of notices. The Securities Administrator shall give prompt
written notice to the Certificateholders of any change in the location of the Certificate Register or any such office or agency.
Section 3.10. Securities Administrator. (a) The Securities Administrator shall make distributions to
Certificateholders from the Certificate Distribution Account on behalf of the Trust in accordance with the provisions of the
Certificates and Section 5.01 hereof from payments remitted to the Securities Administrator pursuant to Section 3.05 of the
Indenture. The Trust hereby appoints the Securities Administrator as Paying Agent and the Securities Administrator hereby accepts
such appointment and further agrees that it will be bound by the provisions of this Trust Agreement relating to the Securities
Administrator 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 Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(ii) give the Owner Trustee notice of any default by the Trust of which a Responsible Officer of the Securities
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 Securities Administrator;
(iv) not resign from its position as Securities Administrator except that it shall immediately resign as
Securities Administrator and forthwith pay to the Owner Trustee on behalf of the Trust all sums held by it in trust for the
payment of Certificates if at any time it ceases to meet the standards under this Section 3.10 required to be met by the
Securities Administrator at the time of its appointment;
(v) comply with all requirements of the Code with respect to the withholding from any payments made by it on
any Certificates of any applicable withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith; and
(vi) not institute bankruptcy proceedings against the Issuing Entity in connection with this Trust Agreement.
(b) The Trust may revoke such power and remove the Securities Administrator if it determines in its sole discretion that
the Securities Administrator shall have failed to perform its obligations under this Trust Agreement in any material respect. In the
event that Xxxxx Fargo Bank, N.A. shall no longer be the Securities Administrator under this Trust Agreement and under the Indenture,
the Majority Certificateholder, with the consent of the Owner Trustee, shall appoint a successor to act as Securities Administrator
(which shall be a bank or trust company) and which shall also be the successor securities administrator under the Indenture. The
Owner Trustee shall cause such successor securities administrator or any additional Securities Administrator appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument to the effect set forth in Section 3.10(a) as it relates to the
Securities Administrator. The Securities Administrator shall return all unclaimed funds to the Trust and upon removal of a Securities
Administrator such Securities Administrator shall also return all funds in its possession to the Trust. The provisions of Sections
6.01, 6.04, 6.05, 6.06, 6.07, 6.08 and 7.02 shall apply to the Securities Administrator to the same extent applicable to the Owner
Trustee except where the context requires otherwise. Any reference in this Agreement to the Securities Administrator shall include
any co-paying agent unless the context requires otherwise.
(c) The Securities Administrator shall establish and maintain with itself the Certificate Distribution Account in which
the Securities Administrator shall deposit each remittance received by it with respect to payments made pursuant to the Indenture.
The Securities Administrator shall make all distributions to Certificates, from moneys on deposit in the Certificate Distribution
Account, in accordance with Section 5.01 hereof. The funds in the Certificate Distribution Account shall be held uninvested.
ARTICLE IV
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 4.01. General Authority. The Owner Trustee is authorized and directed to execute and deliver the Basic Documents
to which the Trust is to be a party and each certificate or other document attached as an exhibit to or contemplated by the Basic
Documents to which the Trust is to be a party and any amendment or other agreement or instrument described herein, as evidenced
conclusively by the Owner Trustee's execution thereof. In addition to the foregoing, the Owner Trustee is authorized, but shall not
be obligated, except as otherwise provided in this Trust Agreement, to take all actions required of the Trust pursuant to the Basic
Documents.
Section 4.02. General Duties. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all of
its responsibilities pursuant to the terms of this Trust Agreement and the Basic Documents to which the Trust is a party and to
administer the Trust in the interest of the Certificateholders, subject to the Basic Documents and in accordance with the provisions
of this Trust Agreement.
Section 4.03. Action upon Instruction. (a) Subject to Article IV and in accordance with the terms of the Basic
Documents, the Certificateholders may by written instruction direct the Owner Trustee in the management of the Trust. Such direction
may be exercised at any time by written instruction of the Certificateholders pursuant to Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be required to take any action hereunder or under any
Basic Document if the Owner Trustee shall have reasonably determined, or shall have been advised by counsel, that such action is
likely to result in liability on the part of the Owner Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is required to decide between alternative courses of action permitted or required by the
terms of this Trust Agreement or under any Basic Document, or in the event that the Owner Trustee is unsure as to the application of
any provision of this Trust Agreement or any Basic Document or any such provision is ambiguous as to its application, or is, or
appears to be, in conflict with any other applicable provision, or in the event that this Trust Agreement permits any determination
by the Owner Trustee or is silent or is incomplete as to the course of action that the Owner Trustee is required to take with respect
to a particular set of facts, the Owner Trustee shall promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders 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 Certificateholders, 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 Trust
Agreement or the Basic Documents, as it shall deem to be in the best interests of the Certificateholders, and the Owner Trustee shall
have no liability to any Person for such action or inaction.
Section 4.04. No Duties Except as Specified under Specified Documents or in Instructions. The Owner Trustee shall not
have any duty or obligation to manage, make any payment with respect to, register, record, sell, dispose of, or otherwise deal with
the Owner Trust Estate, or to otherwise take or refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Owner Trustee is a party, except as expressly provided (i) in accordance with the powers granted to
and the authority conferred upon the Owner Trustee pursuant to this Trust Agreement, (ii) in accordance with the Basic Documents and
(iii) in accordance with any document or instruction delivered to the Owner Trustee pursuant to Section 4.03; and no implied duties
or obligations shall be read into this Trust Agreement or any Basic Document against the Owner Trustee. The Owner Trustee shall have
no responsibility for filing any financing or continuation statement in any public office at anytime or to otherwise perfect or
maintain the perfection of any security interest or lien granted to it hereunder or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Trust Agreement or any Basic Document. Notwithstanding any provision herein or in
any other Basic Document, the Owner Trustee shall not be obligated to prepare, file or execute any documents or certifications
required to be filed by the Trust pursuant to the Xxxxxxxx-Xxxxx Act of 2002, as amended. The Owner Trustee nevertheless agrees that
it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the Owner
Trust Estate that result from actions by, or claims against, the Owner Trustee that are not related to the ownership or the
administration of the Owner Trust Estate.
Section 4.05. Restrictions. (a) The Owner Trustee or the Depositor (or an Affiliate thereof) shall not take any action
(x) that is inconsistent with the purposes of the Trust set forth in Section 2.03, (y) that, to the actual knowledge of the Owner
Trustee based on an Opinion of Counsel rendered by a law firm generally recognized to be qualified to opine concerning the tax
aspects of asset securitization, would result in the Trust becoming taxable as a corporation for federal income tax purposes or (z)
would result in the amendment or modification of this Trust Agreement. The Certificateholders shall not direct the Owner Trustee to
take action that would violate the provisions of this Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the Trust's properties or assets, including those included in
the Trust Estate, to any person unless (a) it shall have received an Opinion of Counsel rendered by a law firm generally recognized
to be qualified to opine concerning the tax aspects of asset securitization to the effect that such transaction will not have any
material adverse tax consequence to the Trust or any Certificateholder and (b) such conveyance or transfer shall not violate the
provisions of Section 3.16(b) of the Indenture.
Section 4.06. Prior Notice to Certificateholders with Respect to Certain Matters. With respect to the following matters,
the Owner Trustee shall not take action unless at least 10 days before the taking of such action, the Owner Trustee shall have
notified the Certificateholders in writing of the proposed action and the Certificateholders shall have notified the Owner Trustee in
writing prior to the 10th day after such notice is given that such Certificateholders have given their consent or provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims or lawsuits brought in connection with the
collection of cash distributions due and owing under the Mortgage Loans) and the compromise of any action, claim or lawsuit brought
by or against the Trust (except with respect to the aforementioned claims or lawsuits for collection of cash distributions due and
owing under the Mortgage Loans);
(b) the election by the Trust to file an amendment to the Certificate of Trust (unless such amendment is required to be
filed under the Statutory Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in circumstances where the consent of any Noteholder is
required;
(d) the amendment of the Indenture by a supplemental indenture in circumstances where the consent of any Noteholder is
not required and such amendment materially adversely affects the interest of the Certificateholders; and
(e) the appointment pursuant to the Indenture of a successor securities administrator or indenture trustee or pursuant
to this Trust Agreement of a successor securities administrator or the consent to the assignment by the Securities Administrator or
Indenture Trustee of its obligations under the Indenture or this Trust Agreement, as applicable.
Section 4.07. Action by Certificateholders with Respect to Certain Matters. The Owner Trustee shall not have the power,
except upon the direction of the Certificateholders to (a) remove the Servicer under the Sale and Servicing Agreement pursuant to
Sections 6.01 thereof or (b) except as expressly provided in the Basic Documents, sell the Mortgage Loans after the termination of
the Indenture. The Owner Trustee shall take the actions referred to in the preceding sentence only upon written instructions signed
by the Certificateholders.
Section 4.08. Action by Certificateholders with Respect to Bankruptcy. The Owner Trustee shall not have the power to
commence a voluntary proceeding in bankruptcy relating to the Trust without the unanimous prior approval of all Certificateholders
and the consent of the Noteholders and the Owner Trustee and the delivery to the Owner Trustee by each such Certificateholder of a
certificate certifying that such Certificateholder reasonably believes that the Trust is insolvent. This paragraph shall survive for
one year following termination of this Trust Agreement.
Section 4.09. Restrictions on Certificateholders' Power. The Certificateholders shall not direct the Owner Trustee to
take or to refrain from taking any action if such action or inaction would be contrary to any obligation of the Trust or the Owner
Trustee under this Trust Agreement or any of the Basic Documents or would be contrary to Section 2.03, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
Section 4.10. Majority Control. Except as expressly provided herein, any action that may be taken by the
Certificateholders under this Trust Agreement may be taken by the Holders of Certificates evidencing not less than a majority
Percentage Interest of the Certificates. Except as expressly provided herein, any written notice of the Certificateholders delivered
pursuant to this Trust Agreement shall be effective if signed by Holders of Certificates evidencing not less than a majority
Percentage Interest of the Certificates at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS
Section 5.01. Distributions. (a) On each Payment Date, the Securities Administrator shall distribute to the
Certificateholders, all funds remaining on deposit in the Certificate Distribution Account and available therefor (as provided in
Section 3.05 of the Indenture) for such Payment Date after payment of any amount owing to the Owner Trustee hereunder and any
Expenses of the Trust remaining unpaid in the following order of priority:
(i) first, to the Class XS Certificates, on a pro rata basis based on the aggregate notional principal amount of the
Class XS Certificates held by each Holder of the Class XS Certificates, the Class XS Certificate Distribution Amount; and
(ii) second, to the Class C Certificates, on a pro rata basis based on the aggregate principal amount of Class C
Certificates held by each Holder of the Class C Certificates, the Class C Certificate Distribution Amount; and
(iii) third, to the Class R Certificates, any remaining funds on deposit in the Certificate Distribution Account.
(b) In the event that any withholding tax is imposed on the distributions (or allocations of income) to a
Certificateholder, such tax shall reduce the amount otherwise distributable to the Certificateholder in accordance with this Section
5.01. The Securities Administrator is hereby authorized and directed to retain or cause to be retained from amounts otherwise
distributable to the Certificateholders sufficient funds for the payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Owner Trustee from contesting any such tax in appropriate proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such Certificateholder at the time it is withheld by the Securities
Administrator and remitted to the appropriate taxing authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S. Certificateholder), the Securities Administrator may in its sole
discretion withhold such amounts in accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the creditors of the Trust, including the Noteholders.
Section 5.02. Method of Payment. Subject to Section 8.01(c), distributions required to be made to Certificateholders on
any Payment Date as provided in Section 5.01 shall be made to each Certificateholder of record on the preceding Record Date by wire
transfer, in immediately available funds, to the account of such Holder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Securities Administrator appropriate written instructions at least
five Business Days prior to such Payment Date or, if not, by check mailed to such Certificateholder at the address of such Holder
appearing in the Certificate Register.
Section 5.03. Tax Returns. The Securities Administrator shall (a) maintain (or cause to be maintained) the books of the
Trust on a calendar year basis using the accrual method of accounting, (b) deliver to each Certificateholder as may be required by the
Code and applicable Treasury Regulations, such information as may be required to enable each Certificateholder to prepare its federal
and state income tax returns, (c) prepare and file or cause to be prepared and filed such tax returns relating to the Trust as may be
required by the Code and applicable Treasury Regulations (making such elections as may from time to time be required or appropriate
under any applicable state or federal statutes, rules or regulations) and provide a copy of any such tax return to the Sponsor after
such tax return has been filed; and (d) collect or cause to be collected any withholding tax as described in and in accordance with
Section 5.01 of this Trust Agreement with respect to income or distributions to Certificateholders and prepare or cause to be prepared
the appropriate forms relating thereto; provided, however, that the Securities Administrator shall not be required to prepare and file
partnership tax returns or any other tax returns on behalf of the Issuing Entity or do any additional tax work caused by any change in
the tax treatment of the Notes or Trust from the treatment contemplated hereunder on the Closing Date unless the Securities
Administrator receives (i) an Opinion of Counsel reasonably satisfactory to it (which shall not be at the Securities Administrator's
expense, but shall be at the expense of the Sponsor or other party furnishing such opinion) as to the necessity of such filings or
work, and (ii) reasonable additional compensation for the preparation and filing of such additional returns or any such additional tax
work. The Issuing Entity hereby grants permission to the Securities Administrator to sign, to the extent permitted by law, all tax and
information returns prepared or caused to be prepared by the Securities Administrator pursuant to this Section 5.03 at the request of
the Securities Administrator, and in doing so, the Owner Trustee and the Certificateholders shall rely entirely upon, and shall have no
liability for information or calculations provided by, the Securities Administrator.
Section 5.04. Statements to Certificateholders. On each Payment Date, the Securities Administrator shall make available
to each Certificateholder the statement or statements provided to the Owner Trustee by the Securities Administrator pursuant to
Section 7.05 of the Indenture with respect to such Payment Date.
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts the trusts hereby created and agrees to perform
its duties hereunder with respect to such trusts but only upon the terms of this Trust Agreement. The Owner Trustee and the
Securities Administrator also agree to disburse all moneys actually received by it constituting part of the Owner Trust Estate upon
the terms of the Basic Documents and this Trust Agreement. The Owner Trustee shall not be answerable or accountable hereunder or
under any Basic Document under any circumstances, except (i) for its own willful misconduct, gross negligence or bad faith or grossly
negligent failure to act or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 6.03 expressly
made by the Bank. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) The Owner Trustee shall not be liable with respect to any action taken or omitted to be taken by it in accordance
with the instructions of the Certificateholders permitted under this Trust Agreement;
(b) No provision of this Trust Agreement or any Basic Document shall require the Owner Trustee to expend or risk funds
or otherwise incur any financial liability in the performance of any of its rights, duties or powers hereunder or under any Basic
Document if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it;
(c) Under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any of the
Basic Documents, including the principal of and interest on the Notes;
(d) The Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Trust Agreement
or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of any of
the Owner Trust Estate, or for or in respect of the validity or sufficiency of the Basic Documents, the Notes, the Certificates,
other than the certificate of authentication on the Certificates, if executed and authenticated by the Owner Trustee and the Owner
Trustee shall in no event assume or incur any liability, duty, or obligation to any Noteholder or to any Certificateholder, other
than as expressly provided for herein or expressly agreed to in the Basic Documents;
(e) The Owner Trustee shall not be liable for the default or misconduct of the Depositor, the Indenture Trustee, the
Securities Administrator, the Master Servicer or the Servicer under any of the Basic Documents or otherwise and the Owner Trustee
shall have no obligation or liability to perform the obligations of the Trust under this Trust Agreement or the Basic Documents that
are required to be performed by the Indenture Trustee under the Indenture, the Master Servicer under the Sale and Servicing Agreement
or the Seller under the Assignment Agreement.
(f) The Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it or duties
imposed by this Trust Agreement, or to institute, conduct or defend any litigation under this Trust Agreement or otherwise or in
relation to this Trust Agreement or any Basic Document, at the request, order or direction of any of the Certificateholders, unless
such Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Trust Agreement or in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its gross negligence or willful misconduct in the performance of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish to the Noteholders, Beneficial Owners and
Certificateholders promptly upon receipt of a written reasonable request therefor, duplicates or copies of all reports, notices,
requests, demands, certificates, financial statements and any other instruments furnished to the Owner Trustee under the Basic
Documents.
Section 6.03. Representations and Warranties. The Bank hereby represents and warrants to the Depositor, for the benefit
of the Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in good standing under the laws of the State of
Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under this Trust
Agreement;
(b) It has taken all corporate action necessary to authorize the execution and delivery by it of this Trust Agreement,
and this Trust Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver this
Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust Agreement, nor the consummation by it of the transactions
contemplated hereby nor compliance by it with any of the terms or provisions hereof will contravene any federal or Delaware law,
governmental rule or regulation governing the banking or trust powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture, mortgage, contract, agreement or instrument to which
it is a party or by which any of its properties may be bound;
(d) This Trust Agreement assuming due authorization, execution and delivery by the Depositor, constitutes a valid, legal
and binding obligation of the Owner Trustee, enforceable against it in accordance with the terms hereof subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally and to
general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(e) The execution, delivery, authentication and performance by it of this Trust Agreement will not require the
authorization, consent or approval of, the giving of notice to, the filing or registration with, or the taking of any other action
with respect to, any governmental authority or agency;
(f) The Bank is not in default with respect to any order or decree of any court or any order, regulation or demand of
any Federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely
affect the condition (financial or other) or operations of the Bank or its properties or might have consequences that would
materially adversely affect its performance hereunder; and
(g) No litigation is pending or, to the best of the Bank's knowledge, threatened against the Bank which would prohibit
its entering into this Trust Agreement or performing its obligations under this Trust Agreement.
Section 6.04. Reliance; Advice of Counsel. (a) The Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, note, or other document or paper
believed by it to be genuine and believed by it to be signed by the proper party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the method of
determination of which is not specifically prescribed herein, the Owner Trustee may for all purposes hereof rely on a certificate,
signed by the president or any vice president or by the treasurer or other authorized officers of the relevant party, as to such fact
or matter and such certificate shall constitute full protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in the performance of its duties and obligations under
this Trust Agreement or the Basic Documents, the Owner Trustee (i) may act directly or through its agents, attorneys, custodians or
nominees (including persons acting under a power of attorney) pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents, attorneys, custodians or nominees (including persons acting
under a power of attorney) if such persons have been selected by the Owner Trustee with reasonable care, and (ii) may consult with
counsel, accountants and other skilled persons to be selected with reasonable care and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance with the opinion or advice of any such counsel,
accountants or other such Persons and not contrary to this Trust Agreement or any Basic Document.
Section 6.05. Not Acting in Individual Capacity. Except as provided in this Article VI, in accepting the trusts hereby
created Wilmington Trust Company acts solely as Owner Trustee hereunder and not in its individual capacity, and all Persons having
any claim against the Owner Trustee by reason of the transactions contemplated by this Trust Agreement or any Basic Document shall
look only to the Owner Trust Estate for payment or satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates or Related Documents. The recitals contained herein and in the
Certificates (other than the signatures of the Owner Trustee on the Certificates) shall not be taken as the statements of the Owner
Trustee, 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 Trust Agreement, of any Basic Document or of the Certificates (other than the signatures of
the Owner Trustee on the Certificates) or the Notes, or of any Related Documents. The Owner Trustee shall at no time have any
responsibility or liability with respect to the sufficiency of the Owner Trust Estate or its ability to generate the payments to be
distributed to Certificateholders under this Trust Agreement or the Noteholders under the Indenture, including compliance by the
Depositor or the Seller with any warranty or representation made under any Basic Document or in any related document or the accuracy
of any such warranty or representation, or any action of the Securities Administrator or the Indenture Trustee taken in the name of
the Owner Trustee.
Section 6.07. Owner Trustee May Own Certificates and Notes. The Owner Trustee in its individual or any other capacity
may, subject to Section 3.05, become the owner or pledgee of Certificates or Notes and may deal with the Depositor, the Seller, the
Securities Administrator and the Indenture Trustee in transactions with the same rights as it would have if it were not Owner Trustee.
Section 6.08. Payments from Owner Trust Estate. All payments to be made by the Owner Trustee under this Trust Agreement
or any of the Basic Documents to which the Owner Trustee is a party shall be made only from the income and proceeds of the Owner
Trust Estate or from other amounts required to be provided by the Certificateholders and only to the extent that the Owner Trust
shall have received income or proceeds from the Owner Trust Estate or the Certificateholders to make such payments in accordance with
the terms hereof. Wilmington Trust Company, in its individual capacity, shall not be liable for any amounts payable under this Trust
Agreement or any of the Basic Documents to which the Owner Trustee is a party.
Section 6.09. Doing Business in Other Jurisdictions. Notwithstanding anything contained herein to the contrary, neither
Wilmington Trust Company nor the Owner Trustee shall be required to take any action in any jurisdiction other than in the State of
Delaware if the taking of such action will, even after the appointment of a co-trustee or separate trustee in accordance with Section
9.05 hereof, (i) require the consent or approval or authorization or order of or the giving of notice to, or the registration with or
the taking of any other action in respect of, any state or other governmental authority or agency of any jurisdiction other than the
State of Delaware; (ii) result in any fee, tax or other governmental charge under the laws of the State of Delaware becoming payable
by Wilmington Trust Company; or (iii) subject Wilmington Trust Company to personal jurisdiction in any jurisdiction other than the
State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by Wilmington Trust
Company or the Owner Trustee, as the case may be, contemplated hereby.
Section 6.10. Liability of Securities Administrator. All provisions affording protection or rights to or limiting the
liability of the Owner Trustee, including the provisions of this Agreement permitting the Owner Trustee to resign, merge or
consolidate, shall inure as well to the Securities Administrator.
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.01. Owner Trustee Fees and Expenses. The Owner Trustee shall receive from the Sponsor as compensation for its
services hereunder such fees as have been separately agreed upon by the Owner Trustee and the Sponsor before the date hereof.
Additionally, the Owner Trustee shall be reimbursed from amounts on deposit in the Note Account, in accordance with Section 6.07 of
the Indenture for its reasonable expenses hereunder and under the other Basic Documents, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and counsel as the Owner Trustee may reasonably employ in
connection with the exercise and performance of its rights and its duties hereunder and under the other Basic Documents.
Section 7.02. Indemnification. The Sponsor shall indemnify, defend and hold harmless the Owner Trustee and the Depositor
and their respective successors, assigns, agents and servants (collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever (collectively, "Expenses") which may
at any time be imposed on, incurred by, or asserted against any Indemnified Party in any way relating to or arising out of this Trust
Agreement, the other Basic Documents, the Owner Trust Estate, the administration of the Owner Trust Estate or the action or inaction
of the Owner Trustee or the Depositor, hereunder, provided, that:
(i) the Sponsor shall not be liable for or required to indemnify an Indemnified Party, as applicable, from and
against Expenses arising or resulting from such Indemnified Party's own willful misconduct, gross negligence or bad faith
or, as to the Owner Trustee or the Depositor, as a result of any inaccuracy of a representation or warranty of the Owner
Trustee contained in Section 6.03 expressly made by the Owner Trustee or warranty of the Depositor contained in Section 2.10
expressly made by the Depositor;
(ii) with respect to any such claim, the Indemnified Party shall have given the Sponsor written notice thereof
promptly after the Indemnified Party shall have actual knowledge thereof; provided that failure to deliver such notice shall
not affect an Indemnified Party's right to indemnification hereunder,
(iii) while maintaining control over its own defense, the Sponsor shall consult with the Indemnified Party in
preparing such defense; and
(iv) notwithstanding anything in this Agreement to the contrary, the Sponsor shall not be liable for settlement
of any claim by an Indemnified Party entered into without the prior consent of the Sponsor which consent shall not be
unreasonably withheld.
The indemnities contained in this Section shall survive the resignation or termination of the Owner Trustee or the
termination of this Trust Agreement. In the event of any claim, action or proceeding for which indemnity will be sought pursuant to
this Section 7.02, the Owner Trustee's or the Depositor's choice of legal counsel, if other than the legal counsel retained by the
Owner Trustee or the Depositor in connection with the execution and delivery of this Trust Agreement, shall be subject to the
approval of the Sponsor, which approval shall not be unreasonably withheld. In addition, upon written notice to the Owner Trustee or
the Depositor and with the consent of the Owner Trustee or the Depositor, as applicable, which consent shall not be unreasonably
withheld, the Sponsor has the right to assume the defense of any claim, action or proceeding against such party with counsel
reasonably satisfactory to the Owner Trustee or the Depositor, as applicable.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.01. Termination of Trust Agreement. (a) This Trust Agreement (other than Article VII) and the Trust shall
terminate and be of no further force or effect upon the earliest of (i) the final distribution of all moneys or other property or
proceeds of the Owner Trust Estate in accordance with the terms of the Indenture and this Trust Agreement, (ii) the distribution of
all of the assets of the Owner Trust Estate, in accordance with written instructions provided to the Securities Administrator by the
Majority Certificateholder, following the optional redemption of the Notes by the Issuing Entity pursuant to Section 8.07 of the
Indenture; provided in each case that all amounts owing to the Noteholders to the extent payable from the Owner Trust Estate or
proceeds thereof have been paid in full and that all obligations under the Indenture have been discharged. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder shall not (x) operate to terminate this Trust Agreement or the
Trust or (y) entitle such Certificateholder's legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the Trust or the Owner Trust Estate or (z) otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor any Certificateholder shall be entitled to revoke
or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date upon which Certificateholders shall surrender
their Certificates to the Securities Administrator for payment of the final distribution and cancellation, shall be given by the
Securities Administrator by letter to Certificateholders mailed within five Business Days of receipt of notice of the final payment
on the Notes from the Securities Administrator, 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 Securities Administrator 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 Corporate Trust Office of the
Securities Administrator. The Securities Administrator shall give such notice to the Owner Trustee at the time such notice is given
to Certificateholders. Upon presentation and surrender of the Certificates, the Securities Administrator shall cause to be
distributed to Certificateholders amounts distributable on such Payment Date pursuant to Section 5.01.
In the event that all of the Certificateholders shall not surrender their Certificates for cancellation within six months
after the date specified in the above mentioned written notice, the Securities Administrator shall give a second written notice to
the remaining Certificateholders to surrender their Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if within one year following the Payment Date on which final
payment of the Certificates was to have been made pursuant to Section 3.03 of the Indenture, all the Certificates shall not have been
surrendered for cancellation, the Securities Administrator may take appropriate steps, or may appoint an agent to take appropriate
steps, to contact the remaining Certificateholders concerning surrender of their Certificates, and the cost thereof shall be paid out
of the funds and other assets that shall remain subject to this Trust Agreement. Any funds remaining in the Certificate Distribution
Account after exhaustion of such remedies shall be distributed by the Securities Administrator to the Holders of the Owner Trust
Certificates.
(d) Upon the winding up of the Trust and its termination, and notice thereof by the Majority Certificateholder, the
Owner Trustee shall 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(c) of the Statutory 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 Statutory Trust Statute; authorized to exercise corporate trust powers; having a
combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) a rating of at least Baa3 by Moody's or is otherwise acceptable to the Rating Agencies. If such
corporation shall publish reports of condition at least annually pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purpose of this Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Owner
Trustee shall cease to be eligible in accordance with the provisions of this Section 9.01, the Owner Trustee shall resign immediately
in the manner and with the effect specified in Section 9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at any time resign and be discharged from the trusts
hereby created by giving 30 days prior written notice thereof to the Depositor, the Sponsor and the Majority Certificateholder. Upon
receiving such notice of resignation, the Majority Certificateholder shall promptly appoint a successor owner trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the resigning Owner Trustee and to the successor owner
trustee. If no successor owner trustee shall have been so appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Owner Trustee may petition any court of competent jurisdiction for the appointment of a
successor owner trustee.
The Majority Certificateholder may at any time remove the Owner Trustee and appoint a successor owner trustee meeting the
requirements of Section 9.01 by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and to the successor owner trustee and the Indenture 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 Majority Certificateholder, 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 Majority Certificateholder may remove the Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a successor owner trustee pursuant to any of the
provisions of this Section shall not become effective until acceptance of appointment by the successor owner trustee pursuant to
Section 9.03 and payment of all fees and expenses owed to the outgoing Owner Trustee. The Servicer shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
Section 9.03. Successor Owner Trustee. Any successor owner trustee appointed pursuant to Section 9.02 shall execute,
acknowledge and deliver to the Indenture Trustee and to its predecessor Owner Trustee an instrument accepting such appointment under
this Trust Agreement, and thereupon the resignation or removal of the predecessor Owner Trustee shall become effective, and such
successor owner trustee, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties
and obligations of its predecessor under this Trust Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to the successor owner trustee all documents and
statements and monies held by it under this Trust Agreement; and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and certainly vesting and confirming in the successor
owner trustee all such rights, powers, duties and obligations.
No successor owner trustee shall accept appointment as provided in this Section 9.03 unless at the time of such acceptance
such successor owner trustee shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor owner trustee pursuant to this Section 9.03, the Owner Trustee shall mail
notice thereof to all Certificateholders, the Indenture Trustee, the Noteholders and the Rating Agencies.
Section 9.04. Merger or Consolidation of Owner Trustee. Any Person into which the Owner Trustee may be merged or
converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Owner Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Owner
Trustee, shall be the successor of the Owner Trustee hereunder, without the execution or filing of any instrument or any further act
on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, that such Person shall be
eligible pursuant to Section 9.01 and, provided, further, that the Owner Trustee shall mail notice of such merger or consolidation to
the Rating Agencies.
Section 9.05. Appointment of Co-Trustee or Separate Trustee. Notwithstanding any other provisions of this Trust
Agreement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Owner Trust
Estate may at the time be located, the Owner Trustee shall have the power and shall execute and deliver all instruments to appoint
one or more Persons to act as co-trustee, jointly with the Owner Trustee, or as separate trustee or trustees, of all or any part of
the Owner Trust Estate, and to vest in such Person, in such capacity, such title to the Trust or any part thereof and, subject to the
other provisions of this Section, such powers, duties, obligations, rights and trusts as the Owner Trustee may consider necessary or
desirable. No co-trustee or separate trustee under this Trust Agreement shall be required to meet the terms of eligibility as a
successor owner trustee pursuant to Section 9.01 and no notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed upon the Owner Trustee shall be conferred upon and
exercised or performed by the Owner Trustee and such separate trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the Owner Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title
to the Owner Trust Estate or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Owner Trustee;
(b) No trustee under this Trust Agreement shall be personally liable by reason of any act or omission of any other
trustee under this Trust Agreement; and
(c) The Owner Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or
co-trustee shall refer to this Trust Agreement and the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided therein, subject to all the provisions of this Trust Agreement,
specifically including every provision of this Trust Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner Trustee as its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Trust Agreement on its
behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised by the Owner Trustee, to the extent permitted by law,
without the appointment of a new or successor co-trustee or separate trustee.
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments. (a) This Trust Agreement may be amended from time to time by the parties hereto as specified
in this Section, provided that any amendment, except as provided in subparagraph (e) below, be accompanied by (a) an Opinion of
Counsel addressed to the Owner Trustee and the Securities Administrator and obtained by the party requesting such amendment to the
effect that such amendment (i) complies with the provisions of this Section and (ii) if NIC OTC LLC is not the Majority
Certificateholder, would not cause the Trust to be subject to an entity level tax for federal income tax purposes and (b) an
Officer's Certificate of the Sponsor that such amendment shall not cause the Trust to fail to qualify as a "qualified special purpose
entity" under Financial Accounting Standards No. 140.
(b) If the purpose of the amendment (as detailed therein) is to correct any mistake, eliminate any inconsistency, cure
any ambiguity or deal with any matter not covered (i.e. to give effect to the intent of the parties and, if applicable, to the
expectations of the Holders), it shall not be necessary to obtain the consent of any Holders, but the Owner Trustee and the
Securities Administrator shall be furnished with (A) a letter from each of the Rating Agencies that the amendment will not result in
the downgrading or withdrawal of the rating then assigned to any Note or the rating then assigned to any Outstanding Note or (B) an
Opinion of Counsel obtained by the party requesting the amendment to the effect that such action will not adversely affect in any
material respect the interests of any Holders.
(c) If the purpose of the amendment is to prevent the imposition of any federal or state taxes at any time that any
Security is outstanding, it shall not be necessary to obtain the consent of any Holder, but the Owner Trustee and the Securities
Administrator shall be furnished with an Opinion of Counsel obtained by the Sponsor that such amendment is necessary or helpful to
prevent the imposition of such taxes and is not materially adverse to any Holder.
If the purpose of the amendment is to add or eliminate or change any provision of the Trust Agreement other than as
contemplated in (b) and (c) above, the amendment shall require (A) an Opinion of Counsel obtained by the party requesting the
amendment to the effect that such action will not adversely affect in any material respect the interests of any Holders of the
Outstanding Notes and Certificates and (B) either (a) a letter from each of the Rating Agencies that the amendment will not result in
the downgrading or withdrawal of the rating then assigned to any Outstanding Note or the rating then assigned to any Outstanding Note
or (b) the consent of Holders of Certificates evidencing a majority Percentage Interest of the Certificates and, if any, the Holders
of not less than 50% of the Certificate Percentage Interest of the Certificates registered in the name of any Person other than the
Seller or any of its Affiliates; provided, however, that no such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, payments received that are required to be distributed on any Certificate without the consent of the related
Certificateholder, or (ii) reduce the aforesaid percentage of Certificates the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all such Certificates then outstanding.
(d) If the purpose of the amendment is to provide for the holding of any of the Certificates in book-entry form, it
shall require the consent of Holders of all such Certificates then outstanding; provided, that the Opinion of Counsel specified in
subparagraph (a) above shall not be required.
(e) If the purpose of the amendment is to provide for the issuance of additional certificates representing an interest
in the Trust, it shall not be necessary to obtain the consent of any Holder, but the Owner Trustee and the Securities Administrator
shall be furnished with (A) an Opinion of Counsel obtained by the Sponsor to the effect that such action will not adversely affect in
any material respect the interests of any Holders, (B) an Opinion of Counsel obtained by the Sponsor to the effect that such action
will not cause the Trust to be (i) treated as an association taxable as a corporation for federal income tax and relevant state
income and franchise tax purposes or (ii) taxable as a "publicly traded partnership" as defined in Treasury Regulation section
1.7704-1 for federal income tax purposes and relevant state franchise or income tax purposes and (C) a letter from each of the Rating
Agencies that the amendment will not result in the downgrading or withdrawal of the rating then assigned to any Notes or the rating
then assigned to the Notes.
(f) Promptly after the execution of any such amendment or consent, the Sponsor shall furnish written notification of the
substance of such amendment or consent to each Certificateholder, the Indenture Trustee and, if any Notes are Outstanding, each of
the Rating Agencies. It shall not be necessary for the consent of Certificateholders or the Indenture Trustee pursuant to this
Section 10.01 to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any other consents of Certificateholders provided for in
this Trust Agreement or in any other Basic Document) and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the Owner Trustee may prescribe.
(g) In connection with the execution of any amendment to any agreement to which the Trust is a party, other than this
Trust Agreement, the Owner Trustee and the Securities Administrator shall be entitled to receive and conclusively rely upon an
Opinion of Counsel to the effect that such amendment is authorized or permitted by the documents subject to such amendment and that
all conditions precedent in the Basic Documents for the execution and delivery thereof by the Trust or the Owner Trustee, as the case
may be, have been satisfied.
(h) No amendment or agreement affecting the rights or duties of the Owner Trustee or the Securities Administrator may be
entered into without the consent of the affected party.
(j) Notwithstanding the foregoing but subject to clause (i) above, any amendment subsequent to the discharge of the
Indenture requested in writing by the Holders of Certificates representing more than 50% of the aggregate Certificate Percentage
Interest shall be entered into by the parties hereto without further action and, if any, the Holders of not less than 50% of the
Certificate Percentage Interest of the Certificates registered in the name of any Person other than the Seller or any of its
Affiliates.
Promptly after the execution of any amendment to the Certificate of Trust, the Owner Trustee shall cause the filing of such
amendment with the Secretary of State of the State of Delaware.
Section 10.02. No Legal Title to Owner Trust Estate. The Certificateholders shall not have legal title to any part of the
Owner Trust Estate solely by virtue of their status as a Certificateholder. The Certificateholders shall be entitled to receive
distributions with respect to their undivided beneficial interest therein only in accordance with Articles V and VIII. No transfer,
by operation of law or otherwise, of any right, title or interest of the Certificateholders to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Trust Agreement or the trusts hereunder or entitle any transferee to an accounting
or to the transfer to it of legal title to any part of the Owner Trust Estate.
Section 10.03. Limitations on Rights of Others. Except for Section 2.07, the provisions of this Trust Agreement are
solely for the benefit of the Owner Trustee, the Depositor, the Certificateholders and, to the extent expressly provided herein, the
Indenture Trustee and the Noteholders, and nothing in this Trust Agreement (other than Section 2.07), whether express or implied,
shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Owner Trust Estate or under or in
respect of this Trust Agreement or any covenants, conditions or provisions contained herein.
Section 10.04. Notices. (a) Unless otherwise expressly specified or permitted by the terms hereof, all notices shall be
in writing and shall be deemed given upon receipt, to the Owner Trustee at: Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; Attention: Corporate Trust Administration; to the Depositor at: Bear Xxxxxxx Asset Backed
Securities I LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, with a copy to Newcastle Investment
Corp., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxx; to the Securities Administrator at the Corporate
Trust Office; to the Securities Administrator at: Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; to Moody's at: 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Residential Mortgage Monitoring Unit; and to S&P at: 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000; or, as to each party, at such other address as shall be designated by such party in a written notice to each other
party.
(b) Any notice required or permitted to be given to a Certificateholder shall be given by first-class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register. Any notice so mailed within the time prescribed in this
Trust Agreement shall be conclusively presumed to have been duly given, whether or not the Certificateholder receives such notice.
(c) A copy of any notice delivered to the Owner Trustee or the Trust shall also be delivered to the Depositor.
Section 10.05. Severability. Any provision of this Trust Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 10.06. Separate Counterparts. This Trust Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 10.07. Successors and Assigns. All representations, warranties, covenants and agreements contained herein shall
be binding upon, and inure to the benefit of, each of the Depositor, the Owner Trustee and its successors, and each Certificateholder
and its successors and permitted assigns, all as herein provided. Any request, notice, direction, consent, waiver or other instrument
or action by a Certificateholder shall bind the successors and assigns of such Certificateholder.
Section 10.08. No Petition. The Owner Trustee, by entering into this Trust Agreement and each Certificateholder, by
accepting a Certificate, hereby covenant and agree that they will not at any time institute against the Depositor or the Trust, or
join in any institution against the Depositor or the Trust of, any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations to the Certificates, the Notes, this Trust Agreement or any of the Basic
Documents. This Section shall survive for one year following the termination of this Trust Agreement.
Section 10.09. No Recourse. Each Certificateholder by accepting a Certificate acknowledges that such Certificateholder's
Certificates represent beneficial interests in the Trust only and do not represent interests in or obligations of the Depositor, the
Seller, the Owner Trustee, the Indenture Trustee, the Securities Administrator or any Affiliate thereof and no recourse may be had
against such parties or their assets, except as may be expressly set forth or contemplated in this Trust Agreement, the Certificates
or the Basic Documents.
Section 10.10. Headings. The headings of the various Articles and Sections herein are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. Integration. This Trust Agreement constitutes the entire agreement among the parties hereto pertaining to
the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.
Section 10.13. Obligations. The execution and delivery of this Trust Agreement by Xxxxx Fargo Bank, N.A. is not in its
individual capacity but solely in its capacity as Securities Administrator, and solely for purposes of its appointment and agreement
to serve as Securities Administrator. The Securities Administrator shall have no duties or obligations under this Agreement except
for those duties expressly set forth in this Agreement as duties of the Securities Administrator, and no implied duties shall be read
into this Agreement on the part of the Securities Administrator. In entering into this Agreement and with respect to all matters
arising under this Agreement, the Securities Administrator shall enjoy and be protected by all of the rights, powers, benefits,
immunities, indemnities and other protections granted to it under Article VI of the Indenture, whether acting in its capacity as
Securities Administrator.
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by their respective officers thereunto
duly authorized, all as of the day and year first above written.
BEAR XXXXXXX ASSET BACKED SECURITIES I LLC, as
Depositor
By: ______________________________________
Name:
Title:
WILMINGTON TRUST COMPANY, as Owner Trustee
By: ______________________________________
Name:
Title:
XXXXX FARGO BANK, N.A., as Securities Administrator
By: ______________________________________
Name:
Title:
For purposes of Sections 3.04, 3.05, 5.03, 7.01 and
7.02:
NEWCASTLE INVESTMENT CORP., as Sponsor
By: ______________________________________
Name:
Title:
EXHIBIT A
FORM OF TRUST CERTIFICATE
[FACE]
THIS CERTIFICATE IS SUBORDINATE TO THE NOTES AS DESCRIBED IN THE INDENTURE.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE SECURITIES ADMINISTRATOR SHALL HAVE RECEIVED A CERTIFICATE OF
NON-FOREIGN STATUS CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER U.S. LAW.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE SECURITIES ADMINISTRATOR HAS RECEIVED PROOF OF THE TRANSFEREE'S
STATUS AS A REIT, A QUALIFIED REIT SUBSIDIARY OR BY AN ENTITY THAT IS WHOLLY-OWNED BY A REIT OR A QUALIFIED REIT SUBSIDIARY AND
DISREGARDED FOR FEDERAL INCOME TAX PURPOSES, WITHIN THE MEANING OF SECTION 856(A) OR SECTION 856(I) OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.05 OF THE TRUST AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE SECURITIES ADMINISTRATOR SHALL HAVE RECEIVED EITHER (i) A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR
OTHER PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN, OR
(ii) IF THIS CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN SUBJECT TO ERISA, OR SECTION 4975 OF THE CODE (OR
COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER PERSON WHO IS USING THE ASSETS OF
ANY SUCH PLAN TO EFFECT SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OF CERTIFICATES IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN ANY PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE AND WILL NOT
SUBJECT THE DEPOSITOR, THE SELLER, THE SERVICER, THE OWNER TRUSTEE, THE SECURITIES ADMINISTRATOR OR THE MASTER SERVICER TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE
UNDERTAKEN IN THE TRUST AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE DEPOSITOR, THE OWNER TRUSTEE, THE
SECURITIES ADMINISTRATOR, THE SELLER, THE SERVICER OR THE MASTER SERVICER.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE SECURITIES ADMINISTRATOR, THE DEPOSITOR,
THE MASTER SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED
IN THE TRUST AGREEMENT OR THE BASIC DOCUMENTS.
Certificate No. Certificate Percentage Interest of this
Certificate:______%
Cut-off Date: June 1, 2007
Date of Amended and Restated Trust First Payment Date:
Agreement: July 12, 2007 July 25, 2007
Servicer: Nationstar Mortgage LLC Certificate Interest Rate: Variable
NEWCASTLE MORTGAGE SECURITIES TRUST 2007-1
Evidencing a fractional undivided beneficial interest in the Owner Trust Estate, the property of which consists primarily of
the Mortgage Loans in Newcastle Mortgage Securities Trust 2007-1 (the "Trust"), a Delaware statutory trust formed by Bear Xxxxxxx
Asset Backed Securities I LLC, as depositor, pursuant to the Trust Agreement referred to below.
This certifies that ________________ is the registered owner of the Percentage Interest represented hereby.
The Trust was created pursuant to a Trust Agreement, dated as of July____, 2007, between the Depositor and Wilmington Trust
Company, as owner trustee (the "Owner Trustee", which term includes any successor entity under the Trust Agreement) (the "Short Form
Trust Agreement") as amended and restated by the Amended and Restated Trust Agreement dated as of July 12, 2007 (as amended and
supplemented from time to time, together with the Short Form Trust Agreement, the "Trust Agreement") among the Depositor, the Owner
Trustee and the Securities Administrator, a summary of certain of the pertinent provisions of which is set forth hereinafter. This
Certificate is issued under and is subject to the terms, provisions and conditions of the Trust Agreement, to which Trust Agreement
the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate is one of a duly authorized issue of Trust Certificates, Series 2007-1 (herein called the "Certificates")
issued under the Trust Agreement to which reference is hereby made for a statement of the respective rights thereunder of the
Depositor, the Owner Trustee and the Holders of the Certificates and the terms upon which the Certificates are executed and
delivered. All terms used in this Certificate which are defined in the Trust Agreement shall have the meanings assigned to them in
the Trust Agreement. The Owner Trust Estate consists of the Mortgage Loans in the Newcastle Mortgage Securities Trust 2007-1. The
rights of the Holders of the Certificates are subordinated to the rights of the Holders of the Notes, as set forth in the Indenture.
There will be distributed on the 25th day of each month or, if such 25th day is not a Business Day, the next Business Day
(each, a "Payment Date"), commencing on July 25, 2007, to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding such Payment Date (the "Record Date"), such Certificateholder's
Percentage Interest in the amount to be distributed to Certificateholders on such Payment Date.
The Certificateholder, by its acceptance of this Certificate, agrees that it will look solely to the funds on deposit in the
Note Account that have been released from the Lien of the Indenture for payment hereunder and that neither the Owner Trustee in its
individual capacity nor the Depositor is personally liable to the Certificateholders for any amount payable under this Certificate or
the Trust Agreement or, except as expressly provided in the Trust Agreement, subject to any liability under the Trust Agreement.
The Holder of this Certificate acknowledges and agrees that its rights to receive distributions in respect of this
Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of July 12, 2007, among the
Trust, Xxxxx Fargo Bank, N.A., as Securities Administrator and The Bank of New York, as Indenture Trustee (the "Indenture").
The Depositor and each Certificateholder, by acceptance of a Certificate, agree to treat, and to take no action inconsistent
with the treatment of, the Certificates for federal, state and local income tax purposes as an equity interest in the Trust.
Each Certificateholder, by its acceptance of a Certificate, covenants and agrees that such Certificateholder will not at any
time institute against the Depositor, or join in any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the Certificates, the Notes, the Trust Agreement or any of
the Basic Documents.
Distributions on this Certificate will be made as provided in the Trust Agreement by the Securities Administrator by wire
transfer or check mailed to the Certificateholder of record in the Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon. Except as otherwise provided in the Trust Agreement and notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the Securities Administrator of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the office or agency maintained by the Securities
Administrator for that purpose by the Trust, as provided in Section 3.09 of the Trust Agreement.
Notwithstanding the above, the final distribution on this Certificate will be made after due notice of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the office or agency specified in such notice.
The Mortgage Loans are subject to purchase in whole, but not in part, by the Majority Certificateholder on any Payment Date
on or after the Payment Date on which the sum of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the end of the
prior Due Period is 10% or less of the Cut-off Date Scheduled Principal Balance of the Mortgage Loans.
No transfer, sale, pledge or other disposition of a Certificate shall be made unless such transfer, sale, pledge or other
disposition is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in
accordance with said Act and laws. In the event of any such transfer, the Securities Administrator shall prior to such transfer
require the transferee to execute (A) either (i) (a) an investment letter in substantially the form attached to the Trust Agreement
as Exhibit C (or in such form and substance reasonably satisfactory to the Securities Administrator) which investment letter shall
not be an expense of the Trust, the Owner Trustee, the Master Servicer, the Securities Administrator, the Seller, the Servicer or the
Depositor and which investment letter states that, among other things, such transferee (1) is a "qualified institutional buyer" as
defined under Rule 144A, acting for its own account or the accounts of other "qualified institutional buyers" as defined under Rule
144A, and (2) is aware that the proposed transferor intends to rely on the exemption from registration requirements under the
Securities Act of 1933, as amended, provided by Rule 144A or (ii) (a) a written Opinion of Counsel acceptable to and in form and
substance satisfactory to the Securities Administrator that such transfer may be made pursuant to an exemption, describing the
applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of
Counsel shall not be an expense of the Trust, the Owner Trustee, the Master Servicer, the Securities Administrator, the Seller, the
Servicer or the Depositor and (b) the transferee executes a representation letter, substantially in the form of Exhibit E to the
Trust Agreement, and the transferor executes a representation letter, substantially in the form of Exhibit F to the Trust Agreement,
each acceptable to and in form and substance satisfactory to the Securities Administrator certifying the facts surrounding such
transfer, which representation letters shall not be an expense of the Trust, the Owner Trustee, the Master Servicer, the Securities
Administrator, the Seller, the Servicer or the Depositor and (B) the Certificate of Non-Foreign Status (in substantially the form
attached to the Trust Agreement as Exhibit D) acceptable to and in form and substance reasonably satisfactory to the Securities
Administrator, which certificate shall not be an expense of the Trust, the Owner Trustee, the Securities Administrator or the
Depositor. The Holder of a Certificate desiring to effect such transfer shall, and does hereby agree to, indemnify the Trust, the
Owner Trustee, the Indenture Trustee, the Securities Administrator, the Securities Administrator, the Servicer and the Depositor
against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
No transfer of Certificates or any interest therein shall be made to any Person unless the Owner Trustee, the Securities
Administrator, the Master Servicer and the Servicer are provided with an Opinion of Counsel which establishes to the satisfaction of
the Owner Trustee, the Securities Administrator, the Master Servicer and the Servicer that the purchase of Certificates is
permissible under applicable law, will not constitute or result in any prohibited transaction under ERISA or Section 4975 of the Code
and will not subject the Depositor, the Owner Trustee, the Master Servicer, the Securities Administrator, the Sponsor and the
Servicer to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the Code) in addition to
those undertaken in the Trust Agreement, which Opinion of Counsel shall not be an expense of the Depositor, the Owner Trustee, the
Master Servicer, the Securities Administrator, the Sponsor and the Servicer. In lieu of such Opinion of Counsel, a Person may provide
a certification in the form of Exhibit G to the Trust Agreement, which the Depositor, the Owner Trustee, the Securities
Administrator, the Master Servicer and the Servicer may rely upon without further inquiry or investigation. Neither an Opinion of
Counsel nor a certification will be required in connection with the initial transfer of any such Certificate by the Seller to an
affiliate of the Seller (in which case, the Seller or any affiliate thereof shall have deemed to have represented that such affiliate
is not a Plan or a Person investing Plan Assets) and the Owner Trustee shall be entitled to conclusively rely upon a representation
(which, upon the request of the Owner Trustee, shall be a written representation) from the Seller of the status of such transferee as
an affiliate of the Seller.
No offer, sale, transfer, pledge, hypothecation or other disposition (including any pledge, sale or transfer under a
repurchase transaction or securities loan) of any Certificate shall be made to any transferee unless, prior to such disposition, the
proposed transferor delivers to the Owner Trustee an Opinion of Counsel, rendered by a law firm generally recognized to be qualified
to opine concerning the tax aspects of asset securitization, to the effect that such transfer (including any disposition permitted
following any default under any pledge or repurchase transaction) will not cause the Trust to be (i) treated as an association
taxable as a corporation for federal income tax and relevant state income and franchise tax purposes or (ii) taxable as a "publicly
traded partnership" as defined in Treasury Regulation section 1.7704-1 for federal income tax purposes and relevant state franchise
or income tax purposes.
Reference is hereby made to the further provisions of this Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Owner Trustee, or
an authenticating agent by manual signature, this Certificate shall not entitle the Holder hereof to any benefit under the Trust
Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT
OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its individual capacity, has caused this
Certificate to be duly executed.
NEWCASTLE MORTGAGE SECURITIES TRUST 2007-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
Dated: July ____, 2007 By:_________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Securities Administrator
By: ____________________________________
Authorized Signatory
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in, the Depositor, the Seller, the Servicer, the
Indenture Trustee, the Master Servicer, the Securities Administrator, the Owner Trustee or any Affiliates of any of them and no
recourse may be had against such parties or their assets, except as expressly set forth or contemplated herein or in the Trust
Agreement or the Basic Documents. In addition, this Certificate is not guaranteed by any governmental agency or instrumentality and
is limited in right of payment to certain collections and recoveries with respect to the Mortgage Loans, all as more specifically set
forth herein and in the Trust Agreement. A copy of the Trust Agreement may be examined by any Certificateholder upon written request
during normal business hours at the principal office of the Sponsor and at such other places, if any, designated by the Sponsor.
The Trust Agreement permits the amendment thereof as specified below, provided that any amendment be accompanied by an
Opinion of Counsel to the Owner Trustee to the effect that such amendment complies with the provisions of the Trust Agreement and, if
[_______________] was not the Majority Certificateholder, 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 Holder, but the Owner Trustee shall be furnished with a letter from
the Rating Agencies that the amendment will not result in the downgrading or withdrawal of the rating then assigned to any Note or
the rating then assigned to any Note. If the purpose of the amendment is to prevent the imposition of any federal or state taxes at
any time that any Security is outstanding, it shall not be necessary to obtain the consent of the any Holder, but the Owner Trustee
shall be furnished with an Opinion of Counsel that such amendment is necessary or helpful to prevent the imposition of such taxes and
is not materially adverse to any Holder. If the purpose of the amendment is to add or eliminate or change any provision of the Trust
Agreement, other than as specified in the preceding two sentences, the amendment shall require either (a) a letter from the Rating
Agencies that the amendment will not result in the downgrading or withdrawal of the rating then assigned to any Note or the rating
then assigned to any Note or (b) the consent of Holders of the Certificates evidencing a majority of the Percentage Interests of the
Certificates and the Indenture Trustee; provided, however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the time of, payments received that are required to be distributed on any Certificate without the consent of the related
Certificateholder, or (ii) reduce the aforesaid percentage of Certificates the Holders of which are required to consent to any such
amendment without the consent of the Holders of all such Certificates then outstanding.
As provided in the Trust Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies
of the Securities Administrator maintained by the Trust, as provided in the Trust Agreement, accompanied by a written instrument of
transfer in form satisfactory to the Securities Administrator duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee. The initial Securities Administrator appointed under the Trust Agreement is
Xxxxx Fargo Bank, N.A.
Except as provided in the Trust Agreement, the Certificates are issuable only in a minimum Certificate Percentage Interest
of 10%. As provided in the Trust Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for
new Certificates of authorized denominations evidencing the same aggregate denomination, as requested by the Holder surrendering the
same. No service charge will be made for any such registration of transfer or exchange, but the Owner Trustee or the Securities
Administrator may require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Securities Administrator and any agent of the Owner Trustee or the Securities Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee, the
Securities Administrator or any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and the Trust created thereby shall terminate as and
when provided in accordance with the terms of the Trust Agreement.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably constituting and appointing
to transfer said Certificate on the books of the Securities Administrator, with full power of substitution in the premises.
Dated:
____________________________________*/
Signature Guaranteed:
__________________________*/
______________________
*/ NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Certificate in
every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by a member firm of the
New York Stock Exchange or a commercial bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the Securities Administrator:
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 statements should be mailed to ______________________________________________________________________
__________________________________________________________________________________________________________________
___________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT B
CERTIFICATE OF TRUST OF
NEWCASTLE MORTGAGE SECURITIES TRUST 2007-1
THIS Certificate of Trust of Newcastle Mortgage Securities Trust 2007-1 (the "Trust"), dated July ___, 2007, is being duly
executed and filed by Wilmington Trust Company, a Delaware banking corporation, as trustee, to form a statutory trust under the
Delaware Statutory Trust Act (12 Del. Code, § 3801 et seq.).
1. Name. The name of the statutory trust formed hereby is Newcastle Mortgage Securities Trust 2007-1.
2. Delaware Trustee. The name and business address of the trustee of the Trust in the State of Delaware is Wilmington Trust
Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust, has
executed this Certificate of Trust as of the date first above written.
July ___, 2007
Wilmington Trust Company,
not in its individual capacity but
solely as owner trustee under a Trust
Agreement dated as of
By:___________________________
Name:
Title:
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
The undersigned seller, as registered holder (the "Seller"), intends to transfer the Rule 144A Securities described
above to the undersigned buyer (the "Buyer").
1. In connection with such transfer and in accordance with the agreements pursuant to which the Rule 144A
Securities were issued, the Seller hereby certifies the following facts: Neither the Seller nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule 144A Securities, any interest in the Rule 144A Securities or
any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar security from, or otherwise approached or negotiated with
respect to the Rule 144A Securities, any interest in the Rule 144A Securities or any other similar security with, any person in any
manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Rule 144A Securities under the Securities Act of 1933, as amended (the "1933 Act"), or that
would render the disposition of the Rule 144A Securities a violation of Section 5 of the 1933 Act or require registration pursuant
thereto, and that the Seller has not offered the Rule 144A Securities to any person other than the Buyer or another "qualified
institutional buyer" as defined in Rule 144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the Owner Trustee, the Securities Administrator and
the Depositor (as defined in the Amended and Restated Trust Agreement (the "Agreement"), dated as of July 12, 2007, among Bear
Xxxxxxx Asset Backed Securities I LLC, as Depositor, Wilmington Trust Company, as Owner Trustee, and Xxxxx Fargo Bank, N.A., as
Securities Administrator) pursuant to Section 3.05 of the Agreement and The Bank of New York, as indenture trustee, as follows:
a. The Buyer understands that the Rule 144A Securities have not been registered under the 1933 Act or the
securities laws of any state.
b. The Buyer considers itself a substantial, sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of evaluating the merits and risks of investment in the Rule
144A Securities.
c. The Buyer has been furnished with all information regarding the Rule 144A Securities that it has
requested from the Seller, the Indenture Trustee, the Owner Trustee or the Master Servicer.
d. Neither the Buyer nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise
disposed of the Rule 144A Securities, any interest in the Rule 144A Securities or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition of the Rule 144A Securities, any interest in
the Rule 144A Securities or any other similar security from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other manner, or taken any other action, that would
constitute a distribution of the Rule 144A Securities under the 1933 Act or that would render the disposition of the Rule
144A Securities a violation of Section 5 of the 1933 Act or require registration pursuant thereto, nor will it act, nor has
it authorized or will it authorize any person to act, in such manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term is defined in Rule 144A under the 1933 Act
and has completed either of the forms of certification to that effect attached hereto as Annex 1 or Annex 2. The Buyer is
aware that the sale to it is being made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A Securities for its
own account or the accounts of other qualified institutional buyers, understands that such Rule 144A Securities may be
resold, pledged or transferred only (i) to a person reasonably believed to be a qualified institutional buyer that purchases
for its own account or for the account of a qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another exemption from registration under the 1933 Act.
3. The Buyer warrants and represents to, and covenants with, the Securities Administrator, the Master Servicer, the
Indenture Trustee, the Owner Trustee, the Servicer and the Depositor that either (1) the Buyer is (A) not an employee benefit plan
(within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), or a plan (within
the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986 ("Code")), which (in either case) is subject to ERISA or
Section 4975 of the Code (both a "Plan"), and (B) is not directly or indirectly purchasing the Rule 144A Securities on behalf of, as
investment manager of, as named fiduciary of, as trustee of, or with "plan assets" of a Plan, or (2) the Buyer understands that
registration of transfer of any Rule 144A Securities to any Plan, or to any Person acting on behalf of any Plan, will not be made
unless such Plan delivers an opinion of its counsel, addressed and satisfactory to the Securities Administrator, the Owner Trustee,
the Master Servicer, the Seller, the Servicer and the Depositor, to the effect that the purchase and holding of the Rule 144A
Securities by, on behalf of or with "plan assets" of any Plan is permissible under applicable law, would not constitute or result in
a prohibited transaction under ERISA or Section 4975 of the Code, and would not subject the Depositor, the Owner Trustee, the
Securities Administrator, the Seller, the Servicer or the Master Servicer to any obligation or liability (including liabilities under
ERISA or Section 4975 of the Code) in addition to those undertaken in the Agreement, which Opinion of Counsel shall not be an expense
of the Depositor, the Owner Trustee, the Securities Administrator, the Seller, the Servicer or the Master Servicer.
4. This document may be executed in one or more counterparts and by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed to be an original; such counterparts, together, shall constitute one
and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as of the date set forth below.
____________________________________ ____________________________________
Print Name of Seller Print Name of Buyer
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. _______________________________ No. _______________________________
Date: ________________________________ Date: ________________________________
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR BUYERS OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows in connection with the Rule 144A Investment Representation to which this
Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial Officer, Senior Vice President or other executive
officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a discretionary basis
$_________________(1) in securities (except for the excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii) the Buyer satisfies the criteria in the category
marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank, savings and loan association or
similar institution), Massachusetts or similar business trust, partnership, or charitable
organization described in Section 501(c)(3) of the Internal Revenue Code.
___ Bank. The Buyer (a) is a national bank or banking institution organized under the laws of any
State, territory or the District of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking commission or similar official or is
a foreign bank or equivalent institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is supervised and examined by
a State or Federal authority having supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements.
___ Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose primary and predominant business
activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies
and which is subject to supervision by the insurance commissioner or a similar official or agency
of a State or territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
___ Investment Adviser. The Buyer is an investment adviser registered under the Investment Advisers Act
of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust company and whose
participants are exclusively (a) plans established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political subdivisions, for the
benefit of its employees, or (b) employee benefit plans within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, but is not a trust fund that includes as
participants individual retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities of issuers that are affiliated with the Buyer, (ii)
securities that are part of an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer, (iii) bank deposit Notes
and certificates of deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the
Buyer, the Buyer used the cost of such securities to the Buyer and did not include any of the securities referred to in the preceding
paragraph. Further, in determining such aggregate amount, the Buyer may have included securities owned by subsidiaries of the Buyer,
but only if such subsidiaries are consolidated with the Buyer in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries are managed under the Buyer's direction. However, such
securities were not included if the Buyer is a majority-owned, consolidated subsidiary of another enterprise and the Buyer is not
itself a reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and understands that the Seller to it and other parties
related to the Certificates are relying and will continue to rely on the statements made herein because one or more sales to the
Buyer may be in reliance on Rule 144A.
Will the Buyer be purchasing the Rule 144A
________ _________
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees that, in connection with any purchase of securities
sold to the Buyer for the account of a third party (including any separate account) in reliance on Rule 144A, the Buyer will only
purchase for the account of a third party that at the time is a "qualified institutional buyer" within the meaning of Rule 144A. In
addition, the Buyer agrees that the Buyer will not purchase securities for a third party unless the Buyer has obtained a current
representation letter from such third party or taken other appropriate steps contemplated by Rule 144A to conclude that such third
party independently meets the definition of "qualified institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this certification is made of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase of Rule 144A Securities will constitute a reaffirmation of this
certification as of the date of such purchase.
________________________________________
Print Name of Buyer
By: __________________________________
Name:
Title:
Date: __________________________________
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR BUYERS THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows in connection with the Rule 144A Investment Representation to which this
Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial Officer or Senior Vice President of the
Buyer or, if the Buyer is a "qualified institutional buyer" as that term is defined in Rule 144A under the Securities Act of 1933
("Rule 144A") because Buyer is part of a Family of Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified institutional buyer" as defined in SEC Rule 144A
because (i) the Buyer is an investment company registered under the Investment Company Act of 1940, and (ii) as marked below, the
Buyer alone, or the Buyer's Family of Investment Companies, owned at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment Companies, the cost of such securities was used.
____ The Buyer owned $____________ in securities (other than the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned in the aggregate
$________________ in securities (other than the excluded securities referred to below) as of
the end of the Buyer's most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or more registered investment companies (or
series thereof) that have the same investment adviser or investment advisers that are affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of issuers that are affiliated with the
Buyer or are part of the Buyer's Family of Investment Companies, (ii) bank deposit Notes and certificates of deposit, (iii) loan
participations, (iv) repurchase agreements, (v) securities owned but subject to a repurchase agreement and (vi) currency, interest
rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each of the parties to which this certification is
made are relying and will continue to rely on the statements made herein because one or more sales to the Buyer will be in reliance
on Rule 144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which this certification is made of any changes in the
information and conclusions herein. Until such notice, the Buyer's purchase of Rule 144A Securities will constitute a reaffirmation
of this certification by the undersigned as of the date of such purchase.
___________________________________________
Print Name of Buyer
By: ______________________________________
Name:
Title:
IF AN ADVISER:
___________________________________________
Print Name of Buyer
Date: ____________________________________
EXHIBIT D
CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status ("certificate") is delivered pursuant to Section 3.03 of the Amended and Restated
Trust Agreement, dated as of July 12, 2007 (the "Trust Agreement"), among Bear Xxxxxxx Asset Backed Securities I LLC, as Depositor,
Wilmington Trust Company, as Owner Trustee and Xxxxx Fargo Bank, N.A., as Securities Administrator, in connection with the
acquisition of, transfer to or possession by the undersigned, whether as beneficial owner for U.S. federal income tax purposes (the
"Beneficial Owner"), or nominee on behalf of the Beneficial Owner of the Certificates, Series 2007-1 (the "Certificate"). Capitalized
terms used but not defined in this certificate have the respective meanings given them in the Trust Agreement.
Each holder must complete Part I, Part II (if the holder is a nominee), and in all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form W-9 relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the Internal Revenue Code (relating to withholding tax on
foreign partners) do not apply in respect of the Certificate held by the undersigned, the undersigned hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is ) not a non-resident alien for purposes of U.S. income taxation;
2. My (The Beneficial Owner's) name and home address are:
; and
3. My (The Beneficial Owner's) U.S. taxpayer identification number (Social Security Number) is
B. Corporate, Partnership or Other Entity as Beneficial Owner
1. ___________________ (Name of the Beneficial Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are defined in the Code and Treasury
Regulations;
2. The Beneficial Owner's office address and place of incorporation (if applicable) is
; and
3. The Beneficial Owner's U.S. employer identification number is _________________.
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the undersigned certifies that this certificate has been made in
reliance upon information contained in:
an IRS Form W-9
a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned agrees to notify the Trust at least thirty (30) days
prior to the date that the form relied upon becomes obsolete, and (ii) in connection with change in Beneficial Owners, the
undersigned agrees to submit a new Certificate of Non-Foreign Status to the Trust promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees to notify the Trust within sixty (60) days of the date
that the Beneficial Owner becomes a foreign person. The undersigned understands that this certificate may be disclosed to the
Internal Revenue Service by the Trust and any false statement contained therein could be punishable by fines, imprisonment or both.
Under penalties of perjury, I declare that I have examined this certificate and to the best of my knowledge and belief it is
true, correct and complete and will further declare that I will inform the Trust of any change in the information provided above,
and, if applicable, I further declare that I have the authority* to sign this document.
______________________________
Name
______________________________
Title (if applicable)
______________________________
Signature and Date
*Note: If signed pursuant to a power of attorney, the power of attorney must accompany this certificate.
EXHIBIT E
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: Newcastle Mortgage Securities Trust 2007-1 Trust Certificates,
Series 2007-1 (the "Certificates")
___________________________________________________________________
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned Certificates, we certify that (a) we understand that the
Certificates are not being registered under the Securities Act of 1933, as amended (the "Act"), or any state securities laws and are
being transferred to us in a transaction that is exempt from the registration requirements of the Act and any such laws, (b) we are
an "accredited investor," as defined in Regulation D under the Act, and have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of investments in the Certificates, (c) we have had the opportunity to
ask questions of and receive answers from the Sponsor concerning the purchase of the Certificates and all matters relating thereto or
any additional information deemed necessary to our decision to purchase the Certificates, (d) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as amended, or a plan that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code"), nor are we acting on behalf of any such plan, (e) we are acquiring the
Certificates for investment for our own account and not with a view to any distribution of such Certificates (but without prejudice
to our right at all times to sell or otherwise dispose of the Certificates in accordance with clause (g) below), (f) we have not
offered or sold any Certificates to, or solicited offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action which would result in a violation of Section 5 of the Act,
and (g) we will not sell, transfer or otherwise dispose of any Certificates unless (1) such sale, transfer or other disposition is
made pursuant to an effective registration statement under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory to the addressees of this certificate that such sale,
transfer or other disposition may be made pursuant to an exemption from the Act, (2) the purchaser or transferee of such Certificate
has executed and delivered to you a certificate to substantially the same effect as this certificate, and (3) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth in the Trust Agreement.
Very truly yours,
[TRANSFEREE]
By: ______________________________________
Authorized Officer
EXHIBIT F
TRANSFEROR CERTIFICATE
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: Proposed Transfer of Trust Certificates,
Newcastle Mortgage Securities Trust 2007-1
___________________________________________________
Gentlemen:
This certification is being made by ____________________ (the "Transferor") in connection with the proposed Transfer to
_____________________ (the "Transferee") of a trust certificate (the "Trust Certificate") representing ___% fractional undivided
interest in Newcastle Mortgage Securities Trust 2007-1 (the "Trust") created pursuant to a Trust Agreement, dated as of July ___,
2007 (such agreement, as amended by the Amended and Restated Trust Agreement dated July 12, 2007, being referred to herein as the
"Trust Agreement") among Bear Xxxxxxx Asset Backed Securities I LLC (the "Company"), Wilmington Trust Company, as Owner Trustee (the
"Owner Trustee") and Xxxxx Fargo Bank, N.A. (the "Securities Administrator"). Initially capitalized terms used but not defined herein
have the meanings assigned to them in the Trust Agreement. The Transferor hereby certifies, represents and warrants to, and covenants
with, the Company, the Owner Trustee and the Securities Administrator that:
Neither the Transferor nor anyone acting on its behalf has (a) offered, pledged, sold, disposed of or otherwise transferred
any Trust Certificate, any interest in any Trust Certificate or any other similar security to any person in any manner, (b) has
solicited any offer to buy or to accept a pledge, disposition or other transfer of any Trust Certificate, any interest in any Trust
Certificate or any other similar security from any person in any manner, (c) has otherwise approached or negotiated with respect to
any Trust Certificate, any interest in any Trust Certificate or any other similar security with any person in any manner, (d) has
made any general solicitation by means of general advertising or in any other manner, or (e) has taken any other action, that (as to
any of (a) through (e) above) would constitute a distribution of the Trust Certificates under the Securities Act of 1933 (the "Act"),
that would render the disposition of any Trust Certificate a violation of Section 5 of the Act or any state securities law, or that
would require registration or qualification pursuant thereto. The Transferor will not act in any manner set forth in the foregoing
sentence with respect to any Trust Certificate. The Transferor has not and will not sell or otherwise transfer any of the Trust
Certificates, except in compliance with the provisions of the Trust Agreement.
Date: ________________________________ ________________________________
Name of Transferor
________________________________
Signature
________________________________
Name
________________________________
Title
EXHIBIT G
[DATE]
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: Proposed Transfer of Trust Certificates,
Newcastle Mortgage Securities Trust 2007-1 (the "Certificates")
______________________________________________________________________
Gentlemen:
This certification is being made by _______________ (the "Transferee") in connection with the proposed Transfer by
______________ (the "Transferor") of a trust certificate (the "Trust Certificate") representing __% fractional undivided interest in
Newcastle Mortgage Securities Trust 2007-1 (the "Trust") created pursuant to a Trust Agreement, dated as of July ___, 2007 (such
agreement, as amended by the Amended and Restated Trust Agreement dated July 12, 2007, being referred to herein as the "Trust
Agreement") among Bear Xxxxxxx Asset Backed Securities I LLC (the "Company"), Wilmington Trust Company, as Owner Trustee (the "Owner
Trustee") and Xxxxx Fargo Bank, N.A. (the "Securities Administrator"). Initially capitalized terms used but not defined herein have
the meanings assigned to them in the Trust Agreement. The Transferee hereby certifies, represents and warrants to, and covenants
with, the Company, the Owner Trustee and the Securities Administrator that:
(i) either (a) or (b) is satisfied, as marked below:
___ a. The Transferee is not any employee benefit plan or other arrangement subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986 (the "Code") (each, a
"Plan"), a Person acting, directly or indirectly, on behalf of a Plan or any Person acquiring such Certificates with "plan assets" of
a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. § 2510.3-101; or
___ b. The Transferee is a Person acting, directly or indirectly, on behalf of a Plan or any Person acquiring such
Certificates with "plan assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. §
2510.3-101 and will provide the Depositor, the Owner Trustee, the Securities Administrator, the Master Servicer and the Servicer with
an Opinion of Counsel, satisfactory to the Depositor, the Owner Trustee, the Securities Administrator, the Master Servicer and the
Servicer, to the effect that the purchase and holding of a Certificate by or on behalf of the Transferee is permissible under
applicable law, will not constitute or result in a prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments) and will not subject the Depositor, the Owner Trustee, the Master Servicer, the
Securities Administrator, the Sponsor and the Servicer to any obligation or liability (including liabilities under ERISA or Section
4975 of the Code) in addition to those undertaken in the Trust Agreement, which opinion of counsel shall not be an expense of the
Depositor, the Owner Trustee, the Master Servicer, the Securities Administrator, the Sponsor and the Servicer; and
(ii) the Transferee is familiar with the prohibited transaction restrictions and fiduciary responsibility requirements of
Sections 406 and 407 of ERISA and Section 4975 of the Code and understands that each of the parties to which this certification is
made is relying and will continue to rely on the statements made in this paragraph.
Very truly yours,
By: _________________________________________
Name:
Title:
EXHIBIT H
FORM OF TRANSFEREE CERTIFICATE
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: Proposed Transfer of Trust Certificates,
Newcastle Mortgage Securities Trust 2007-1
___________________________________________________
Gentlemen:
This certification is being made by ____________________ (the "Transferee") in connection with the proposed Transfer of a
trust certificate (the "Trust Certificate") representing ___% fractional undivided interest in Newcastle Mortgage Securities Trust
2007-1 (the "Trust") created pursuant to a Trust Agreement, dated as of July ___, 2007 (such agreement, as amended by the Amended and
Restated Trust Agreement dated July 12, 2007, being referred to herein as the "Trust Agreement") among Bear Xxxxxxx Asset Backed
Securities I LLC (the "Company"), Wilmington Trust Company, as Owner Trustee (the "Owner Trustee") and Xxxxx Fargo Bank, N.A. (the
"Securities Administrator"). Initially capitalized terms used but not defined herein have the meanings assigned to them in the Trust
Agreement. The Transferee hereby certifies, represents and warrants to, and covenants with, the Company, the Owner Trustee and the
Securities Administrator that:
The Transferee (i) is a REIT, a Qualified REIT Subsidiary or an entity that is wholly-owned by a REIT or a Qualified REIT
Subsidiary and disregarded for federal income tax purposes within the meaning of Section 856(a) or Section 856(i) of the Code, (ii)
shall maintain such status at all times that it is the beneficial owner of the Trust Certificates, (iii) shall remain the beneficial
owner of a 100% undivided interest in the Trust Certificates until it transfers such Trust Certificates and (iv) shall transfer the
Trust Certificates only in compliance with the Trust Agreement.
Date: ________________________________ ________________________________
Name of Transferor
________________________________
Signature
________________________________
Name
________________________________
Title
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000 in securities unless Buyer is a dealer, and, in
that case, Buyer must own and/or invest on a discretionary basis at least $10,000,000 in securities.
