BEAR STEARNS ASSET BACKED SECURITIES I LLC, as Depositor WILMINGTON TRUST COMPANY, as Owner Trustee and LASALLE BANK NATIONAL ASSOCIATION, not in its individual capacity, but solely in its capacity as Securities Administrator
BEAR
XXXXXXX ASSET BACKED SECURITIES I LLC,
as
Depositor
WILMINGTON
TRUST COMPANY,
as
Owner
Trustee
and
LASALLE
BANK NATIONAL ASSOCIATION,
not
in
its individual capacity, but solely in its capacity as Securities
Administrator
AMENDED
AND RESTATED
Dated
as
of April 30, 2007
Trust
Certificates,
Series
2007-1
Table
of Contents
ARTICLE
I
Definitions
|
Section
1.01
|
Definitions
|
|
Section
1.02
|
Other
Definitional Provisions
|
ARTICLE
II
Organization
|
Section
2.01
|
Name
|
|
Section
2.02
|
Office
|
|
Section
2.03
|
Purposes
and Powers
|
|
Section
2.04
|
Appointment
of Owner Trustee
|
|
Section
2.05
|
Initial
Capital Contribution of Owner Trust Estate
|
|
Section
2.06
|
Issuance
of Initial Certificates
|
|
Section
2.07
|
Declaration
of Trust
|
|
Section
2.08
|
Liability
of the Holders of the Certificates
|
|
Section
2.09
|
Title
to Trust Property
|
|
Section
2.10
|
Situs
of Trust
|
|
Section
2.11
|
Representations
and Warranties of the Depositor
|
|
Section
2.12
|
Investment
Company
|
ARTICLE
III
Conveyance
of the Mortgage Loans; Certificates
|
Section
3.01
|
Initial
Ownership
|
|
Section
3.02
|
The
Certificates
|
|
Section
3.03
|
Execution,
Authentication and Delivery of the Certificates
|
|
Section
3.04
|
Registration
of and Limitations on Transfers and Exchanges of the
Certificates.
|
|
Section
3.05
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
|
Section
3.06
|
Persons
Deemed Certificateholders
|
|
Section
3.07
|
ERISA
Restrictions
|
|
Section
3.08
|
Access
to List of Certificateholders’ Names and Addresses
|
|
Section
3.09
|
Maintenance
of Office or Agency
|
|
Section
3.10
|
Certificate
Paying Agent
|
|
Section
3.11
|
Distributions
on the Certificates
|
ARTICLE
IV
Authority
and Duties of Owner Trustee
|
Section
4.01
|
General
Authority
|
|
Section
4.02
|
General
Duties
|
|
Section
4.03
|
Action
upon Instruction
|
|
Section
4.04
|
No
Duties Except as Specified under Specified Documents or in
Instructions
|
|
Section
4.05
|
Restrictions
|
|
Section
4.06
|
Prior
Notice to Certificateholders with Respect to Certain
Matters
|
|
Section
4.07
|
Action
by Certificateholders with Respect to Certain Matters
|
|
Section
4.08
|
Action
by Certificateholders with Respect to Bankruptcy
|
|
Section
4.09
|
Restrictions
on Certificateholders’ Power
|
|
Section
4.10
|
Majority
Control
|
|
Section
4.11
|
Optional
Redemption
|
ARTICLE
V
Application
of Trust Funds
|
Section
5.01
|
Certificate
Distribution Account
|
|
Section
5.02
|
Distributions
|
|
Section
5.03
|
Method
of Payment
|
|
Section
5.04
|
Statements
to Certificateholders
|
ARTICLE
VI
Concerning
the Owner Trustee
|
Section
6.01
|
Acceptance
of Trusts and Duties
|
|
Section
6.02
|
Furnishing
of Documents
|
|
Section
6.03
|
Representations
and Warranties
|
|
Section
6.04
|
Reliance;
Advice of Counsel
|
|
Section
6.05
|
Not
Acting in Individual Capacity
|
|
Section
6.06
|
Owner
Trustee Not Liable for Certificates or Related Documents
|
|
Section
6.07
|
Owner
Trustee May Own Certificates and Notes
|
|
Section
6.08
|
Payments
from Owner Trust Estate
|
|
Section
6.09
|
Liability
of Certificate Registrar and Certificate Paying Agent
|
ARTICLE
VII
Compensation
of Owner Trustee
|
Section
7.01
|
Owner
Trustee’s Fees and Expenses
|
|
Section
7.02
|
Indemnification
|
ARTICLE
VIII
Termination
of Trust Agreement
|
Section
8.01
|
Termination
of Trust Agreement
|
ARTICLE
IX
Successor
Owner Trustees and Additional Owner Trustees
|
Section
9.01
|
Eligibility
Requirements for Owner Trustee
|
|
Section
9.02
|
Replacement
of Owner Trustee
|
|
Section
9.03
|
Successor
Owner Trustee
|
|
Section
9.04
|
Merger
or Consolidation of Owner Trustee
|
|
Section
9.05
|
Appointment
of Co-Trustee or Separate Trustee
|
ARTICLE
X
Miscellaneous
|
Section
10.01
|
Amendments
|
|
Section
10.02
|
No
Legal Title to Owner Trust Estate
|
|
Section
10.03
|
Limitations
on Rights of Others
|
|
Section
10.04
|
Notices
|
|
Section
10.05
|
Severability
|
|
Section
10.06
|
Separate
Counterparts
|
|
Section
10.07
|
Successors
and Assigns
|
|
Section
10.08
|
No
Petition
|
|
Section
10.09
|
No
Recourse
|
|
Section
10.10
|
Headings
|
|
Section
10.11
|
GOVERNING
LAW
|
|
Section
10.12
|
Integration
|
|
Section
10.13
|
Obligations
|
|
Section
10.14
|
Benefits
of Trust Agreement
|
|
Section
10.15
|
Tax
Matters
|
EXHIBITS
|
Exhibit
A - Form of Certificates
|
|
|
Exhibit
B - Certificate of Trust of Bear Xxxxxxx Second Lien Trust 2007-1
|
|
|
Exhibit
C - Form of Transfer Affidavit
|
|
|
Exhibit
D - Form of Transferor Certificate
|
|
|
Exhibit
E - Form of Investment Letter (Non-Rule 144A)
|
|
|
Exhibit
F - Form of Rule 144A and Related Matters Certificate
|
This
Amended and Restated Trust Agreement, dated as of April 30, 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 LaSalle Bank National Association, not in its
individual capacity, but solely in its capacity as securities administrator
(the
“Securities Administrator”).
WITNESSETH
THAT:
In
consideration of the mutual agreements herein contained, the Depositor and
the
Owner Trustee agree as follows:
WHEREAS,
pursuant to the Sale and Servicing Agreement entered into simultaneously with
this Amended and Restated Trust Agreement, the Depositor intends to sell,
transfer and assign to a Delaware statutory trust created hereunder certain
HELOCs, mortgage loans and related assets (together, the “Collateral”), which
statutory trust would then pledge such Collateral under an indenture in order
to
secure the issuance of its Mortgage-Backed Notes, Series 2007-1, Class I-A,
Class I-M-1, Class I-M-2, Class I-M-3, Class I-M-4, Class I-B-1, Class I-B-2,
Class I-B-3 and I-B-4 Notes (collectively, the “Group I Notes”), Class II-A,
Class II-M-1, Class II-M-2, Class II-M-3, Class II-M-4, Class II-M-5, Class
II-M-6 and Class II-B-1 Notes (collectively, the “Group II Notes”), Class III-A,
Class III-M-1, Class III-M-2, Class III-M-3, Class III-M-4, Class III-M-5,
Class
III-M-6 and Class III-B-1 Notes (collectively, the “Group III Notes”; and
collectively with the Group I Notes and Group II Notes, the “Notes”), the net
proceeds of which would be applied toward the purchase of the
Collateral.
WHEREAS,
the Depositor and the Owner Trustee have previously entered into the original
Trust Agreement dated as of April 27, 2007 (the “Trust Agreement”).
WHEREAS,
the parties hereto desire to amend the terms of and restate the Trust
Agreement.
In
consideration of the mutual agreements herein contained, the Depositor, the
Owner Trustee and the Securities Administrator, solely for purposes of its
agreement to serve as Certificate Registrar and Certificate Paying Agent, 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 as of April 30, 2007, among Bear Xxxxxxx Second Lien Trust
2007-1, as issuing entity (the “Issuing Entity”), Citibank, N.A., as indenture
trustee (the “Indenture Trustee”), and the 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 “Bear Xxxxxxx Second Lien
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:
(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 Collateral pursuant to the
Indenture and to hold, manage and distribute to the Certificateholders pursuant
to Section 5.02 herein, any portion of the Collateral released from the Lien
of,
and remitted to, the Trust pursuant to the Indenture;
(iv) to
enter
into and perform its obligations under the Basic Documents to which it is to
be
a party;
(v) if
directed by holders of Certificates representing more than 50% of the beneficial
interests in the Trust, sell the Owner Trust Estate subsequent to the discharge
of the Indenture, all for the benefit of the holders of the
Certificates;
(vi) to
have
certain portions of the Owner Trust Estate specified in the Indenture qualify
as, and conduct the affairs of the Owner Trust Estate so that it qualifies
as,
one or more REMICs formed pursuant to the Indenture;
(vii) to
engage
in those activities, including entering into agreements, that are necessary,
suitable or convenient to accomplish the foregoing or are incidental thereto
or
connected therewith; and
(viii) subject
to compliance with the Basic Documents, to engage in such other activities
as
may be required in connection with conservation of the Owner Trust Estate and
the making of distributions to the Certificateholders, the Noteholders and
Note
Insurer.
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
and in the Statutory Trust Statute.
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 $2 in exchange for which the Owner Trustee
shall issue to the Depositor the Class I-S Certificates.
The
Owner Trustee hereby acknowledges receipt in trust from the Depositor, as of
the
Closing Date, of the foregoing contribution which shall constitute the initial
corpus of the Trust Estate and shall be deposited in the Certificate
Distribution Account. The Depositor shall pay organizational expenses of the
Trust as they may arise or shall, upon the request of the Owner Trustee,
promptly reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee. The Depositor’s payment of such amounts will not increase the
Certificate Principal Balance of the Class I-S Certificates.
Section
2.06 Issuance
of Initial Certificates.
Upon
the formation of the Trust by the initial contribution by the Depositor pursuant
to Section 2.05, the Owner Trustee will issue the Class I-S Certificates to
the
Depositor.
Section
2.07 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.
No later than the Closing Date, the Owner Trustee shall cause the filing of
the
Certificate of Trust with the Secretary of State. 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
2.08 Liability
of the Holders of the Certificates.
The
Holders of the Certificates shall have the same limitation of personal liability
as common stockholders in a corporation, under the Delaware General Corporation
Law.
Section
2.09 Title
to Trust Property.
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
2.10 Situs
of Trust.
The
Trust will be located and administered in Delaware, Maryland, Minnesota,
Illinois or New York. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the Delaware, Maryland, Minnesota,
Illinois 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.
Payments will be received by the Trust only in Delaware, Maryland, Minnesota,
Illinois or New York, and payments will be made by the Trust only from Delaware,
Maryland, Minnesota, Illinois or New York. The only office of the Trust
maintained by the Owner Trustee will be at the Corporate Trust Office in
Delaware.
Section
2.11 Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to the Owner Trustee and the Note
Insurer that:
(i) The
Depositor is duly organized and validly existing as a limited liability company
in good standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted.
(ii) The
Depositor is duly qualified to do business as a foreign corporation in good
standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its property or the conduct
of
its business shall require such qualifications and in which the failure to
so
qualify would have a material adverse effect on the business, properties, assets
or condition (financial or other) of the Depositor.
(iii) The
Depositor has the power and authority to execute and deliver this Trust
Agreement and to carry out its terms; the Depositor has full power and authority
to convey and assign the property to be conveyed and assigned to and deposited
with the Trust as part of the Owner Trust Estate and the Depositor has duly
authorized such conveyance and assignment and deposit to the Trust by all
necessary corporate action; and the execution, delivery and performance of
this
Trust Agreement have been duly authorized by the Depositor by all necessary
corporate action.
(iv) The
consummation of the transactions contemplated by this Trust Agreement and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or by-laws of
the
Depositor, or any indenture, agreement or other instrument to which the
Depositor is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any
such indenture, agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor’s knowledge,
any order, rule or regulation applicable to the Depositor of any court or of
any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
(v) The
Trust
is not required to register as an investment company under the Investment
Company Act and is not under the control of a Person required to so
register.
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 Initial
Ownership.
Upon
the formation of the Trust by the contribution by the Depositor pursuant to
Section 2.05 hereof and until the conveyance of the Mortgage Loans pursuant
to
Section 2.01 of the Sale and Servicing Agreement and the issuance of the Class
R, Class I-E, Class C and Class X Certificates, and thereafter except as
otherwise permitted hereunder, the Depositor shall be the sole
Certificateholder.
Section
3.02 The
Certificates.
The
Group
I Certificates shall initially be issued as four certificates in definitive,
fully registered form and shall initially be registered in the names set forth
in Exhibits A-1 through A-4.
The
Group II Certificates shall initially be issued as four certificates in
definitive, fully registered form and shall initially be registered in the
names
set forth in Exhibits A-3 through A-5. The Group III Certificates shall
initially be issued as three certificates in definitive, fully registered form
and shall initially be registered in the names set forth in Exhibits A-3 through
A-5. The Class X Certificates will be issued as single certificates and will
not
have a Certificate Principal Balance. The Class X Certificates will
not represent Regular Interests in any REMIC created pursuant to the
Indenture.
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 by
the
Securities Administrator in the manner provided in Section 3.03. A Certificate
bearing the manual or facsimile signatures of individuals who were, at the
time
when such signatures shall have been affixed, authorized to sign on behalf
of
the Trust, shall be validly issued and entitled to the benefit of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates. 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 3.04.
Section
3.03 Execution,
Authentication and Delivery of the Certificates.
Concurrently with the sale of the Mortgage Loans to the Trust pursuant to the
Sale and Servicing Agreement, the Owner Trustee shall cause the Certificates
issued hereunder to be executed on behalf of the Trust and the Securities
Administrator shall cause the Certificates to be authenticated and delivered,
as
set forth in Exhibits A-1 through A-4, to or upon the written order of the
Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor, in the authorized
denomination. The Certificates shall not entitle its Holder to any benefits
under this Agreement or be valid for any purpose unless there shall appear
on
such Certificate a certificate of authentication substantially in the form
set
forth in Exhibits A-1 through A-3 hereto, respectively, 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.
A
Certificate shall be dated the date of its authentication.
Section
3.04 Registration
of and Limitations on Transfers and Exchanges of the
Certificates.
(a) The
Securities Administrator is hereby appointed as the Certificate Registrar of
the
Trust. The Certificate Registrar shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 3.09, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided; provided, however, that no
related Residual Certificates, related Class I-E Certificates or related Class
C
Certificates shall be issued in any such transfer and exchange representing
less
than a 100% Percentage Interest in such Certificate. If the Certificate
Registrar resigns or is removed, the Depositor shall appoint a successor
Certificate Registrar.
(b) Subject
to satisfaction of the conditions set forth below, with respect to the
Certificates, upon surrender for registration of transfer of Certificates at
the
office or agency maintained pursuant to Section 3.09, the Owner Trustee and
the
Certificate Register shall execute, authenticate and deliver in the name of
the
designated transferee, a new Certificate evidencing the Percentage Interest
of
the Certificate so surrendered and dated the date of authentication by the
Certificate Registrar. 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 Certificate Registrar duly executed by the Holder or such Holder’s attorney
duly authorized in writing. Each Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the
Certificate Registrar in accordance with its customary practice.
No
service charge shall be made for any registration of transfer or exchange of
the
Certificates, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may
be
imposed in connection with any transfer or exchange of the Certificates or
any
other expense arising as a result of any registration of transfer or
exchange.
Except
for the initial issuance of the Residual Certificates on the Closing Date,
no
Person shall become a Certificateholder of the Residual Certificates until
the
requirements of section 3.04(g) shall have been complied with.
The
preceding provisions of this Section notwithstanding, the Owner Trustee shall
not make and the Certificate Registrar shall not register any transfer or
exchange of a related Residual Certificate, related Class I-E Certificate or
related Class C Certificates for a period of 15 days preceding the due date
for
any payment with respect to such Certificates.
(c) The
Certificates shall be assigned, transferred, exchanged, pledged, financed,
hypothecated or otherwise conveyed (collectively, for purposes of this Section
3.04 and any other Section referring to the Certificates, “transferred” or a
“transfer”) only in accordance with this Section 3.04.
(d) No
transfer of a Certificate shall be made unless such transfer is made pursuant
to
an effective registration statement under the Securities Act and any applicable
state securities laws or is exempt from the registration requirements under
the
Securities Act and such state securities laws. In the event that a transfer
is
to be made in reliance upon an exemption from the Securities Act and such laws,
in order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer and such Certificateholder’s
prospective transferee shall each certify to the Securities Administrator in
writing the facts (or shall be deemed to certify in the case of a Book-Entry
Certificate) surrounding the transfer by (x)(i) the delivery to the Securities
Administrator by the Certificateholder desiring to effect such transfer of
a
certificate substantially in the form set forth in Exhibit D (the “Transferor
Certificate”) and (ii) the delivery by the Certificateholder’s prospective
transferee of (A) a letter in substantially the form of Exhibit E (the
“Investment Letter”) if the prospective transferee is an Institutional
Accredited Investor or (B) a letter in substantially the form of Exhibit F
(the
“Rule 144A and Related Matters Certificate”) if the prospective transferee is a
“qualified institutional buyer” as defined in Rule 144A under the Securities Act
of 1933, as amended (the “Securities Act”) or (y) there shall be delivered to
the Securities Administrator an Opinion of Counsel addressed to the Indenture
Trustee and the Securities Administrator that such transfer may be made pursuant
to an exemption from the Securities Act, which Opinion of Counsel shall not
be
an expense of the Depositor, the Seller, the Master Servicer, the Securities
Administrator
or the
Indenture Trustee. The Depositor shall provide to any Holder of a Certificate
and any prospective transferee designated by any such Holder, information
regarding the related Certificates and the Mortgage Loans and such other
information as shall be necessary to satisfy the condition to eligibility set
forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Indenture Trustee and the Securities
Administrator shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Depositor such information regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Estate as the Depositor shall reasonably
request to meet its obligation under the preceding sentence. Each Holder of
a
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Indenture Trustee, the Depositor, the Sellers, the Owner Trustee,
the Securities Administrator and the Master Servicer 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.
(e) With
respect to the transfer of a related
Class
I-E, related Class C, related Class X or related Residual Certificate
such
Person shall comply with the provisions of Section 3.07, as applicable, relating
to the ERISA restrictions with respect to the acceptance or acquisition of
such
related Class I-E, related Class C, related Class X or related Residual
Certificate.
(f) For
so
long as any of the Certificates are “restricted securities” within the meaning
of Rule 144(a)(3) under the Securities Act, the Certificate Registrar agrees
to
cooperate with, and act in accordance with the direction of, the Depositor
in
providing to any Certificateholders and to any prospective purchaser of
Certificates designated by such Certificateholder, upon the request of such
Certificateholder or prospective purchaser, any information in the Certificate
Registrar’s possession and required to be provided to such holder or prospective
purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the
Securities Act. Any reasonable, out-of-pocket expenses incurred by the
Certificate Registrar in providing such information shall be reimbursed by
the
Depositor.
(g) Each
Person that has or that acquires any Ownership Interest in any Residual
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions and to have
irrevocably appointed the Certificate Registrar or its designee as its
attorney-in-fact to negotiate the terms of any mandatory sale under clause
(v)
below and to execute all instruments of transfer and to do all other things
necessary in connection with any such sale, and the rights of each Person
acquiring any Ownership Interest in the Residual Certificates are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Owner Trustee
and
the Certificate Registrar of
any
change or impending change in its status as a Permitted Transferee.
(ii) No
Person
shall acquire an Ownership Interest in a Residual Certificate unless such
Ownership Interest is a pro rata undivided interest.
(iii) No
Ownership Interest in a Residual Certificate may be transferred without the
express written consent of the Owner Trustee,
the
Note Insurer,
the
Depositor and the Certificate Registrar. In connection with any proposed
transfer of any Ownership Interest in a Residual Certificate, the Owner Trustee
shall, as a condition to such consent, require delivery to it, the Depositor,
the Note Insurer, the Securities Administrator and the Certificate Registrar
in
form and substance satisfactory to it, an affidavit and agreement in the form
of
Exhibit C hereto from the proposed transferee to the effect that such transferee
is a Permitted Transferee and that it is not acquiring its Ownership Interest
in
a Residual Certificate that is the subject of the proposed transfer as a
nominee, trustee or agent for any Person who is not a Permitted Transferee
and
that the proposed transferee agrees to be bound by and to abide by the transfer
restrictions applicable to the Residual Certificates, and an affidavit from
the
proposed transferor in the form of Exhibit G to the effect that it does not
have
actual knowledge that any statements made by the proposed transferee in such
affidavit is false.
(iv) Any
attempted or purported transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 3.04(g) shall be
absolutely null and void and shall vest no rights in the purported transferee.
If any purported transferee shall, in violation of the provisions of this
Section 3.04, become a Holder of a Residual Certificate, then the prior Holder
of such Residual Certificate that is a Permitted Transferee shall, upon
discovery that the registration of transfer of such Residual Certificate was
not
in fact permitted by this Section 3.04, be restored to all rights as Holder
thereof retroactive to the date of registration of transfer of such Residual
Certificate. The Owner Trustee and
the
Certificate Registrar shall be under no liability to any Person for any
registration of transfer of any Residual Certificate that is in fact not
permitted by this Section 3.04(g) or for making any distributions due on such
Residual Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
Owner Trustee, the Depositor and the Certificate Registrar received all
affidavits and covenants with respect to such transfer provided for under this
Section 3.04(g). The Certificate Paying Agent, on behalf of the
Trust, shall
be
entitled to recover from any Holder of a Residual Certificate that
was
in fact not a Permitted Transferee at the time such distributions were made
all
distributions made on such Residual Certificate. Any such distributions so
recovered by the Certificate Paying Agent shall be distributed and delivered
by
the Certificate Paying Agent to
the
prior Holder of such Residual Certificate that is a Permitted
Transferee.
(v) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section 3.04(g),
then the Certificate Registrar shall have the right but not the obligation,
without notice to the Holder of such Residual Certificate or any other Person
having an Ownership Interest therein, to notify the underwriter to arrange
for
the sale of such Residual Certificate. The proceeds of such sale, net of
commissions (which may include commissions payable to the Certificate Registrar
or its affiliates), expenses and taxes due, if any, will be remitted by the
Certificate Paying Agent to the previous Holder of such Residual Certificate
that is a Permitted Transferee, except that in the event that the Certificate
Paying Agent determines that the Holder of such Residual Certificate may be
liable for any amount due under this Section 3.04 or any other provisions of
this Agreement, the Certificate
Paying Agent may withhold a corresponding amount from such remittance as
security for such claim. The terms and conditions of any sale under this clause
(v) shall be determined in the sole discretion of the Certificate Registrar
and
the Certificate Paying Agent, and neither such Person shall be liable to any
Person having an Ownership Interest in a Residual Certificate as a result of
its
exercise of such discretion.
(vi) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section 3.04(g),
then the Certificate Registrar will provide to the Internal Revenue Service,
and
to the persons specified in Section 860E(e)(3) of the Code, information needed
to compute the tax imposed under Section 860E(e)(1) of the Code on transfers
of
residual interests to disqualified organizations.
(h) Each
Person that has or that acquires an Ownership Interest in the Class I-S
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound to reimburse advances made by the related
Servicer to fund related Draws on the Group I HELOCs pursuant to the related
Servicing Agreement and to the extent set forth in Section 2.01(b) of the Sale
and Servicing Agreement.
(i) No
transfer of any Class C Certificate shall be made unless the proposed transferee
of such Class C Certificate (1) provides to the Securities Administrator the
appropriate tax certification form that would eliminate any withholding or
deduction for taxes from amounts payable by the related Swap Provider, pursuant
to the related Swap Agreement, to the Swap Administrator on behalf of the
related Supplemental Interest Trust (i.e., IRS Form W-9 or IRS Form X-0XXX,
X-0XXX, X-0XXX or W-8ECI, as applicable (or any successor form thereto),
together with any applicable attachments) and (2) agrees to update such form
(a)
upon expiration of any such form, (b) as required under then applicable U.S.
Treasury regulations and (c) promptly upon learning that such form has become
obsolete or incorrect, each as a condition to such transfer. In addition, no
transfer of any Class C Certificate shall be made if such transfer would cause
the related Supplemental Interest Trust to be beneficially owned by two or
more
persons for federal income tax purposes, or continue to be so treated, unless
(i) each proposed transferee of such Class C Certificate complies with the
foregoing conditions and (ii) the proposed majority holder of the related Class
C Certificates (or each holder, if there is or would be no majority holder)
(A)
provides, or causes to be provided, on behalf of the related Supplemental
Interest Trust, if applicable, to the Securities Administrator, the appropriate
tax certification form that would be required from the related
Supplemental
Interest Trust to eliminate any withholding or deduction for taxes from amounts
payable by the related Swap Provider, pursuant to the related Swap
Agreement, to the Swap Administrator on behalf of the related Supplemental
Interest Trust (i.e., IRS Form W-9 or IRS Form X-0XXX, X-0XXX, X-0XXX or W-8ECI,
as applicable (or any successor form thereto), together with any applicable
attachments) and (B) agrees to update such form (x) upon expiration of any
such
form, (y) as required under then applicable U.S. Treasury regulations and (z)
promptly upon learning that such form has become obsolete or incorrect. If,
under applicable U.S. Treasury regulations, such tax certification form may
only
be signed by a trustee acting on behalf of the related Supplemental Interest
Trust, then the related Supplemental Interest Trust Trustee shall sign such
certification form if so requested by a holder of the related Class C
Certificates. Upon receipt of any tax certification form pursuant to the
preceding conditions from a holder or proposed transferee of any Class C
Certificate, the Securities Administrator shall forward such tax certification
form to the related Supplemental Interest Trust Trustee. The related
Supplemental Interest Trust Trustee shall forward such tax certification form
provided to it to the related Swap Provider. Each holder of a Class C
Certificate and each transferee thereof shall be deemed to have consented to
the
related Supplemental Interest Trust Trustee forwarding to the related Swap
Provider any tax certification form it has provided and updated in accordance
with these transfer restrictions.
Any
purported sales or transfers of any Class C Certificate to a transferee which
does not comply with the requirements of this paragraph shall be deemed null
and
void under this Trust Agreement.
Section
3.05 Mutilated,
Destroyed, Lost or Stolen Certificates.
If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar,
or
if the Certificate Registrar shall receive evidence to its satisfaction of
the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity
as
may be required by them to save each of them harmless, then in the absence
of
notice to the Certificate Registrar or the Owner Trustee that such Certificate
has been acquired by a protected purchaser, the Owner Trustee shall execute
on
behalf of the Trust and the Owner Trustee or the Certificate Registrar, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of any new Certificate under
this
Section 3.05, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any expenses of the Owner Trustee or the
Certificate Registrar (including fees and expenses of counsel) and any tax
or
other governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section 3.05 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
3.06 Persons
Deemed Certificateholders.
Prior
to due presentation of a Certificate for registration of transfer, the Owner
Trustee, the Certificate Registrar or any Certificate Paying Agent may treat
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 5.03 and for all other purposes whatsoever, and none of
the
Trust, the Owner Trustee, the Certificate Registrar or any Certificate Paying
Agent shall be bound by any notice to the contrary.
Section
3.07 ERISA
Restrictions.
The
Class I-E, Class X and Residual Certificates may not be acquired or transferred
to a transferee for or on behalf of a Plan. Each prospective transferee, other
than the Initial Holder or its affiliate, shall represent and warrant to the
Certificate Registrar that it is not a Plan or any person acting on behalf
of,
or purchasing such Certificate with Plan Assets of, a Plan, in accordance with
Exhibit E or Exhibit F hereto, as applicable. By accepting and holding its
beneficial ownership interest in a Class I-E, Class X, Class C or Residual
Certificate, the Holder thereof shall be deemed to have represented and
warranted that it is not a Plan.
Section
3.08 Access
to List of Certificateholders’ Names and Addresses.
The
Certificate Registrar shall furnish or cause to be furnished to the Depositor,
the Certificate Paying Agent, the Note Insurer or the Owner Trustee, within
15
days after receipt by the Certificate Registrar of a written request therefor
from the Depositor, the Certificate Paying Agent, the Note Insurer or the Owner
Trustee, a list, in such form as the requesting party 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, the Certificate Paying
Agent, the Certificate Registrar or the Owner Trustee accountable by reason
of
the disclosure of its name and address, regardless of the source from which
such
information was derived.
Section
3.09 Maintenance
of Office or Agency.
The
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 Certificate Registrar shall give prompt
written notice to the Depositor, the Certificate Paying Agent, the
Certificateholders of any change in the location of the Certificate Register
or
any such office or agency.
Section
3.10 Certificate
Paying Agent.
(a) The
Certificate Paying Agent shall make distributions to Certificateholders from
the
Certificate Distribution Account on behalf of the Trust in accordance with
the
provisions of the Certificates and Section 5.02 hereof from payments remitted
to
the Certificate Paying Agent by the Securities Administrator pursuant to Section
3.03 of the Indenture. The Trust hereby appoints the Securities Administrator
as
Certificate Paying Agent and the Securities Administrator hereby accepts such
appointment and further agrees that it will be bound by the provisions of this
Trust Agreement relating to the Certificate Paying Agent and shall:
(i) hold
all
sums held by it for the payment of amounts due with respect to the 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 Certificate Paying Agent has actual knowledge in the making of any
payment required to be made with respect to the Certificates;
(iii) at
any
time during the continuance of any such default, upon the written request of
the
Owner Trustee forthwith pay to the Owner Trustee on behalf of the Trust all
sums
so held in Trust by such Certificate Paying Agent;
(iv) not
resign from its position as Certificate Paying Agent except that it shall
immediately resign as Certificate Paying Agent and forthwith pay to the Owner
Trustee on behalf of the Trust all sums held by it in trust for the payment
of
Certificates if at any time it ceases to meet the standards under this Section
3.09 required to be met by the Certificate Paying Agent at the time of its
appointment;
(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 Certificate Paying Agent if it determines
in its sole discretion that the Certificate Paying Agent shall have failed
to
perform its obligations under this Trust Agreement in any material respect.
In
the event that LaSalle Bank National Association shall no longer be the
Securities Administrator and the Certificate Paying Agent under this Trust
Agreement and Paying Agent under the Indenture, the Trust shall appoint a
successor to act as Certificate Paying Agent (which shall be a bank or trust
company) and which shall also be the successor Paying Agent under the Indenture.
The Owner Trustee shall cause such successor Certificate Paying Agent or any
additional Certificate Paying Agent appointed by the Trust to execute and
deliver to the Owner Trustee an instrument to the effect set forth in Section
3.10(a) as it relates to the Certificate Paying Agent. The Certificate Paying
Agent shall return all unclaimed funds to the Trust and upon removal of a
Certificate Paying Agent such Certificate Paying Agent shall also return all
funds in its possession to the Trust. The provisions of Sections 6.01, 6.04,
6.05, 6.06, 6.07, 6.08, 7.01 and 7.02 shall apply to the Certificate Paying
Agent to the same extent applicable to the Owner Trustee except where the
context requires otherwise. Any reference in this Agreement to the Certificate
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
(c) The
Certificate Paying Agent shall establish and maintain with itself a trust
account (the “Certificate Distribution Account”) in which the Certificate Paying
Agent shall deposit, on the same day as it is received from the Securities
Administrator, each remittance received by the Certificate Paying Agent with
respect to payments made pursuant to the Indenture. The Certificate Paying
Agent
shall make all distributions to Certificates, from moneys on deposit in the
Certificate Distribution Account, in accordance with Section 5.02 hereof. The
funds in the Certificate Distribution Account shall be held uninvested. The
Certificate Distribution Account may be a subaccount of the Payment Account.
Section
3.11 Distributions
on the Certificates.
The
Certificateholders will be entitled to distributions on each Payment Date,
as
provided in this Agreement, the Sale and Servicing Agreement and the
Indenture.
(a) With
respect to the Group I Certificateholders (other than Class I-X
Certificateholders) and any Payment Date, any amounts remaining in the Payment
Account for distribution to the Group I Certificateholders (other than Class
I-X
Certificateholders) pursuant to Section 3.02 of the Indenture, to the extent
such funds are received by the Certificate Paying Agent, shall be distributed
by
the Certificate Paying Agent as follows:
(i) first,
to
the Owner Trustee, any unpaid and unreimbursed Expenses due and owing to it
pursuant to the Operative Agreements (including Section 7.02
herein);
(ii) second,
to the Holders of the Class I-S Certificates, as set forth in Section 3.02
of
the Indenture;
(iii) third,
to
the Holders of the Class I-E Certificates, the amounts distributed in Sections
3.02(a)(x), 3.02(c)(1)(vi) and 3.02(c)(2)(xiii) of the Indenture;
and
(iv) fourth,
to the Holders of the Group I Residual Certificates, any remaining amounts
after
distributions pursuant to clauses (i), (ii) and (iii) above, based on the
related REMIC in which such amounts remain.
(b) With
respect to the Group II Certificateholders (other than Class II-X
Certificateholders) and any Payment Date, any amounts remaining in the Payment
Account for distribution to the Group II Certificateholders (other than Class
II-X Certificateholders) pursuant to Section 3.02 of the Indenture, to the
extent such funds are received by the Certificate Paying Agent, shall be
distributed by the Certificate Paying Agent as follows:
(i) first,
to
the Owner Trustee, any unpaid and unreimbursed Expenses due and owing to it
pursuant to the Operative Agreements (including Section 7.02
herein);
(ii) second,
to the Holders of the Class II-C Certificates, the amounts distributed in
Sections 3.02(e)(1)(xi),
3.02(e)(2)(xi) and 3.02(h)(vi)
of the
Indenture; and
(iii) third,
to
the Holders of the Group II Residual Certificates and the Class I-R
Certificates, any remaining amounts after the distributions pursuant to clauses
(i) and (ii) above, based on the related REMIC in which such amounts
remain.
(c) With
respect to the Group III Certificateholders (other than Class III-X
Certificateholders) and any Payment Date, any amounts remaining in the Payment
Account for distribution to the Group III Certificateholders (other than Class
III-X Certificateholders) pursuant to Section 3.02 of the Indenture, to the
extent such funds are received by the Certificate Paying Agent, shall be
distributed by the Certificate Paying Agent as follows:
(i) first,
to
the Owner Trustee, any unpaid and unreimbursed Expenses due and owing to it
pursuant to the Operative Agreements (including Section 7.02
herein);
(ii) second,
to the Holders of the Class III-C Certificates, the amounts distributed in
Sections 3.02(g)(1)(xi), 3.02(g)(2)(xi) and 3.02(h)(vi) of the Indenture;
and
(iii) third,
to
the Holders of the Group III Residual Certificates, the Class II-R-2
Certificates and the Class I-R Certificates, any remaining amounts after the
distributions pursuant to clauses (i) and (ii) above, based on the related
REMIC
in which such amounts remain.
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 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, 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
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 instructions of the Certificateholders and the Note Insurer,
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. 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 in its individual capacity 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 that is inconsistent with the purposes of the Trust set forth in Section
2.03. The Certificateholders shall not direct the Owner Trustee to take action
that would violate the provisions of this Agreement.
(b) The
Owner
Trustee shall not convey or transfer any of the Trust’s properties or assets,
including those included in the Owner Trust Estate, to any person or accept
any
further contribution to the Owner Trust Estate, or engage or cause the Trust
to
engage, in any other action that may adversely affect any REMIC created pursuant
to the Indenture, unless 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 federal income tax consequence to the Trust or any
Certificateholder or any Noteholder or any REMIC created pursuant to the
Indenture.
Section
4.06 Prior
Notice to Certificateholders and Note Insurer with Respect to Certain
Matters.
With
respect to the following matters, the Owner Trustee shall not take action unless
at least 30 days before the taking of such action, the Owner Trustee shall
have
notified the Certificateholders, the Securities Administrator and the Note
Insurer in writing of the proposed action and the Certificateholders shall
not
have notified the Owner Trustee in writing prior to the 30th day after such
notice is given that such Certificateholders have withheld consent or provided
alternative direction:
(a) the
initiation of any claim or lawsuit by the Trust (except claims or lawsuits
brought in connection with the collection of cash distributions due and owing
under the Mortgage Loans) and the compromise of any action, claim or lawsuit
brought by or against the Trust (except with respect to the aforementioned
claims or lawsuits for collection of cash distributions due and owing under
the
Mortgage Loans);
(b) the
election by the Trust to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Statutory Trust
Statute);
(c) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is required;
(d) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is not required and such amendment materially
adversely affects the interest of the Certificateholders or any REMIC created
pursuant to the Indenture; and
(e) the
appointment pursuant to the Indenture of a successor Note Registrar, Paying
Agent or Indenture Trustee or pursuant to this Trust Agreement of a successor
Certificate Registrar or Certificate Paying Agent or the consent to the
assignment by the Note Registrar, Paying Agent, Indenture Trustee, Certificate
Registrar or Certificate Paying Agent of its obligations under the Indenture
or
this Trust Agreement, as applicable.
Section
4.07 Action
by Certificateholders with Respect to Certain Matters.
The
Owner Trustee shall not, except upon the direction of the Certificateholders
and
the Note Insurer, unless otherwise 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 and the Note
Insurer.
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 Note Insurer and the consent of the Owner Trustee
and
the delivery to the Owner Trustee by each such Certificateholder and the Note
Insurer of a certificate certifying that such Certificateholder and the Note
Insurer 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 Group I,
Group
II or Group III Certificateholders under this Trust Agreement may be taken
by
the Holders of Certificates evidencing not less than a majority Percentage
Interest of the related Certificates with the consent of the Note Insurer as
required. Except as expressly provided herein, any written notice of the Group
I, Group II or Group III 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 related Certificates at the
time
of the delivery of such notice.
Section
4.11 Optional
Redemption.
Upon
receipt of written instructions provided to the Securities Administrator by
the
Majority Class I-E Certificateholder, with the consent of the Note Insurer,
if
applicable, the Issuing Entity shall redeem the Group I Notes in accordance
with
Sections 8.06(a) and 8.06(b) of the Indenture and the Securities Administrator
shall provide all necessary notices on behalf of the Issuing Entity to effect
the foregoing, provided that such Holder shall deposit with the Securities
Administrator an amount equal to the aggregate redemption price specified under
Section 8.06(a) of the Indenture and such Holder complies with the requirements
set forth in Section 8.08 of the Indenture. The Issuing Entity shall not have
the power to exercise the right to redeem the Group I Notes pursuant to Sections
8.06(a) and 8.06(b) of the Indenture, except as provided above. Upon
receipt of written instructions provided to the Securities Administrator by
the
Majority Class II-C Certificateholders, with the consent of the Note Insurer,
if
applicable, the Issuing Entity shall redeem the Group II Notes in accordance
with Sections 8.06(c) and 8.06(d) of the Indenture and the Securities
Administrator shall provide all necessary notices on behalf of the Issuing
Entity to effect the foregoing, provided that such Holder shall deposit with
the
Securities Administrator an amount equal to the aggregate redemption price
specified under Section 8.06(c) of the Indenture and such Holder complies with
the requirements set forth in Section 8.08 of the Indenture. The Issuing Entity
shall not have the power to exercise the right to redeem the Group II Notes
pursuant to Sections 8.06(c) and 8.06(d) of the Indenture, except as provided
above. Upon receipt of written instructions provided to the Securities
Administrator by the Majority Class III-C Certificateholders, with the consent
of the Note Insurer, if applicable, the Issuing Entity shall redeem the Group
III Notes in accordance with Sections 8.06(e) and 8.06(f) of the Indenture
and
the Securities Administrator shall provide all necessary notices on behalf
of
the Issuing Entity to effect the foregoing, provided that such Holder shall
deposit with the Securities Administrator an amount equal to the aggregate
redemption price specified under Section 8.06(e) of the Indenture and such
Holder complies with the requirements set forth in Section 8.08 of the
Indenture. The Issuing Entity shall not have the power to exercise the right
to
redeem the Group III Notes pursuant to Sections 8.06(e) and 8.06(f) of the
Indenture, except as provided above.
ARTICLE
V
Application
of Trust Funds
Section
5.01 Certificate
Distribution Account.
All of
the right, title and interest of the Trust in all funds on deposit from time
to
time in the Certificate Distribution Account and in all proceeds thereof shall
be held for the benefit of the Certificateholders and such other persons
entitled to payments therefrom. Except as otherwise expressly provided herein
or
in the Sale and Servicing Agreement, the Certificate Distribution Account shall
be under the sole dominion and control of the Certificate Paying Agent for
the
benefit of the Certificateholders. The Certificate Distribution Account shall
be
subject to and established and maintained in accordance with the applicable
provisions of the Sale and Servicing Agreement and the Indenture, including,
without limitation, the provisions of Section 5.10 of the Sale and Servicing
Agreement regarding distributions from the Certificate Distribution
Account.
Section
5.02 Distributions.
(a)
The
Securities Administrator hereby directs the Certificate Paying Agent after
the
Noteholders have been paid amounts owed to them pursuant to the Indenture and
the Note Insurer has been paid amounts owed to it pursuant to the Indenture
and
the Insurance Agreement to distribute on each Payment Date to the Holders
amounts on deposit in the Certificate Distribution Account in accordance with
Section 5.10 of the Sale and Servicing Agreement and Section 3.11 hereof and
the
Certificate Paying Agent hereby acknowledges such direction.
(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 5.02.
The
Certificate Paying Agent 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
Certificate Paying Agent and remitted to the appropriate taxing authority.
If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the
Certificate Paying Agent may in its sole discretion withhold such amounts in
accordance with this paragraph (b).
(c) Distributions
to Certificateholders shall be subordinated to the creditors of the Trust,
including the Noteholders and the Note Insurer.
Section
5.03 Method
of Payment.
Subject
to Section 8.01(c), distributions required to be made to Certificateholders
on
any Payment Date as provided in Section 5.02 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 Certificate Registrar appropriate written instructions
at
least five Business Days prior to such Payment Date or, if not, by check mailed
to such Certificateholder at the address of such Holder appearing in the
Certificate Register.
Section
5.04 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 7.04 of the Indenture with
respect to such Payment Date.
ARTICLE
VI
Concerning
the Owner Trustee
Section
6.01 Acceptance
of Trusts and Duties.
The
Owner Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Trust
Agreement. The Owner Trustee and the Certificate Paying Agent also agree to
disburse all moneys actually received by each of them constituting part of
the
Owner Trust Estate upon the terms of the Basic Documents and this Trust
Agreement. The Owner Trustee shall not be answerable or accountable hereunder
or
under any other Basic Document under any circumstances, except (i) for its
own
willful misconduct, gross negligence or bad faith or grossly negligent failure
to act or (ii) in the case of the inaccuracy of any representation or warranty
contained in Section 6.03 expressly made by the Owner Trustee. In particular,
but not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) The
Owner
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in accordance with the instructions of the Certificateholders or
any
other Person permitted under this Trust Agreement;
(b) No
provision of this Trust Agreement or any other 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
other 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 interest
on
the Notes and the Certificates.
(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 any other Person 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 other Basic Documents, the Notes,
the Certificates 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
execution, delivery, authentication and performance by it of this Trust
Agreement will not require the authorization, consent or approval of, the giving
of notice to, the filing or registration with, or the taking of any other action
with respect to, any governmental authority or agency;
(f) The
Owner
Trustee shall not be liable for the default or misconduct of the Depositor,
Indenture Trustee, Certificate Registrar, Certificate Paying Agent, Securities
Administrator or the Master 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 or the Owner Trustee under this Trust Agreement
or
the other Basic Documents that are required to be performed by the Depositor,
Indenture Trustee, Certificate Registrar, Certificate Paying Agent, Securities
Administrator or the Master Servicer under any of the Basic Documents or
otherwise.
(g) The
Owner
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it or duties imposed by this Trust Agreement, or to institute, conduct
or defend any litigation under this Trust Agreement or otherwise or in relation
to this Trust Agreement or any other 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 other 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.
(h) In
no
event shall the Owner Trustee be liable for any damages in the nature of
special, indirect or consequential damages, however styled, including, without
limitation, lost profits, or for any losses due to forces beyond the control
of
the Owner Trustee, including, without limitation, strikes, work stoppages,
acts
of war or terrorism, insurrection, revolution, nuclear or natural catastrophes
or acts of God and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services provided to the
Owner Trustee by third parties.
(i) Notwithstanding
any Person’s right to instruct the Owner Trustee neither the Owner Trustee nor
any agent, employee, director or officer of the Owner Trustee shall have any
obligation to execute any certificates or other documents required pursuant
to
the Sarbanes Oxley Act of 2002 or the rules and regulations thereunder, and
the
refusal to comply with any such instructions shall not constitute a default
or
breach hereunder.
Section
6.02 Furnishing
of Documents.
The
Owner Trustee shall furnish to the Securityholders and the Note Insurer promptly
upon receipt of a written reasonable request therefor, duplicates or copies
of
all reports, notices, requests, demands, certificates, financial statements
and
any other instruments furnished to the Trust under the Basic
Documents.
Section
6.03 Representations
and Warranties.
Wilmington Trust Company hereby represents and warrants to the Securities
Administrator and the Depositor, for the benefit of the Certificateholders
and
the Note Insurer, that:
(a) It
is a
Delaware 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 Wilmington Trust Company 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
Securities Administrator and the Depositor, constitutes a valid, legal and
binding obligation of Wilmington Trust Company, 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) Wilmington
Trust Company 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
Wilmington Trust Company or its properties or might have consequences that
would
materially adversely affect its performance hereunder; and
(f) No
litigation is pending or, to the best of Wilmington Trust Company’s knowledge,
threatened against Wilmington Trust Company 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 other 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 to the extent such counsel, accountants or other such Persons were
selected with reasonable care and good faith.
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 other
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 be taken as the statements of
the
Depositor, and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or
sufficiency of this Trust Agreement, of any other 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, or of MERS or the
MERS®
System. The Owner Trustee shall at no time have any responsibility or liability
with respect to the sufficiency of the Owner Trust Estate or its ability to
generate the payments to be distributed to 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 Certificate Paying Agent, the Certificate
Registrar, the Indenture Trustee or the Securities Administrator 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
3.04, become the owner or pledgee of Certificates or Notes and may deal with
the
Depositor, the Seller, the Certificate Paying Agent, the Certificate Registrar
and the Indenture Trustee in transactions with the same rights as it would
have
if it were not Owner Trustee.
Section
6.08 Payments
from Owner Trust Estate.
All
payments to be made by the Owner Trustee under this Trust Agreement or any
of
the other 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 other
Basic Documents to which the Owner Trustee is a party.
Section
6.09 Liability
of Certificate Registrar and Certificate Paying Agent.
All
provisions affording protection or rights to or limiting the liability of the
Owner Trustee, including the provisions of this Agreement permitting the Owner
Trustee to resign, merge or consolidate, shall inure as well to the Certificate
Registrar and Certificate Paying Agent.
ARTICLE
VII
Compensation
of Owner Trustee
Section
7.01 Owner
Trustee’s Fees and Expenses.
The
Owner Trustee shall receive from the Seller as compensation for its services
hereunder such fees as have been separately agreed upon by the Owner Trustee
and
the Seller before the date hereof. In the event that the Seller fails to pay
such fees on any Payment Date, the Owner Trustee shall be entitled to such
fee
from funds on deposit in the Payment Account prior to any distributions to
the
Noteholders and Certificateholders on such Payment Date. Additionally, the
Owner
Trustee shall be reimbursed from amounts on deposit in the Payment Account,
in
accordance with Section 5.08(a)(vii) of the Sale and Servicing Agreement, for
its reasonable expenses hereunder and under the Basic Documents, including
the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may reasonably employ
in connection with the exercise and performance of its rights and its duties
hereunder and under the other Basic Documents. All such amounts constitute
Extraordinary Trust Fund Expenses.
Section
7.02 Indemnification.
The
Depositor shall indemnify, defend and hold harmless the Owner Trustee (in its
individual and trustee capacity) and its 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, hereunder, provided, that:
(i) the
Depositor 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, as a result of any inaccuracy of a representation or
warranty of the Owner Trustee contained in Section 6.03 expressly made by the
Owner Trustee;
(ii) with
respect to any such claim, the Indemnified Party shall have given the Depositor
written notice thereof promptly after the Indemnified Party shall have actual
knowledge thereof; provided, however, that failure to give such notice shall
not
affect the indemnification of the Indemnified Party except to the extent the
Depositor is materially prejudiced by such failure;
(iii) while
maintaining control over its own defense, the Depositor shall consult with
the
Indemnified Party in preparing such defense; and
(iv) notwithstanding
anything in this Agreement to the contrary, the Depositor shall not be liable
for settlement of any claim by an Indemnified Party entered into without the
prior consent of the Depositor which consent shall not be unreasonably
withheld.
The
indemnities contained in this Section shall survive the resignation or removal
of the Owner Trustee or the termination of this Trust Agreement. In addition,
upon written notice to the Owner Trustee and with the consent of the Owner
Trustee which consent shall not be unreasonably withheld, the Depositor has
the
right to assume the defense of any claim, action or proceeding against the
Owner
Trustee.
The
Seller agrees to indemnify the Indemnified Parties for any loss, liability
or
expense for which the Depositor is required to indemnify the Indemnified Parties
pursuant to this Section 7.02, other than (x) any loss liability or expense
required to be covered by the Master Servicer pursuant to Section 6.03 of the
Sale and Servicing Agreement or (y) and any loss, liability or expense actually
paid by the Depositor in accordance with this Section 7.02.
ARTICLE
VIII
Termination
of Trust Agreement
Section
8.01 Termination
of Trust Agreement.
(a)
This
Trust Agreement (other than Article VII and Section 10.08) shall terminate
and
the Trust shall dissolve, wind up and terminate in accordance with Section
3808
of the Statutory Trust Statute and be of no further force or effect upon the
earlier of (i) the final distribution of all moneys or other property or
proceeds of the Owner Trust Estate in accordance with the terms of the Indenture
and this Trust Agreement and (ii) the distribution of all of the assets of
the
Owner Trust Estate, in accordance with written instructions provided to the
Certificate Paying Agent by the Majority Class I-E Certificateholder, following
the optional redemption of the Group I Notes effected by the Majority Class
I-E
Certificateholder pursuant to Sections 8.06(a) and 8.06(b) of the Indenture,
the
Majority Class II-C Certificateholder, following the optional redemption of
the
Group II Notes effected by the Majority Class II-C Certificateholder pursuant
to
Sections 8.06(c) and 8.06(d) of the Indenture and the Majority Class III-C
Certificateholder, following the optional redemption of the Group III Notes
effected by the Majority Class III-C Certificateholder pursuant to Sections
8.06(e) and 8.06(f) of the Indenture; provided that all amounts owing to the
related Noteholders or the Note Insurer to the extent payable from the Owner
Trust Estate or proceeds thereof have been paid in full and that all obligations
under the Indenture and Insurance Agreement, as applicable, 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 Owner Trust Estate, specifying the Payment Date upon
which related Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution and cancellation,
shall be given by the Certificate Paying Agent by letter to related
Certificateholders and Note Insurer, mailed within five Business Days of receipt
of notice of the final payment on the related Notes from the Securities
Administrator, stating (i) the Payment Date upon or with respect to which final
payment of the related Certificates shall be made upon presentation and
surrender of the related Certificates at the office of the Certificate Paying
Agent therein designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
related Certificates at the office of the Certificate Payment Agent therein
specified. The Certificate Paying Agent shall give such notice to the Owner
Trustee and the Certificate Registrar at the time such notice is given to
related Certificateholders. Upon presentation and surrender of the related
Certificates, the Certificate Paying Agent shall cause to be distributed to
related Certificateholders amounts distributable on such Payment Date pursuant
to Section 5.02.
In
the
event that all of the related Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in
the
above mentioned written notice, the Certificate Paying Agent shall give a second
written notice to the remaining related 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 related
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
Certificate Paying Agent 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 Certificate Paying Agent to the
Depositor.
(d) Upon
the
winding up of the Trust and its termination, the Owner Trustee shall, at the
direction and expense of the Seller, 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 and/or
at least BBB- by Standard and Poor’s and is otherwise acceptable to the Note
Insurer and 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
Securities Administrator and the Note Insurer. Upon receiving such notice of
resignation, the Depositor with the consent of the Note Insurer shall promptly
appoint a successor Owner Trustee, by written instrument, in duplicate, one
copy
of which instrument shall be delivered to the resigning Owner Trustee and to
the
successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of
such
notice of resignation, the resigning Owner Trustee may petition any court of
competent jurisdiction for the appointment of a successor Owner
Trustee.
If
at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 9.01 and shall fail to resign after written request
therefor by the Depositor, or if at any time the Owner Trustee shall be legally
unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of
the
Owner Trustee or of its property shall be appointed, or any public officer
shall
take charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
with the consent of the Note Insurer may remove the Owner Trustee.
Any
resignation or removal of the Owner Trustee and appointment of a successor
Owner
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 9.03 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Depositor shall provide notice of such resignation
or removal of the Owner Trustee to each of the Rating Agencies.
Section
9.03 Successor
Owner Trustee.
Any
successor Owner Trustee appointed pursuant to Section 9.02 shall execute,
acknowledge and deliver to the Indenture Trustee, the Securities Administrator
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, the Note Insurer 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 (i) mail notice of such merger
or consolidation to the Rating Agencies and (ii) file all amendments to the
Certificate of Trust with the Secretary of State if required by the Statutory
Trust Statute.
Section
9.05 Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Trust Agreement, at any time,
for
the purpose of meeting any legal requirements of any jurisdiction in which
any
part of the Owner Trust Estate may at the time be located, the Owner Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons to act as co-trustee, jointly with the Owner Trustee, or
as
separate trustee or trustees, of all or any part of the Owner Trust Estate,
and
to vest in such Person, in such capacity, such title to the Trust or any part
thereof and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Owner Trustee may consider
necessary or desirable. No co-trustee or separate trustee under this Trust
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 9.01 and no notice of the appointment of
any
co-trustee or separate trustee shall be required pursuant to Section
9.03.
Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a) All
rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Owner Trustee joining in such act), except to the extent that under any law
of
any jurisdiction in which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including the
holding of title to the Owner Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Owner Trustee;
(b) No
trustee under this Trust Agreement shall be personally liable by reason of
any
act or omission of any other trustee under this Trust Agreement;
and
(c) The
Owner
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee.
Any
notice, request or other writing given to the Owner Trustee shall be deemed
to
have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Trust Agreement and the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Trust Agreement, specifically including every provision of this Trust
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with
the
Owner Trustee.
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee as
its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Trust
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a
new
or successor co-trustee or separate trustee.
ARTICLE
X
Miscellaneous
Section
10.01 Amendments.
(a)
This
Trust Agreement may be amended from time to time by the parties hereto as
specified in this Section, provided that any amendment, except as provided
in
subparagraph (e) below, be accompanied by an Opinion of Counsel addressed to
the
Owner Trustee, the Certificate Registrar, the Note Insurer and the Certificate
Paying Agent and obtained by the Depositor to the effect that such amendment
(i)
complies with the provisions of this Section and (ii) would not cause the Trust
to be subject to an entity level tax for federal income tax
purposes.
(b) If
the
purpose of the amendment (as detailed therein) is to correct any mistake,
eliminate any inconsistency, cure any ambiguity or deal with any matter not
covered (i.e. to give effect to the intent of the parties and, if applicable,
to
the expectations of the Holders), it shall not be necessary to obtain the
consent of any Noteholders or Certificateholders, but (A) the Owner Trustee,
the
Certificate Registrar, the Note Insurer and the Certificate Paying Agent shall
be furnished with (i) 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 without regard to the Policy) or (ii) an Opinion of Counsel
obtained by the Depositor to the effect that such action will not adversely
affect in any material respect the interests of any Noteholders, the Note
Insurer or Certificateholders or any REMIC created pursuant to the Indenture
and
(B) the written consent of the Note Insurer shall be required.
(c) If
the
purpose of the amendment is to prevent the imposition of any federal or state
taxes or to comply with any requirements imposed by the Code and the REMIC
Provisions, at any time that any Security is outstanding, it shall not be
necessary to obtain the consent of any Noteholders or Certificateholders, but
the Owner Trustee, the Certificate Registrar, the Note Insurer and the
Certificate Paying Agent shall be furnished with (A) the written consent of
the
Note Insurer and (B) an Opinion of Counsel obtained by the Depositor that such
amendment is necessary or helpful to prevent the imposition of such taxes or
to
comply with such laws and is not materially adverse to any Noteholders, the
Note
Insurer or Certificateholders or any REMIC created pursuant to the
Indenture.
(d) If
the
purpose of the amendment is to add or eliminate or change any provision of
the
Trust Agreement other than as contemplated in (b) and (c) above, the amendment
shall require (A) an Opinion of Counsel obtained by the Depositor to the effect
that such action will not adversely affect in any material respect the interests
of any Noteholders, the Note Insurer or Certificateholders or any REMIC created
pursuant to the Indenture, (B) the written consent of the Note Insurer and
(C)
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
Note
(without regard to the Policy) or (b) the consent of Holders of Certificates
evidencing a majority Percentage Interest of the Certificates and the consent
of
Noteholders representing at least 51% of the Note Principal Balance of the
Notes; provided, however, that no such amendment shall (i) reduce in any manner
the amount of, or delay the timing of, payments received that are required
to be
distributed on any Certificate without the consent of the related
Certificateholder, (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 or (iii) change
the permitted activities of the Trust as set forth herein.
(e) 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 written consent of Holders
of all such Certificates then outstanding and the Note Insurer; provided, that
the Opinion of Counsel specified in subparagraph (a) above shall not be
required.
(f) Promptly
after the execution of any such amendment or consent, the Depositor shall
furnish written notification of the substance of such amendment or consent
to
each Certificateholder, the Indenture Trustee, the Note Insurer and the Rating
Agencies. It shall not be necessary for the consent of Certificateholders,
Noteholders 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, the
Certificate Registrar, the Note Insurer and the Certificate Paying Agent shall
be entitled to receive and conclusively rely upon an Opinion of Counsel to
the
effect that such amendment is authorized or permitted by the documents subject
to such amendment and that all conditions precedent in the Basic Documents
for
the execution and delivery thereof by the Trust or the Owner Trustee, as the
case may be, have been satisfied.
(h) No
amendment or agreement affecting the rights or duties of the owner Trustee,
Certificate Registrar or the Certificate Paying Agent may be entered into
without the consent of the affected party. The Owner Trustee shall not be
required to enter into any amendment which adversely affects its rights, duties
or immunities under this Trust Agreement or the other Basic
Documents.
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 Securities Administrator,
the
Certificateholders, the Note Insurer 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, Attn: 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; to the Indenture Trustee,
the Certificate Registrar and the Certificate Paying Agent at its Corporate
Trust Office; to
Ambac
Assurance Corporation at: Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Consumer Asset-Backed Securities Group, and in each case in which
a
demand, notice or other communication to the Note Insurer refers to an Event
of
Default or any event with respect to which failure on the part of the Note
Insurer to respond shall be deemed to constitute consent or acceptance, then
a
copy of such notice or other communication should also be sent to the attention
of the general counsel of each of the Insurer, the Depositor, the Master
Servicer, the Securities Administrator, the Seller and the Indenture Trustee
and
shall be marked to indicate “URGENT MATERIAL ENCLOSED”; to Standard &
Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. at: 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000; to Xxxxx’x Investors Service, Inc., 00 Xxxxxx Xxxxxx, 0xx
Xxxxx, 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.
To the
fullest extent permitted by applicable law, 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 other 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 Certificate Registrar,
the
Certificate Paying Agent or any Affiliate thereof and no recourse may be had
against such parties or their assets, except as may be expressly set forth
or
contemplated in this Trust Agreement, the Certificates or the other 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 LaSalle Bank National
Association 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 Certificate Registrar and Certificate Paying Agent. 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 Certificate Registrar or Certificate Paying Agent, and no implied
duties shall be read into this Agreement on the part of the Securities
Administrator (or Certificate Paying Agent or Certificate Registrar). 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 Certificate Registrar or as Certificate Paying Agent.
Section
10.14 Benefits
of Trust Agreement.
The
Note Insurer and any successor and assign shall be a third-party beneficiary
to
the provisions of this Trust agreement. To the extent that this Trust Agreement
confers upon or gives or grants to the Note Insurer any right, remedy or claim
under or by reason of this Trust Agreement, the Note Insurer may enforce any
such right, remedy or claim conferred, given or granted hereunder. Nothing
in
this Trust Agreement, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, and the Certificateholders
and the Note Insurer, any benefit or any legal or equitable right, remedy or
claim under this Trust Agreement.
Section
10.15 Tax
Matters.
(a) The
Securities Administrator shall, to the extent under its control, conduct the
affairs of the Owner Trust Estate at all times that any Certificates and Notes
are outstanding so as to maintain the status of each REMIC formed pursuant
to
the Indenture as a REMIC under the REMIC Provisions. The Securities
Administrator shall not knowingly or intentionally take any action or omit
to
take any action that would cause the termination of the REMIC status of any
REMIC formed pursuant to the Indenture. The Owner Trustee shall cooperate and
furnish upon the request of the Securities Administrator any records,
information and materials in its possession relating to each REMIC formed
pursuant to the Indenture as may be necessary for the Securities Administrator
to prepare the returns, schedules and statements required to be furnished to
the
taxing authorities or Noteholders or Certificateholders with respect to each
REMIC formed pursuant to the Indenture, or to perform its other duties relating
to the tax matters of the Owner Trust Estate, as provided in
Indenture.
(b) The
Holder of the greatest Percentage Interest in a related Class of Residual
Certificates shall be the Tax Matters Person for each related REMIC formed
pursuant to the Indenture. Such Holder hereby agrees to appoint the Securities
Administrator, or any successor thereto or assignee thereof, to serve on its
behalf as tax administrator under the Indenture with respect to each such
REMIC.
(c) For
federal income tax reporting purposes, each Holder of a Certificate shall take
positions that are consistent with the intended tax treatment of the Owner
Trust
Estate as one or more REMICs and the tax treatment expressed in the Basic
Documents with regard to distributions and other transactions contemplated
therein, including but not limited to, the tax treatment of amounts on deposit
in the Group
I
Net WAC
Cap Rate Carryover Reserve Account, the Group II Basis Risk Shortfall Carry
Forward Account and the Group III Basis Risk Shortfall Carry Forward Account,
payments to and from the related Group I Net WAC Cap Rate Carryover Reserve
Account, the Group II Basis Risk Shortfall Carry Forward Account and the Group
III Basis Risk Shortfall Carry Forward Account in respect of related Net WAC
Cap
Rate Carryover Amounts and payments in respect of Class IO Distribution Amounts.
The Holders of the related Regular Certificates acknowledge that all amounts
earned on amounts on deposit in the Group I Net WAC Cap Rate Carryover Reserve
Account, the Group II Basis Risk Shortfall Carry Forward Account and the Group
III Basis Risk Shortfall Carry Forward Account will be taxable to such Holders,
and agree to deposit into the related Group I Net WAC Cap Rate Carryover Reserve
Account, the Group II Basis Risk Shortfall Carry Forward Account and the Group
III Basis Risk Shortfall Carry Forward Account an amount equal to any losses
on
invested amounts out of their own funds immediately as realized.
(d) In
the
event that any tax is imposed on “prohibited transactions” of any REMIC formed
pursuant to the Indenture as defined in Section 860F(a)(2) of the Code, on
the
“net income from foreclosure property” of the Owner Trust Estate as defined in
Section 860G(c) of the Code, on any contribution to any REMIC formed pursuant
to
the Indenture after the Startup Day pursuant to Section 860G(d) of the Code,
or
any other tax, including, without limitation, any federal, state or local tax
or
minimum tax, is imposed upon any REMIC formed pursuant to the Indenture, and
is
not paid by the party causing such tax to arise as otherwise provided for in
the
Indenture, the Holders of the Residual Certificates agree that such tax shall
be
paid, as further described in the Indenture, with amounts otherwise to be
distributed to such Holders, to the extent related to such assets or REMIC
to
which such tax is attributable, prior to allocating any such tax to the related
Noteholders. Notwithstanding anything to the contrary contained herein, to
the
extent that any such tax is payable by the Holder of any Residual Certificates,
the Securities Administrator is hereby authorized to retain on any Distribution
Date from the amounts payable to the Certificate Distribution Account for
distribution to the Holders of such Certificates amounts sufficient to pay
such
tax. The Securities Administrator will promptly notify in writing the party
liable for any such tax of the amount thereof and the due date for the payment
thereof.
(e)
Notwithstanding anything to the contrary in this Agreement, the Securities
Administrator shall not be obligated to perform any tax preparing, filing or
reporting in connection with the Class X Certificates.
IN
WITNESS WHEREOF, the Depositor, the Owner Trustee and the Securities
Administrator 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:
|
/s/
Xxxxxx X. Xxxxxxxxx, Xx.
|
||||||||||||
|
Name:
|
Xxxxxx X. Xxxxxxxxx, Xx. | ||||||||||||
|
Title:
|
Vice President | ||||||||||||
|
WILMINGTON
TRUST COMPANY,
as
Owner Trustee
|
|||||||||||||
|
By:
|
/s/
Xxxxxxx X. Xxxxx
|
||||||||||||
|
Name:
|
Xxxxxxx X. Xxxxx | ||||||||||||
|
Title:
|
Financial Services Officer | ||||||||||||
|
LASALLE
BANK NATIONAL ASSOCIATION,
not
individually but solely in its capacity as Securities
Administrator
|
|||||||||||||
|
By:
|
/s/
Xxxxx X. Xxxx
|
||||||||||||
|
Name:
|
Xxxxx X. Xxxx | ||||||||||||
|
Title:
|
Vice President | ||||||||||||
ACKNOWLEDGED
AND AGREED
for
purposes of Sections 7.01 and 7.02:
|
EMC
MORTGAGE CORPORATION
as
Seller
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
EXHIBIT
A-1
FORM
OF CLASS I-E CERTIFICATE
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS I-A, CLASS I-M AND CLASS I-B NOTES AS DESCRIBED IN THE AGREEMENT (AS
DEFINED BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR
INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986, AS AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE
MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE
144A
UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
(A
“QIB”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN “INSTITUTIONAL ACCREDITED INVESTOR”
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION
D
UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
SUBJECT TO (A) THE RECEIPT BY THE SECURITIES ADMINISTRATOR AND THE OWNER TRUSTEE
OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE
RECEIPT BY SECURITIES ADMINISTRATOR AND THE OWNER TRUSTEE OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE SECURITIES ADMINISTRATOR THAT SUCH REOFFER, RESALE, PLEDGE
OR
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS
OR
IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION.
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 3.04 AND SECTION 3.07 OF THE
AGREEMENT.
|
Certificate
No. 1
|
Percentage
Interest: 100%
|
|
|
Class
I-E
|
||
|
Date
of Amended and Restated Trust Agreement: As
of April 30, 2007
|
Initial
Certificate Notional Amount of this Certificate as of the related
Cut-off
Date:
$[ ]
|
|
|
Cut-off
Date: April 1, 2007
|
||
|
First
Payment Date:
May
25, 2007
|
Aggregate
Certificate Notional Amount of this Certificate as of the related
Cut-off
Date:
$[ ]
|
|
|
Master
Servicer and Securities Administrator: LaSalle
Bank National Association
|
CUSIP:
[ ]
|
|
|
Last
Scheduled Payment Date: January 25, 2037
|
BEAR
XXXXXXX SECOND LIEN TRUST 2007-1
MORTGAGE-BACKED
CERTIFICATES
SERIES
2007-1
evidencing
a Percentage Interest in the distributions allocable to the Class I-E
Certificates with respect to a Trust Estate consisting primarily of a pool
of
adjustable-rate HELOCs that are secured by first and second liens on one- to
four- family residences and fixed-rate, conventional, closed-end, Alt-A and
sub-prime mortgage loans that are secured by second liens on one- to four-
family residences sold by Bear Xxxxxxx Asset Backed Securities I LLC (“BSABS I
LLC”).
This
Certificate is payable solely from the assets of the Trust Estate relating
to
the Mortgage Loans in loan group I, and does not represent an obligation of
or
interest in BSABS I LLC, the Master Servicer, the Owner Trustee, the Indenture
Trustee or the Securities Administrator referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by BSABS
I LLC, the Master Servicer, the Owner Trustee or the Securities Administrator
or
any of their affiliates or any other person. None of BSABS I LLC, the Master
Servicer or any of their affiliates will have any obligation with respect to
any
certificate or other obligation secured by or payable from payments on the
Certificates.
This
certifies that Bear, Xxxxxxx Securities Corp. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the “Trust
Estate”) generally consisting primarily of a pool of adjustable-rate home equity
lines of credit that are secured by first and second liens on one- to four-
family residences (the “HELOCs”) and fixed-rate, conventional, closed-end, Alt-A
and sub-prime mortgage loans that are secured by second liens on one- to four-
family residences (the “Loans”; and together with the HELOCs, the “Mortgage
Loans”) sold by Bear Xxxxxxx Asset Backed Securities I LLC (“Depositor”). The
Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to Bear Xxxxxxx
Asset Backed Securities I LLC. LaSalle Bank National Association (“LaSalle”)
will act as master servicer of the Mortgage Loans (in that capacity, the “Master
Servicer,” which term includes any successors thereto under the Agreement
referred to below). The Trust Estate was created pursuant to the Trust
Agreement, dated as of April 27, 2007 between the Depositor and Wilmington
Trust
Company (the “Owner Trustee”), as amended and restated by the Amended and
Restated Trust Agreement, dated as of April 30, 2007, among the Depositor,
the
Owner Trustee, and LaSalle as securities administrator (in that capacity, the
“Securities Administrator”) (the “Agreement”) a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to them
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
The
Securities Administrator will distribute on the 25th day of each month, or,
if
such 25th day is not a Business Day, the immediately following Business Day
(each, a “Payment Date”), commencing on the First Payment Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last day (or if such last day is not a Business Day, the
Business Day immediately preceding such last day) of the calendar month
immediately preceding the month in which the Payment Date occurs, an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amounts required to be distributed to the Holders of Certificates of
the
same Class as this Certificate.
Payments
on this Certificate will be made by the Securities Administrator by check mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or by
wire
transfer,
if such
Person so requests by notifying the Securities Administrator in writing as
specified in the Agreement. Notwithstanding the above, the final payment on
this
Certificate will be made after due notice by the Securities Administrator of
the
pendency of such payment and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Securities Administrator
for that purpose and designated in such notice.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Securities Administrator shall require receipt of (i) if such transfer is
purportedly being made in reliance upon Rule 144A under the 1933 Act, written
certifications from the Holder of the Certificate desiring to effect the
transfer, and from such Holder’s prospective transferee, substantially in the
forms attached to the Agreement as Exhibit D and either Exhibit E or Exhibit
F,
as applicable, and (ii) in all other cases, an Opinion of Counsel satisfactory
to it that such transfer may be made without such registration or qualification
(which Opinion of Counsel shall not be an expense of the Trust Estate or of
the
Depositor, the Seller, the Securities Administrator, the Owner Trustee, or
the
Master Servicer in their respective capacities as such), together with copies
of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder’s prospective transferee upon which such Opinion
of Counsel is based. Neither the Depositor nor the Securities Administrator
is
obligated to register or qualify the Class of Certificates specified on the
face
hereof under the 1933 Act or any other securities law or to take any action
not
otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the Owner
Trustee, the Securities Administrator, the Depositor, the Seller and the Master
Servicer 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 this Class I-E Certificate will be made unless the Securities
Administrator shall have received a representation letter, in the form as
described in Section 3.04 and Section 3.07 of the Agreement, stating that the
transferee is not an employee benefit or other plan subject to the prohibited
transaction provisions of ERISA or Section 4975 of the Code (a “Plan”), or any
other person (including an investment manager, a named fiduciary or a trustee
of
any Plan) acting, directly or indirectly, on behalf of or purchasing any
Certificate with “plan assets” of any Plan pursuant to 29 C.F.R. 2510.3-101, as
modified by Section 3(42) of ERISA.
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Estate
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Estate for payment hereunder and that the Securities
Administrator is not liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided in
the
Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the related Certificateholders under the Agreement from time
to
time by the parties thereto with the written consent of the Note Insurer and
the
Holders of the Class or Classes of related Certificates affected thereby
evidencing over 50% of the Voting Rights of such Class or Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or 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 in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Securities Administrator,
the
Owner Trustee and any agent of any of them may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none
of
the Depositor, the Master Servicer, the Securities Administrator, the Owner
Trustee or any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Estate related to the
Mortgage Loans in loan group I created thereby (other than the obligations
to
make payments to related Certificateholders with respect to the termination
of
the Agreement) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Estate relating to the Mortgage Loans
in
loan group I and disposition of all property acquired upon foreclosure or deed
in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds
relating to the Mortgage Loans in loan group I due under the Agreement, or
(ii)
the optional repurchase by the party named in the Indenture dated as of the
April 30, 2007 among Bear Xxxxxxx Second Lien Trust 2007-1, as Issuing Entity,
the Indenture Trustee and the Securities Administrator (the “Indenture”) of all
the Mortgage Loans and other assets of the Trust Estate related to the Mortgage
Loans in loan group I in accordance with the terms of the Indenture. Such
optional repurchase may be made only on or after the first Payment Date on
which
the sum of the Note Principal Balances of the Group I Notes is reduced to an
amount less than or equal to 20% of the sum of the original Note Principal
Balances of the Group I Notes as of the Cut-off Date as set forth in the
Indenture. The exercise of such right will effect the early retirement of the
related Certificates. In no event, however, will the Trust Estate related to
the
Mortgage Loans in loan group I created by the Agreement continue beyond the
earlier of (i) the expiration of 21 years after the death of certain persons
identified in Section 8.06 of the Indenture and (ii) the related Latest Possible
Maturity Date as specified in the Indenture.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Owner Trustee has caused this Certificate to be duly
executed on behalf of the Trust.
Dated:
April 30, 2007
|
BEAR
XXXXXXX SECOND LIEN TRUST 2007-1,
By
Wilmington Trust Company, not in its individual capacity but solely
as
Owner Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class I-E Certificates referred to in the within-mentioned
Agreement.
|
LASALLE
BANK NATIONAL ASSOCIATION, not in its individual capacity but solely
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer
of
registration of such interest to assignee on the Certificate Register of the
Trust Estate.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
Dated:
|
|
|
Signature
by or on behalf of
assignor
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-2
CLASS
I-S CERTIFICATE
THIS
CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON
OR A
DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 3.04 AND 3.07 OF THE AGREEMENT.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SECURITIES
ADMINISTRATOR THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE
OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT
FOR XXXXXXX MAC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH
GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION,
OR
ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION
(OTHER THAN CERTAIN FARMERS’ COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING
THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE
INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION
1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION
775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A),
(B),
(C), (D) OR (E) BEING HEREIN REFERRED TO AS A “DISQUALIFIED ORGANIZATION”), OR
(F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER
IS
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX, (3) SUCH TRANSFEREE IS A UNITED
STATES PERSON, AND (4) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS
RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING
THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR NON-UNITED
STATES PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR NON-UNITED STATES
PERSON, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR
ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF PAYMENTS ON
THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
|
Certificate
No. 1
|
|
|
Class
I-S
|
Percentage
Interest: 100%
|
|
Date
of Amended and Restated Trust Agreement:
As
of April 30, 2007
|
|
|
Cut-off
Date: April 1, 2007
|
|
|
First
Payment Date:
May
25, 2007
|
CUSIP:
[ ]
|
|
Master
Servicer and Securities Administrator:
LaSalle
Bank National Association
|
|
|
Last
Scheduled Payment Date: January 25, 2037
|
BEAR
XXXXXXX SECOND LIEN TRUST 2007-1
MORTGAGE-BACKED
CERTIFICATES
SERIES
2007-1
evidencing
a Percentage Interest in the distributions allocable to the Class I-S
Certificates with respect to a Trust Estate consisting primarily of a pool
of
adjustable-rate HELOCs that are secured by first and second liens on one- to
four- family residences and fixed-rate, conventional, closed-end, Alt-A and
sub-prime mortgage loans that are secured by second liens on one- to four-
family residences sold by Bear Xxxxxxx Asset Backed Securities I LLC (“BSABS I
LLC”).
This
Certificate is payable solely from the assets of the Trust Estate relating
to
the Mortgage Loans in loan group I, and does not represent an obligation of
or
interest in BSABS I LLC, the Master Servicer, the Owner Trustee, the Indenture
Trustee or the Securities Administrator referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by BSABS
I LLC, the Master Servicer, the Owner Trustee or the Securities Administrator
or
any of their affiliates or any other person. None of BSABS I LLC, the Master
Servicer or any of their affiliates will have any obligation with respect to
any
certificate or other obligation secured by or payable from payments on the
Certificates.
This
certifies that Bear, Xxxxxxx Securities Corp. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the “Trust
Estate”) generally consisting primarily of a pool of adjustable-rate home equity
lines of credit that are secured by first and second liens on one- to four-
family residences (the “HELOCs”) and fixed-rate, conventional, closed-end, Alt-A
and sub-prime mortgage loans that are secured by second liens on one- to four-
family residences (the “Loans”; and together with the HELOCs, the “Mortgage
Loans”) sold by Bear Xxxxxxx Asset Backed Securities I LLC (“Depositor”). The
Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to Bear Xxxxxxx
Asset Backed Securities I LLC. LaSalle Bank National Association (“LaSalle”)
will act as master servicer of the Mortgage Loans (in that capacity, the “Master
Servicer,” which term includes any successors thereto under the Agreement
referred to below). The Trust Estate was created pursuant to the Trust
Agreement, dated as of April 27, 2007 between the Depositor and Wilmington
Trust
Company (the “Owner Trustee”), as amended and restated by the Amended and
Restated Trust Agreement, dated as of April 30, 2007, among the Depositor,
the
Owner Trustee, and LaSalle as securities administrator (in that capacity, the
“Securities Administrator”) (the “Agreement”) a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to them
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions set forth in the Agreement to the effect that (i) each person
holding or acquiring any Ownership Interest in this Certificate must be a
Permitted Transferee, (ii) the transfer of any Ownership Interest in this
Certificate will be conditioned upon the delivery to the Owner Trustee, the
Note
Insurer, the Securities Administrator, the Certificate Registrar and the
Depositor of, among other things, an affidavit and agreement to the effect
that
it is a Permitted Transferee, (iii) any attempted or purported transfer of
any
Ownership Interest in this Certificate in violation of such restrictions will
be
absolutely null and void and will vest no rights in the purported transferee,
and (iv) if any person other than a Permitted Transferee acquires any Ownership
Interest in this Certificate in violation of such restrictions, then the
Depositor will have the right, in its sole discretion and without notice to
the
Holder of this Certificate, to sell this Certificate to a purchaser selected
by
the Depositor, which purchaser may be the Depositor, or any affiliate of the
Depositor, on such terms and conditions as the Depositor may
choose.
The
Securities Administrator will distribute on the 25th day of each month, or,
if
such 25th day is not a Business Day, the immediately following Business Day
(each, a “Payment Date”), commencing on the First Payment Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last day (or if such last day is not a Business Day, the
Business Day immediately preceding such last day) of the calendar month
immediately preceding the month in which the Payment Date occurs, an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amounts required to be distributed to the Holders of Certificates of
the
same Class as this Certificate.
Payments
on this Certificate will be made by the Securities Administrator by check mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or by wire transfer, if such Person so
requests by notifying the Securities Administrator in writing as specified
in
the Agreement. Notwithstanding the above, the final payment on this Certificate
will be made after due notice by the Securities Administrator of the pendency
of
such payment and only upon presentation and surrender of this Certificate at
the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice.
No
transfer of this Class I-S Certificate will be made unless the Securities
Administrator shall have received a representation letter, in the form as
described in Section 3.04 and Section 3.07 of the Agreement, stating that the
transferee is not an employee benefit or other plan subject to the prohibited
transaction provisions of ERISA or Section 4975 of the Code (a “Plan”), or any
other person (including an investment manager, a named fiduciary or a trustee
of
any Plan) acting, directly or indirectly, on behalf of or purchasing any
Certificate with “plan assets” of any Plan, pursuant to 29 C.F.R. 2510.3-101, as
modified by Section 3(42) of ERISA.
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Estate
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Estate for payment hereunder and that the Securities
Administrator is not liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided in
the
Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the related Certificateholders under the Agreement from time
to
time by the parties thereto with the written consent of the Note Insurer and
the
Holders of the Class or Classes of related Certificates affected thereby
evidencing over 50% of the Voting Rights of such Class or Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or 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 in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Securities Administrator,
the
Owner Trustee and any agent of any of them may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none
of
Depositor, the Master Servicer, the Securities Administrator, the Owner Trustee
or any such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Estate related to the
Mortgage Loans in loan group I created thereby (other than the obligations
to
make payments to related Certificateholders with respect to the termination
of
the Agreement) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Estate relating to the Mortgage Loans
in
loan group I and disposition of all property acquired upon foreclosure or deed
in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds
relating to the Mortgage Loans in loan group I due under the Agreement, or
(ii)
the optional repurchase by the party named in the Indenture dated as of the
April 30, 2007 among Bear Xxxxxxx Second Lien Trust 2007-1, as Issuing Entity,
the Indenture Trustee and the Securities Administrator (the “Indenture”) of all
the Mortgage Loans and other assets of the Trust Estate related to the Mortgage
Loans in loan group I in accordance with the terms of the Indenture. Such
optional repurchase may be made only on or after the first Payment Date on
which
the sum of the Note Principal Balances of the Group I Notes is reduced to an
amount less than or equal to 20% of the sum of the original Note Principal
Balances of the Group I Notes as of the Cut-off Date as set forth in the
Indenture. The exercise of such right will effect the early retirement of the
related Certificates. In no event, however, will the Trust Estate related to
the
Mortgage Loans in loan group I created by the Agreement continue beyond the
earlier of (i) the expiration of 21 years after the death of certain persons
identified in Section 8.06 of the Indenture and (ii) the related Latest Possible
Maturity Date as specified in the Indenture.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Owner Trustee has caused this Certificate to be duly
executed on behalf of the Trust.
Dated:
April 30, 2007
|
BEAR
XXXXXXX SECOND LIEN TRUST 2007-1,
By
Wilmington Trust Company, not in its individual capacity but
solely as
Owner Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class I-S Certificates referred to in the within-mentioned
Agreement.
|
LASALLE
BANK NATIONAL ASSOCIATION, not in its individual capacity but
solely as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer
of
registration of such interest to assignee on the Certificate Register of the
Trust Estate.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
Dated:
|
|
|
Signature
by or on behalf of
assignor
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-3
CLASS
[I][II][III]-R[-][1][2] CERTIFICATE
THIS
CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON
OR A
DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 3.04 AND SECTION 3.07 OF THE
AGREEMENT.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER SERVICER
AND
THE SECURITIES ADMINISTRATOR THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED
STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED
STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN
AN
INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT
TO
TAX AND EXCEPT FOR XXXXXXX MAC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT
SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING,
(C)
ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS’ COOPERATIVES DESCRIBED IN SECTION
521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN
SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER
SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A “DISQUALIFIED
ORGANIZATION”), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE
OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX, (3) SUCH
TRANSFEREE IS A UNITED STATES PERSON, AND (4) SUCH TRANSFEREE SATISFIES CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR
ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED
ORGANIZATION OR NON-UNITED STATES PERSON, SUCH REGISTRATION SHALL BE DEEMED
TO
BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED
TO
BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED
TO,
THE RECEIPT OF PAYMENTS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE
BY
ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH.
|
Certificate
No. 1
|
|
|
Class
[I][II][III]-R[-][1][2]
|
Percentage
Interest: 100%
|
|
Date
of Amended and Restated Trust Agreement: As of April 30,
2007
|
|
|
Cut-off
Date: April 1, 2007
|
|
|
First
Payment Date:
May
25, 2007
|
CUSIP:
[ ]
|
|
Master
Servicer and Securities Administrator:
LaSalle
Bank National Association
|
|
|
Last
Scheduled Payment Date: [ ]
|
BEAR
XXXXXXX SECOND LIEN TRUST 2007-1
MORTGAGE-BACKED
CERTIFICATES
SERIES
2007-1
evidencing
a Percentage Interest in the distributions allocable to the Class
[I][II][III]-R[-][1][2] Certificates with respect to a Trust Estate consisting
primarily of a pool of adjustable-rate HELOCs that are secured by first and
second liens on one- to four- family residences and fixed-rate, conventional,
closed-end, Alt-A and sub-prime mortgage loans that are secured by second liens
on one- to four- family residences sold by Bear Xxxxxxx Asset Backed Securities
I LLC (“BSABS I LLC”).
This
Certificate is payable solely from the assets of the Trust Estate relating
to
the Mortgage Loans in loan group [I][II][III], and does not represent an
obligation of or interest in BSABS I LLC, the Master Servicer, the Owner
Trustee, the Indenture Trustee or the Securities Administrator referred to
below
or any of their affiliates or any other person. Neither this Certificate nor
the
underlying Mortgage Loans are guaranteed or insured by any governmental entity
or by BSABS I LLC, the Master Servicer, the Owner Trustee or the Securities
Administrator or any of their affiliates or any other person. None of BSABS
I
LLC, the Master Servicer or any of their affiliates will have any obligation
with respect to any certificate or other obligation secured by or payable from
payments on the Certificates.
This
certifies that Bear, Xxxxxxx Securities Corp. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the “Trust
Estate”) generally consisting primarily of a pool of adjustable-rate home equity
lines of credit that are secured by first and second liens on one- to four-
family residences (the “HELOCs”) and fixed-rate, conventional, closed-end, Alt-A
and sub-prime mortgage loans that are secured by second liens on one- to four-
family residences (the “Loans”; and together with the HELOCs, the “Mortgage
Loans”) sold by Bear Xxxxxxx Asset Backed Securities I LLC (“Depositor”). The
Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to Bear Xxxxxxx
Asset Backed Securities I LLC. LaSalle Bank National Association (“LaSalle”)
will act as master servicer of the Mortgage Loans (in that capacity, the “Master
Servicer,” which term includes any successors thereto under the Agreement
referred to below). The Trust Estate was created pursuant to the Trust
Agreement, dated as of April 27, 2007 between the Depositor and Wilmington
Trust
Company (the “Owner Trustee”), as amended and restated by the Amended and
Restated Trust Agreement, dated as of April 30, 2007, among the Depositor,
the
Owner Trustee, and LaSalle as securities administrator (in that capacity, the
“Securities Administrator”) (the “Agreement”) a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to them
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions set forth in the Agreement to the effect that (i) each person
holding or acquiring any Ownership Interest in this Certificate must be a
Permitted Transferee, (ii) the transfer of any Ownership Interest in this
Certificate will be conditioned upon the delivery to the Owner Trustee, the
Note
Insurer, the Securities Administrator, the Certificate Registrar and the
Depositor of, among other things, an affidavit and agreement to the effect that
it is a Permitted Transferee, (iii) any attempted or purported transfer of
any
Ownership Interest in this Certificate in violation of such restrictions will
be
absolutely null and void and will vest no rights in the purported transferee,
and (iv) if any person other than a Permitted Transferee acquires any Ownership
Interest in this Certificate in violation of such restrictions, then the
Depositor will have the right, in its sole discretion and without notice to
the
Holder of this Certificate, to sell this Certificate to a purchaser selected
by
the Depositor, which purchaser may be the Depositor, or any affiliate of the
Depositor, on such terms and conditions as the Depositor may
choose.
The
Securities Administrator will distribute on the 25th day of each month, or,
if
such 25th day is not a Business Day, the immediately following Business Day
(each, a “Payment Date”), commencing on the First Payment Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last day (or if such last day is not a Business Day, the
Business Day immediately preceding such last day) of the calendar month
immediately preceding the month in which the Payment Date occurs, an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amounts required to be distributed to the Holders of Certificates of
the
same Class as this Certificate.
Payments
on this Certificate will be made by the Securities Administrator by check mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or by wire transfer, if such Person so
requests by notifying the Securities Administrator in writing as specified
in
the Agreement. Notwithstanding the above, the final payment on this Certificate
will be made after due notice by the Securities Administrator of the pendency
of
such payment and only upon presentation and surrender of this Certificate at
the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice.
No
transfer of this Class [I][II][III]-R[-][1][2] Certificate will be made unless
the Securities Administrator shall have received a representation letter, in
the
form as described in Section 3.04 and Section 3.07 of the Agreement, stating
that the transferee is not an employee benefit or other plan subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code (a
“Plan”), or any other person (including an investment manager, a named fiduciary
or a trustee of any Plan) acting, directly or indirectly, on behalf of or
purchasing any Certificate with “plan assets” of any Plan, pursuant to 29 C.F.R.
2510.3-101, as modified by Section 3(42) of ERISA.
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Estate
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Estate for payment hereunder and that the Securities
Administrator is not liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided in
the
Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the related Certificateholders under the Agreement from time
to
time by the parties thereto with the written consent of the Note Insurer and
the
Holders of the Class or Classes of related Certificates affected thereby
evidencing over 50% of the Voting Rights of such Class or Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or 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 in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Securities Administrator,
the
Owner Trustee and any agent of any of them may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none
of
Depositor, the Master Servicer, the Securities Administrator, the Owner Trustee
or any such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Estate related to the
Mortgage Loans in loan group [I][II][III] created thereby (other than the
obligations to make payments to related Certificateholders with respect to
the
termination of the Agreement) shall terminate upon the earlier of (i) the later
of (A) the maturity or other liquidation (or Advance with respect thereto)
of
the last Mortgage Loan remaining in the Trust Estate relating to the Mortgage
Loans in loan group [I][II][III] and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds relating to the Mortgage Loans in loan group
[I][II][III] due under the Agreement, or (ii) the optional repurchase by the
party named in the Indenture dated as of the April 30, 2007 among Bear Xxxxxxx
Second Lien Trust 2007-1, as Issuing Entity, the Indenture Trustee and the
Securities Administrator (the “Indenture”) of all the Mortgage Loans and other
assets of the Trust Estate related to the Mortgage Loans in loan group
[I][II][III] in accordance with the terms of the Indenture. Such optional
repurchase may be made only on or after the first Payment Date on which the
sum
of the Note Principal Balances of the Group [I][II][III] Notes is reduced to
an
amount less than or equal to 20% of the sum of the original Note Principal
Balances of the Group [I][II][III] Notes as of the Cut-off Date as set forth
in
the Indenture. The exercise of such right will effect the early retirement
of
the related Certificates. In no event, however, will the Trust Estate related
to
the Mortgage Loans in loan group [I][II][III] created by the Agreement continue
beyond the earlier of (i) the expiration of 21 years after the death of certain
persons identified in Section 8.06 of the Indenture and (ii) the related Latest
Possible Maturity Date as specified in the Indenture.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Owner Trustee has caused this Certificate to be duly
executed on behalf of the Trust.
Dated:
April 30, 2007
|
BEAR
XXXXXXX SECOND LIEN TRUST 2007-1,
By
Wilmington Trust Company, not in its individual capacity but
solely as
Owner Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class [I][II][III]-R[-][1][2] Certificates referred to in the
within-mentioned Agreement.
|
LASALLE
BANK NATIONAL ASSOCIATION, not in its individual capacity but
solely as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer
of
registration of such interest to assignee on the Certificate Register of the
Trust Estate.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
Dated:
|
|
|
Signature
by or on behalf of
assignor
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-4
CLASS [I][II][III]-X
CERTIFICATE
THIS
CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY DISTRIBUTIONS
IN
RESPECT OF PRINCIPAL OR INTEREST.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE
MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE
144A
UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
(A
“QIB”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN “INSTITUTIONAL ACCREDITED INVESTOR”
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION
D
UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
SUBJECT TO (A) THE RECEIPT BY THE SECURITIES ADMINISTRATOR OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY
THE
SECURITIES ADMINISTRATOR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SECURITIES
ADMINISTRATOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER
APPLICABLE JURISDICTION.
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTIONS 3.04 AND 3.07 OF THE
AGREEMENT.
|
Certificate
No.1
|
|
|
Class
[I][II][III]-X
|
Percentage
Interest: 100%
|
|
Date
of Amended and Restated Trust Agreement
and
Cut-off Date: April 30, 2007
|
|
|
Master
Servicer and Securities Administrator:
LaSalle
Bank National Association
|
CUSIP:
[ ]
|
BEAR
XXXXXXX SECOND LIEN TRUST 2007-1
MORTGAGE-BACKED
CERTIFICATE
SERIES
2007-1
evidencing
a fractional undivided interest in the distributions allocable to the Class
X
Certificates.
This
Certificate is entitled to distributions with respect to certain Mortgage Loans
that are initially assets of the Trust Estate relating to the Group [I][II][III]
Mortgage Loans, and does not represent an obligation of or interest in Bear
Xxxxxxx Asset Backed Securities I LLC, the Master Servicer, the Owner Trustee,
the Indenture Trustee or the Securities Administrator referred to below or
any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity
or by Bear Xxxxxxx Asset Backed Securities I LLC, the Master Servicer, the
Owner
Trustee or the Securities Administrator or any of their affiliates or any other
person. None of Bear Xxxxxxx Asset Backed Securities I LLC, the Master Servicer
or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This
certifies that Bear, Xxxxxxx Securities Corp. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the “Trust
Estate”) generally consisting primarily of a pool of adjustable-rate home equity
lines of credit that are secured by first and second liens on one- to four-
family residences (the “HELOCs”) and fixed-rate, conventional, closed-end, Alt-A
and sub-prime mortgage loans that are secured by second liens on one- to four-
family residences (the “Mortgage Loans”; and together with the HELOCs, the
“Mortgage Loans”) sold by Bear Xxxxxxx Asset Backed Securities I LLC
(“Depositor”). The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”)
to Bear Xxxxxxx Asset Backed Securities I LLC. LaSalle Bank National Association
(“LaSalle”) will act as master servicer of the Mortgage Loans (in that capacity,
the “Master Servicer,” which term includes any successors thereto under the
Agreement referred to below). The Trust Estate was created pursuant to the
Trust
Agreement, dated as of April 27, 2007 between the Depositor and Wilmington
Trust
Company (the “Owner Trustee”), as amended and restated by the Amended and
Restated Trust Agreement, dated as of April 30, 2007, among the Depositor,
the
Owner Trustee, and LaSalle as securities administrator (in that capacity, the
“Securities Administrator”) (the “Agreement”) a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to them
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
No
transfer of this Class [I][II][III]-X
Certificate will be made unless the Securities Administrator shall have received
a representation letter in the form as described in Section 3.04 and Section
3.07 of the Agreement, stating that the transferee is not an employee benefit
or
other plan subject to the prohibited transaction provisions of ERISA or Section
4975 of the Code (a “Plan”), or any other person (including an investment
manager, a named fiduciary or a trustee of any Plan) acting, directly or
indirectly, on behalf of or purchasing any Certificate with “plan assets” of any
Plan pursuant to 29 C.F.R. 2510.3-101, as modified by Section 3(42) of
ERISA.
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Estate
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate agrees that it will
look solely to the Trust Estate for payment hereunder and that the Securities
Administrator is not liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided in
the
Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator and the Indenture Trustee.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the related Certificateholders under the Agreement from time
to
time by the parties thereto with the written consent of the Note Insurer and
the
Holders of the Class or Classes of related Certificates affected thereby
evidencing over 50% of the Voting Rights of such Class or Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or 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 in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Securities Administrator,
the
Owner Trustee and any agent of any of them may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none
of
the Depositor, the Master Servicer, the Securities Administrator, the Owner
Trustee or any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Estate related to the
Mortgage Loans in loan group [I][II][III] created thereby (other than the
obligations to make payments to related Certificateholders with respect to
the
termination of the Agreement) shall terminate upon the earlier of (i) the later
of (A) the maturity or other liquidation (or Advance with respect thereto)
of
the last Mortgage Loan remaining in the Trust Estate relating to the Mortgage
Loans in loan group [I][II][III] and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds relating to the Mortgage Loans in loan group
[I][II][III] due under the Agreement, or (ii) the optional repurchase by the
party named in the Indenture dated as of the April 30, 2007 among Bear Xxxxxxx
Second Lien Trust 2007-1, as Issuing Entity, the Indenture Trustee and the
Securities Administrator (the “Indenture”) of all the Mortgage Loans and other
assets of the Trust Estate related to the Mortgage Loans in loan group
[I][II][III] in accordance with the terms of the Indenture. Such optional
repurchase may be made only on or after the first Payment Date on which the
sum
of the Note Principal Balances of the Group [I][II][III] Notes is reduced to
an
amount less than or equal to 20% of the sum of the original Note Principal
Balances of the Group [I][II][III] Notes as of the Cut-off Date as set forth
in
the Indenture. The exercise of such right will effect the early retirement
of
the related Certificates. In no event, however, will the Trust Estate related
to
the Mortgage Loans in loan group [I][II][III] created by the Agreement continue
beyond the earlier of (i) the expiration of 21 years after the death of certain
persons identified in Section 8.06 of the Indenture and (ii) the related Latest
Possible Maturity Date as specified in the Indenture.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Owner Trustee has caused this Certificate to be duly
executed on behalf of the Trust.
Dated:
April 30, 2007
|
BEAR
XXXXXXX SECOND LIEN TRUST 2007-1,
By
Wilmington Trust Company, not in its individual capacity but
solely as
Owner Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class [I][II][III]-X Certificates referred to in the within-mentioned
Agreement.
|
LASALLE
BANK NATIONAL ASSOCIATION, not in its individual capacity but
solely as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by the
within Asset-Backed Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of the
Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
Dated:
|
|
|
Signature
by or on behalf of
assignor
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
A-5
FORM
OF CLASS [II][III]-C CERTIFICATE
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS [II][III]-A NOTES AND CLASS [II][III]-B NOTES AS DESCRIBED IN THE
AGREEMENT (AS DEFINED BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR
INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986, AS AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE
MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE
144A
UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
(A
“QIB”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN “INSTITUTIONAL ACCREDITED INVESTOR”
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION
D
UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
SUBJECT TO (A) THE RECEIPT BY THE SECURITIES ADMINISTRATOR AND THE OWNER TRUSTEE
OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE
RECEIPT BY SECURITIES ADMINISTRATOR AND THE OWNER TRUSTEE OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE SECURITIES ADMINISTRATOR THAT SUCH REOFFER, RESALE, PLEDGE
OR
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS
OR
IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION.
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 3.04 AND SECTION 3.07 OF THE
AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE PROPOSED TRANSFEREE OF
SUCH CERTIFICATE (1) PROVIDES TO THE SECURITIES ADMINISTRATOR THE APPROPRIATE
TAX CERTIFICATION FORM THAT WOULD ELIMINATE ANY WITHHOLDING OR DEDUCTION FOR
TAXES FROM AMOUNTS PAYABLE BY THE RELATED SWAP PROVIDER, PURSUANT TO THE RELATED
SWAP AGREEMENT, TO THE SWAP ADMINISTRATOR ON BEHALF OF THE RELATED SUPPLEMENTAL
INTEREST TRUST (I.E., IRS FORM W-9 OR IRS FORM W-8BEN, W-8IMY, W-8EXP OR W-8ECI,
AS APPLICABLE (OR ANY SUCCESSOR FORM THERETO), TOGETHER WITH ANY APPLICABLE
ATTACHMENTS) AND (2) AGREES TO UPDATE SUCH FORM (A) UPON EXPIRATION OF ANY
SUCH
FORM, (B) AS REQUIRED UNDER THEN APPLICABLE U.S. TREASURY REGULATIONS AND (C)
PROMPTLY UPON LEARNING THAT SUCH FORM HAS BECOME OBSOLETE OR INCORRECT, EACH
AS
A CONDITION TO SUCH TRANSFER. IN ADDITION, NO TRANSFER OF THIS CERTIFICATE
SHALL
BE MADE IF SUCH TRANSFER WOULD CAUSE THE RELATED SUPPLEMENTAL INTEREST TRUST
TO
BE BENEFICIALLY OWNED BY TWO OR MORE PERSONS FOR FEDERAL INCOME TAX PURPOSES,
OR
CONTINUE TO BE SO TREATED, UNLESS (I) EACH PROPOSED TRANSFEREE OF SUCH
CERTIFICATE COMPLIES WITH THE FOREGOING CONDITIONS, AND (II) THE PROPOSED
MAJORITY HOLDER OF THE CLASS [II][III]-C CERTIFICATES (OR EACH HOLDER, IF THERE
IS OR WOULD BE NO MAJORITY HOLDER) (X) PROVIDES, OR CAUSES TO BE PROVIDED,
ON
BEHALF OF THE RELATED SUPPLEMENTAL INTEREST TRUST, IF
APPLICABLE, TO
THE SECURITIES ADMINISTRATOR, THE APPROPRIATE TAX CERTIFICATION FORM THAT WOULD
BE REQUIRED FROM THE RELATED SUPPLEMENTAL INTEREST TRUST TO ELIMINATE ANY
WITHHOLDING OR DEDUCTION FOR TAXES FROM AMOUNTS PAYABLE BY THE RELATED SWAP
PROVIDER, PURSUANT TO THE RELATED SWAP AGREEMENT, TO THE SWAP ADMINISTRATOR
ON
BEHALF OF THE RELATED SUPPLEMENTAL INTEREST TRUST (I.E., IRS FORM W-9 OR IRS
FORM W-8BEN, W-8IMY, W-8EXP OR W-8ECI, AS APPLICABLE (OR ANY SUCCESSOR FORM
THERETO), TOGETHER WITH ANY APPLICABLE ATTACHMENTS) AND (Y) AGREES TO UPDATE
SUCH FORM (A) UPON EXPIRATION OF SUCH FORM, (B) AS REQUIRED UNDER THEM
APPLICABLE U.S. TREASURY REGULATIONS AND (C) PROMPTLY UPON LEARNING THAT SUCH
FORM HAS BECOME OBSOLETE OR INCORRECT. UNDER THE AGREEMENT, UPON RECEIPT OF
ANY
TAX CERTIFICATION FORM PURSUANT TO THESE TRANSFER RESTRICTIONS FROM A HOLDER
OR
PROPOSED TRANSFEREE OF THIS CERTIFICATE, THE SECURITIES ADMINISTRATOR SHALL
FORWARD SUCH TAX CERTIFICATION FORM TO THE RELATED SUPPLEMENTAL INTEREST TRUST
TRUSTEE. THE RELATED SUPPLEMENTAL INTEREST TRUST TRUSTEE SHALL FORWARD SUCH
TAX
CERTIFICATION FORM PROVIDED TO IT TO THE RELATED SWAP PROVIDER. EACH HOLDER
OF
THIS CERTIFICATE AND EACH TRANSFEREE THEREOF SHALL BE DEEMED TO HAVE CONSENTED
TO THE RELATED SUPPLEMENTAL INTEREST TRUST TRUSTEE FORWARDING TO THE RELATED
SWAP PROVIDER ANY TAX CERTIFICATION FORM IT HAS PROVIDED AND UPDATED IN
ACCORDANCE WITH THESE TRANSFER RESTRICTIONS. ANY PURPORTED SALES OR TRANSFERS
OF
THIS CERTIFICATE TO A TRANSFEREE WHICH DOES NOT COMPLY WITH THESE REQUIREMENTS
SHALL BE DEEMED NULL AND VOID UNDER THE AGREEMENT.
|
Certificate
No. 1
|
Percentage
Interest: 100%
|
|
|
Class
[II][III]-C
|
||
|
Date
of Amended and Restated Trust Agreement: As of April 30,
2007
|
Initial
Certificate Notional Amount of this Certificate as of the related
Cut-off
Date:
$[ ]
|
|
|
Cut-off
Date: April 1, 2007
|
||
|
First
Payment Date:
May
25, 2007
|
Aggregate
Certificate Notional Amount of this Certificate as of the related
Cut-off
Date:
$[ ]
|
|
|
Master
Servicer and Securities Administrator:
LaSalle
Bank National Association
|
CUSIP:
[ ]
|
|
|
Last
Scheduled Payment Date: [ ]
|
BEAR
XXXXXXX SECOND LIEN TRUST 2007-1
MORTGAGE-BACKED
CERTIFICATES
SERIES
2007-1
evidencing
a Percentage Interest in the distributions allocable to the Class [II][III]-C
Certificates with respect to a Trust Estate consisting primarily of a pool
of
adjustable-rate HELOCs that are secured by first and second liens on one- to
four- family residences and fixed-rate, conventional, closed-end, Alt-A and
sub-prime mortgage loans that are secured by second liens on one- to four-
family residences sold by Bear Xxxxxxx Asset Backed Securities I LLC (“BSABS I
LLC”).
This
Certificate is payable solely from the assets of the Trust Estate relating
to
the Mortgage Loans in loan group [II][III], and does not represent an obligation
of or interest in BSABS I LLC, the Master Servicer, the Owner Trustee, the
Indenture Trustee or the Securities Administrator referred to below or any
of
their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity
or by BSABS I LLC, the Master Servicer, the Owner Trustee or the Securities
Administrator or any of their affiliates or any other person. None of BSABS
I
LLC, the Master Servicer or any of their affiliates will have any obligation
with respect to any certificate or other obligation secured by or payable from
payments on the Certificates.
This
certifies that Bear, Xxxxxxx Securities Corp. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the “Trust
Estate”) generally consisting primarily of a pool of adjustable-rate home equity
lines of credit that are secured by first and second liens on one- to four-
family residences (the “HELOCs”) and fixed-rate, conventional, closed-end, Alt-A
and sub-prime mortgage loans that are secured by second liens on one- to four-
family residences (the “Loans”; and together with the HELOCs, the “Mortgage
Loans”) sold by Bear Xxxxxxx Asset Backed Securities I LLC (“Depositor”). The
Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to Bear Xxxxxxx
Asset Backed Securities I LLC. LaSalle Bank National Association (“LaSalle”)
will act as master servicer of the Mortgage Loans (in that capacity, the “Master
Servicer,” which term includes any successors thereto under the Agreement
referred to below). The Trust Estate was created pursuant to the Trust
Agreement, dated as of April 27, 2007 between the Depositor and Wilmington
Trust
Company (the “Owner Trustee”), as amended and restated by the Amended and
Restated Trust Agreement, dated as of April 30, 2007, among the Depositor,
the
Owner Trustee, and LaSalle as securities administrator (in that capacity, the
“Securities Administrator”) (the “Agreement”) a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to them
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
The
Securities Administrator will distribute on the 25th day of each month, or,
if
such 25th day is not a Business Day, the immediately following Business Day
(each, a “Payment Date”), commencing on the First Payment Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last day (or if such last day is not a Business Day, the
Business Day immediately preceding such last day) of the calendar month
immediately preceding the month in which the Payment Date occurs, an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amounts required to be distributed to the Holders of Certificates of
the
same Class as this Certificate.
Payments
on this Certificate will be made by the Securities Administrator by check mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or by wire transfer, if such Person so
requests by notifying the Securities Administrator in writing as specified
in
the Agreement. Notwithstanding the above, the final payment on this Certificate
will be made after due notice by the Securities Administrator of the pendency
of
such payment and only upon presentation and surrender of this Certificate at
the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Securities Administrator shall require receipt of (i) if such transfer is
purportedly being made in reliance upon Rule 144A under the 1933 Act, written
certifications from the Holder of the Certificate desiring to effect the
transfer, and from such Holder’s prospective transferee, substantially in the
forms attached to the Agreement as Exhibit D and either Exhibit E or Exhibit
F,
as applicable, and (ii) in all other cases, an Opinion of Counsel satisfactory
to it that such transfer may be made without such registration or qualification
(which Opinion of Counsel shall not be an expense of the Trust Estate or of
the
Depositor, the Seller, the Securities Administrator, the Owner Trustee, or
the
Master Servicer in their respective capacities as such), together with copies
of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder’s prospective transferee upon which such Opinion
of Counsel is based. Neither the Depositor nor the Securities Administrator
is
obligated to register or qualify the Class of Certificates specified on the
face
hereof under the 1933 Act or any other securities law or to take any action
not
otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the Owner
Trustee, the Securities Administrator, the Depositor, the Seller and the Master
Servicer 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 this Class [II][III]-C Certificate will be made unless the
Securities Administrator shall have received a representation letter, in the
form as described in Section 3.04 and Section 3.07 of the Agreement, stating
that the transferee is not an employee benefit or other plan subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code (a
“Plan”), or any other person (including an investment manager, a named fiduciary
or a trustee of any Plan) acting, directly or indirectly, on behalf of or
purchasing any Certificate with “plan assets” of any Plan pursuant to 29 C.F.R.
2510.3-101, as modified by Section 3(42) of ERISA.
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Estate
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Estate for payment hereunder and that the Securities
Administrator is not liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided in
the
Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the related Certificateholders under the Agreement from time
to
time by the parties thereto with the written consent of the Note Insurer and
the
Holders of the Class or Classes of related Certificates affected thereby
evidencing over 50% of the Voting Rights of such Class or Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or 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 in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Securities Administrator,
the
Owner Trustee and any agent of any of them may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none
of
the Depositor, the Master Servicer, the Securities Administrator, the Owner
Trustee or any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Estate related to the
Mortgage Loans in loan group [II][III] created thereby (other than the
obligations to make payments to related Certificateholders with respect to
the
termination of the Agreement) shall terminate upon the earlier of (i) the later
of (A) the maturity or other liquidation (or Advance with respect thereto)
of
the last Mortgage Loan remaining in the Trust Estate relating to the Mortgage
Loans in loan group [II][III] and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds relating to the Mortgage Loans in loan group [II][III]
due under the Agreement, or (ii) the optional repurchase by the party named
in
the Indenture dated as of the April 30, 2007 among Bear Xxxxxxx Second Lien
Trust 2007-1, as Issuing Entity, the Indenture Trustee and the Securities
Administrator (the “Indenture”) of all the Mortgage Loans and other assets of
the Trust Estate related to the Mortgage Loans in loan group [II][III] in
accordance with the terms of the Indenture. Such optional repurchase may be
made
only on or after the first Payment Date on which the sum of the Note Principal
Balances of the Group [II][III] Notes is reduced to an amount less than or
equal
to 20% of the sum of the original Note Principal Balances of the Group [II][III]
Notes as of the Cut-off Date as set forth in the Indenture. The exercise of
such
right will effect the early retirement of the related Certificates. In no event,
however, will the Trust Estate related to the Mortgage Loans in loan group
[II][III] created by the Agreement continue beyond the earlier of (i) the
expiration of 21 years after the death of certain persons identified in Section
8.06 of the Indenture and (ii) the related Latest Possible Maturity Date as
specified in the Indenture.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Owner Trustee has caused this Certificate to be duly
executed on behalf of the Trust.
Dated:
April 30, 2007
|
BEAR
XXXXXXX SECOND LIEN TRUST 2007-1,
By
Wilmington Trust Company, not in its individual capacity
but solely as
Owner Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class [II][III]-C Certificates referred to in the within-mentioned
Agreement.
|
LASALLE
BANK NATIONAL ASSOCIATION, not in its individual capacity
but solely as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer
of
registration of such interest to assignee on the Certificate Register of the
Trust Estate.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
Dated:
|
|
|
Signature
by or on behalf of
assignor
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
,
|
||||
|
.
|
|||||
|
This
information is provided by
|
,
|
|||
|
the
assignee named above, or
|
,
|
|||
|
as
its agent.
|
||||
EXHIBIT
B
CERTIFICATE
OF TRUST OF
Bear
Xxxxxxx Second Lien Trust 2007-1
THIS
Certificate of Trust of Bear Xxxxxxx Second Lien Trust 2007-1 (the “Trust”) is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a statutory trust under the Delaware Statutory Trust Act (12
Del.
Code,
§
3801
et seq.) (the “Act”).
1.
Name.
The
name of the statutory trust formed by this Certificate is Bear Xxxxxxx Second
Lien 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, Attn: Corporate Trust
Administration.
3.
Effective
Date.
This
Certificate of Trust shall be effective upon filing.
IN
WITNESS WHEREOF, the undersigned has duly executed this Certificate of Trust
in
accordance with Section 3811(a) of the Act.
|
WILMINGTON
TRUST COMPANY,
not
in its individual capacity but solely as Owner
Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
Title:
|
|
||||||||||||
EXHIBIT
C
FORM
OF TRANSFER AFFIDAVIT AND AGREEMENT
| Affidavit pursuant to Section 860E(e)(4) of the Internal Revenue Code of 1986, as amended, and for other purposes |
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
The
undersigned is the [Title of Officer] of [Name of Transferee] (the “Investor”),
the proposed transferee of an ownership interest in the Bear Xxxxxxx Second
Lien
Trust 2007-1, Mortgage-Backed Notes, Series 2007-1, Class [S][R] Certificates
(the “Certificates”) issued pursuant to the Amended and Restated Trust Agreement
(the “Agreement”) relating to the Certificates, dated as of April 30, 2007,
among Bear Xxxxxxx Asset Backed Securities I LLC, as depositor (the
“Depositor”), Wilmington Trust Company, as owner trustee (“the Trustee”) and
LaSalle Bank National Association, as securities administrator (the “Securities
Administrator”), and makes this affidavit on behalf of the Investor for the
benefit of the Depositor, the Securities Administrator, the Note Insurer, the
Certificate Registrar and the Trustee. Capitalized terms used, but not defined
herein, shall have the meanings ascribed to such terms in the Agreement.
1. The
Investor is, as of the date hereof, and will be, as of the date of the Transfer,
a Permitted Transferee. The Investor is not acquiring its ownership interest
in
the Certificates for the account of a Person other than a Permitted Transferee.
2. The
Investor has been advised and understands that (i) a tax will be imposed on
Transfers of the Certificates to Persons that are not Permitted Transferees;
(ii) such tax will be imposed on the transferor, or, if such Transfer is
through an agent (which includes a broker, nominee or middleman) for a Person
that is not a Permitted Transferee, on the agent; and (iii) the Person
otherwise liable for the tax shall be relieved of liability for the tax if
a
subsequent Transferee furnishes to such Person an affidavit that such subsequent
Transferee is a Permitted Transferee, and at the time of Transfer, such Person
does not have actual knowledge that the affidavit is false.
3. The
Investor has been advised and understands that a tax will be imposed on a
“pass-through entity” holding the Certificates if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Investor understands that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such record holder
is a Permitted Transferee and the pass-through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass-through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury regulations, Persons holding
interests in pass-through entities as a nominee for another
Person.)
4. The
Investor has reviewed the provisions of Section 3.04(g) of the Agreement and
understands the legal consequences of the acquisition of an ownership interest
in the Certificates, including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding any prohibited
Transfers and mandatory sales. The Investor expressly agrees to be bound by,
and
to abide by, such provisions of the Agreement and the restrictions noted on
the
face of the Certificates. The Investor understands and agrees that any breach
of
any of the representations included herein shall render the Transfer of the
Certificates to the Investor contemplated hereby null and void. The Investor
consents to any amendment of the Agreement that shall be deemed necessary by
the
Depositor (upon advice of nationally recognized counsel) to constitute a
reasonable arrangement to ensure that the Certificates will not be owned
directly or indirectly by a Person other than a Permitted
Transferee.
5. The
Investor agrees not to Transfer the Certificates, or cause the Transfer of
the
Certificates by a Person for whom the Investor is acting as nominee, trustee
or
agent, in each case unless it has received an affidavit in substantially the
same form as this affidavit containing these same representations and covenants
from the subsequent transferee. In connection with any such Transfer by the
Investor, the Investor agrees to deliver to the Trustee, the Securities
Administrator, the Note Insurer, the Certificate Registrar and the Depositor
a
certificate substantially in the form set forth as Exhibit G to the
Agreement to the effect that the Investor has no actual knowledge that the
Person to which the Transfer is to be made is not a Permitted
Transferee.
6. The
Investor has historically paid its debts as they have come due, intends to
pay
its debts as they come due in the future, and understands that the taxes
associated with holder an ownership interest in the Certificates may exceed
the
cash flow with respect thereto in some or all periods and intends to pay such
taxes as they become due. The Investor does not have the intention, and no
purpose of the Transfer of the Certificate to the Investor is, to impede the
assessment or collection of any tax legally required to be paid with respect
to
the Certificates.
7. The
Investor’s U.S. taxpayer identification number is [_____________].
8. The
Investor is a “United States person” within the meaning of Section 7701(a)(30)
of the Code (a “United States Person”).
9. The
Investor is aware that the Certificates may be a “noneconomic residual interest”
within the meaning of Treasury regulations promulgated under Section 860E of
the
Code and that the transferor of a noneconomic residual interest will remain
liable for any taxes due with respect to the income on such residual interest,
unless no significant purpose of the transfer was to impede the assessment
or
collection of tax.
10. The
Investor will not cause income from the Certificates to be attributable to
a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Investor or any other United States
Person.
11. Check
one
of the following:
o The
Transfer
of the Certificates complies with U.S. Treasury Regulation Sections
1.860E-1(c)(7) and (8) and, accordingly:
(i) the
present value of the anticipated tax liabilities associated with holding the
Certificates does not exceed the sum of:
|
(a)
|
the
present value of any consideration given to the Investor to acquire
such
Certificates;
|
|
(b)
|
the
present value of the expected future distributions on such Certificates;
and
|
|
(c)
|
the
present value of the anticipated tax savings associated with holding
such
Certificate as the related REMIC generates losses;
and
|
(ii) the
Transfer of the Certificates will not result in such Certificates being held,
directly or indirectly, by a foreign permanent establishment or fixed base,
within the meaning of an applicable income tax treaty, of the Investor or any
other United States Person.
For
purposes of the calculation in clause (i) above, (x) the Investor is assumed
to
pay tax at the highest rate currently specified in Section 11(b)(1) of the
Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of
the highest rate specified in Section 11(b)(1) of the Code if the Investor
has
been subject to the alternative minimum tax under Section 55 of the Code in
the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (y) present values are computed
using a discount rate equal to the short-term Federal rate prescribed by Section
1274(d) of the Code for the month of the transfer and the compounding period
used by the Investor.
o
The
Transfer of the Certificates
complies with U.S. Treasury Regulation Sections 1.860E-1(c)(5) and (6) and,
accordingly:
|
(i)
|
the
Investor is an “eligible corporation,” as defined in U.S. Treasury
Regulation Section 1.860E-1(c)(6)(i), as to which income from the
Certificates will only be taxed in the United
States;
|
|
(ii)
|
at
the time of the Transfer, and at the close of the Investor’s two fiscal
years preceding the fiscal year of the transfer, the Investor had
gross
assets for financial reporting purposes (excluding any obligation
of a
“related person” to the Investor within the meaning of U.S. Treasury
Regulation Section 1.860E-1(c)(6)(ii) and any other asset the principal
purpose of which is to permit the Investor to satisfy the condition
of
this clause (ii)) in excess of $100 million and net assets in excess
of
$10 million;
|
|
(iii)
|
the
Investor will transfer the Certificates only to another “eligible
corporation,” as defined in U.S. Treasury Regulation Section
1.860E-1(c)(6)(i), in a transaction in which the requirements of
U.S. Treasury Regulation Sections 1.860E-1(c)(4)(i), (ii) and (iii)
and -1(c)(5) are satisfied and, accordingly, the subsequent transferee
provides a similar affidavit with this box checked;
and
|
|
(iv)
|
the
Investor determined the consideration paid to it to acquire the
Certificates based on reasonable market assumptions (including, but
not
limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and
other
factors specific to the Investor) that it has determined in good
faith and
has concluded that such consideration, together with other assets
of the
Investor, will be sufficient to cover the taxes associated with the
Certificates.
|
o None
of the
above.
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its [Title of
Officer] this ____ day of _________, 20__.
|
[NAME
OF INVESTOR]
|
||||||||||||
|
By:
|
||||||||||||
|
Name:
|
[Name
of Officer]
|
|||||||||||
|
Title:
|
[Title
of Officer]
|
|||||||||||
|
[Address
of Investor for receipt of distributions]
|
||||||||||||
|
Address
of Investor for receipt of tax
information:
|
||||||||||||
Personally
appeared before me the above-named [Name of Officer], known or proved to me
to
be the same person who executed the foregoing instrument and to be the [Title
of
Officer] of the Investor, and acknowledged to me that he/she executed the same
as his/her free act and deed and the free act and deed of the
Investor.
Subscribed
and sworn before me this ___ day of _________, 20___.
NOTARY
PUBLIC
COUNTY
OF
STATE
OF
My
commission expires the ___ day of ___________________, 20___.
EXHIBIT
D
FORM
OF TRANSFEROR CERTIFICATE
______________,
200___
Bear
Xxxxxxx Asset Backed Securities I LLC
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
LaSalle
Bank National Association,
as
Securities Administrator
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
| Attention: |
Global Securities and Trust Services -
Bear
Xxxxxxx Second Lien Trust 2007-1
|
|||
|
Re:
|
Bear
Xxxxxxx Second Lien Trust 2007-1 Trust Certificates,
Series
2007-1 (the “Certificates”)
|
|||
Ladies
and Gentlemen:
In
connection with the sale by ___________ (the “Seller”) to ________ (the
“Purchaser”) of $_________ Certificate Principal Balance of the Bear Xxxxxxx
Second Lien Trust 2007-1 Trust Certificates, Series 2007-1, Class _____ (the
“Certificates”), issued pursuant to a Trust Agreement, dated as of April 27,
2007 between the Bear Xxxxxxx Asset Backed Securities I LLC as depositor (the
“Depositor”), and Wilmington Trust Company, as owner trustee (the “Owner
Trustee”), as amended and restated by the Amended and Restated Trust Agreement,
dated as of April 30, 2007, among the Depositor, the Owner Trustee, and LaSalle
Bank National Association, as securities administrator (the “Securities
Administrator”). The Seller hereby certifies, represents and warrants to, and
covenants with, the Depositor and the Securities Administrator
that:
Neither
the Seller nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in any
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 Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any 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 Certificates under the Securities Act of 1933
(the “Act”), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act in
any
manner set forth in the foregoing sentence with respect to any Certificate.
The
Seller has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Trust
Agreement.
|
Very
truly yours,
|
|||||||||||||
|
(Seller)
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
EXHIBIT
E
FORM
OF INVESTMENT LETTER-NON RULE 144A
[Date]
[SELLER]
Bear
Xxxxxxx Asset Backed Securities I LLC
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
LaSalle
Bank National Association,
as
Securities Administrator
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
| Attention: |
Global Securities and Trust Services -
Bear
Xxxxxxx Second Lien Trust 2007-1
|
|||
|
Re:
|
Bear
Xxxxxxx Second Lien Trust 2007-1 Trust Certificates,
Series
2007-1 (the “Certificates”)
|
|||
Dear
Ladies and Gentlemen:
In
connection with our purchase of Certificates, we confirm that:
|
(i)
|
we
understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the “Act”) or any applicable state
securities or “Blue Sky” laws, and are being sold to us in a transaction
that is exempt from the registration requirements of such
laws;
|
|
(ii)
|
any
information we desired concerning the Certificates, including the
Certificates, the trust, in which the Certificates represent the
entire
beneficial ownership interest (the “Trust”) or any other matter we deemed
relevant to our decision to purchase Certificates has been made available
to us;
|
|
(iii)
|
we
are able to bear the economic risk of investment in Certificates;
we are
an institutional “accredited investor” as defined in Section 501(a) of
Regulation D promulgated under the Act and a sophisticated institutional
investor;
|
|
(iv)
|
we
are acquiring Certificates for our own account, not as nominee for
any
other person, and not with a present view to any distribution or
other
disposition of the Certificates;
|
|
(v)
|
we
agree the Certificates must be held indefinitely by us (and may not
be
sold, pledged, hypothecated or in any way disposed of) unless subsequently
registered under the Act and any applicable state securities or “Blue Sky”
laws or an exemption from the registration requirements of the Act
and any
applicable state securities or “Blue Sky” laws is
available;
|
|
(vi)
|
we
agree that in the event that at some future time we wish to dispose
of or
exchange any of the Certificates (such disposition or exchange not
being
currently foreseen or contemplated), we will not transfer or exchange
any
of the Certificates unless:
|
(A)
(1)
the sale is to an Eligible Purchaser (as defined below), (2) if required by
the
Trust Agreement (as defined below) a letter to substantially the same effect
as
either this letter or, if the Eligible Purchaser is a Qualified Institutional
Buyer as defined under Rule 144A of the Act, the Rule 144A and Related Matters
Certificate in the form attached to the Trust Agreement (as defined below)
(or
such other documentation as may be acceptable to the Securities Administrator)
is executed promptly by the purchaser and delivered to the addressees hereof
and
(3) all offers or solicitations in connection with the sale, whether directly
or
through any agent acting on our behalf, are limited only to Eligible Purchasers
and are not made by means of any form of general solicitation or general
advertising whatsoever; and
(B)
if
the Certificate is not registered under the Act (as to which we acknowledge
you
have no obligation), the Certificate is sold in a transaction that does not
require registration under the Act and any applicable state securities or “blue
sky” laws and, if LaSalle Bank National Association (the “Securities
Administrator”) so requests, a satisfactory Opinion of Counsel is furnished to
such effect, which Opinion of Counsel shall be an expense of the transferor
or
the transferee;
|
(vii)
|
we
agree to be bound by all of the terms (including those relating to
restrictions on transfer) of the Trust Agreement, pursuant to which
the
Trust was formed; we have reviewed carefully and understand the terms
of
the Trust Agreement;
|
|
(viii)
|
we
are not acquiring the Certificate directly or indirectly by, or on
behalf
of, an employee benefit plan or other retirement arrangement which
is
subject to Title I of the Employee Retirement Income Security Act
of 1974,
as amended (“ERISA”), and/or Section 4975 of the Internal Revenue Code of
1986 (each, a “Plan”) or with “plan assets” of a Plan pursuant to 29
C.F.R. 2510.3-101, as modified by Section 3(42) of
ERISA.
|
|
(ix)
|
We
understand that each of the Certificates bears, and will continue
to bear,
a legend to substantiate the following effect: THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE,
AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A
“QIB”),
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT
OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE
SECURITIES ACT (IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN
“INSTITUTIONAL ACCREDITED INVESTOR” WITHIN THE MEANING THEREOF IN RULE
501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY
IN
WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING
NOT
FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT TO (A)
THE
RECEIPT BY THE SECURITIES ADMINISTRATOR AND THE OWNER TRUSTEE OF
A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT
BY
SECURITIES ADMINISTRATOR AND THE OWNER TRUSTEE OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE SECURITIES ADMINISTRATOR THAT SUCH REOFFER, RESALE,
PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER APPLICABLE
JURISDICTION. NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY
PERSON,
UNLESS THE TRANSFEREE PROVIDES A CERTIFICATION PURSUANT TO SECTION
3.04
AND SECTION 3.07 OF THE
AGREEMENT.
|
“Eligible
Purchaser”
means
a
corporation, partnership or other entity which we have reasonable grounds to
believe and do believe (i) can make representations with respect to itself
to
substantially the same effect as the representations set forth herein, and
(ii)
is either a Qualified Institutional Buyer as defined under Rule 144A of the
Act
or an institutional “Accredited Investor” as defined under Rule 501 of the
Act.
Terms
not
otherwise defined herein shall have the meanings assigned to them in the Trust
Agreement, dated as of April 27, 2007 between the Bear Xxxxxxx Asset Backed
Securities I LLC as depositor (the “Depositor”), and Wilmington Trust Company,
as owner trustee (the “Owner Trustee”), as amended and restated by the Amended
and Restated Trust Agreement, dated as of April 30, 2007, among the Depositor,
the Owner Trustee, and LaSalle Bank National Association, as securities
administrator (the “Securities Administrator”).
If
the
Purchaser proposes that its Certificates be registered in the name of a nominee
on its behalf, the Purchaser has identified such nominee below, and has caused
such nominee to complete the Nominee Acknowledgment at the end of this
letter.
Name
of
Nominee (if any): ________________
IN
WITNESS WHEREOF, this document has been executed by the undersigned who is
duly
authorized to do so on behalf of the undersigned Eligible Purchaser on the
___
day of ________, 20___.
|
Very
truly yours,
|
|||||||||||||
|
[PURCHASER]
|
|||||||||||||
|
By:
|
|||||||||||||
|
(Authorized
Officer)
|
|||||||||||||
|
By:
|
|||||||||||||
|
(Attorney-in-fact)
|
|||||||||||||
Nominee
Acknowledgment
The
undersigned hereby acknowledges and agrees that as to the Certificates being
registered in its name, the sole beneficial owner thereof is and shall be the
Purchaser identified above, for whom the undersigned is acting as
nominee.
|
[NAME
OF NOMINEE]
|
|||||||||||||
|
By:
|
|||||||||||||
|
(Authorized
Officer)
|
|||||||||||||
|
By:
|
|||||||||||||
|
(Attorney-in-fact)
|
|||||||||||||
Nominee
Acknowledgment
The
undersigned hereby acknowledges and agrees that as to the Certificates being
registered in its name, the sole beneficial owner thereof is and shall be the
Purchaser identified above, for whom the undersigned is acting as
nominee.
|
[NAME
OF NOMINEE]
|
|||||||||||||
|
By:
|
|||||||||||||
|
(Authorized
Officer)
|
|||||||||||||
|
By:
|
|||||||||||||
|
(Attorney-in-fact)
|
|||||||||||||
EXHIBIT
F
FORM
OF RULE 144A AND RELATED MATTERS CERTIFICATE
[SELLER]
Bear
Xxxxxxx Asset Backed Securities I LLC
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
LaSalle
Bank National Association,
as
Securities Administrator
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
| Attention: |
Global Securities and Trust Services -
Bear
Xxxxxxx Second Lien Trust 2007-1
|
|||
|
Re:
|
Bear
Xxxxxxx Second Lien Trust 2007-1 Trust Certificates,
Series
2007-1 (the “Certificates”)
|
|||
Dear
Ladies and Gentlemen:
In
connection with our purchase of Certificates, the undersigned certifies to
each
of the parties to whom this letter is addressed that it is a qualified
institutional buyer (as defined in Rule 144A under the Securities Act of 1933,
as amended (the “Act”)) as follows:
1. It
owned
and/or invested on a discretionary basis eligible securities (excluding
affiliate’s securities, bank deposit notes and CD’s, loan participations,
repurchase agreements, securities owned but subject to a repurchase agreement
and swaps), as described below:
Date:
______________, 20__ (must be on or after the close of its most recent fiscal
year)
Amount:
$
_____________________; and
2. The
dollar
amount set forth above is:
|
a.
|
greater
than $100 million and the undersigned is one of the following
entities:
|
|
(x)
|
[_]
|
an
insurance company as defined in Section 2(13) of the Act1 ;
or
|
|
(y)
|
[_]
|
an
investment company registered under the Investment Company Act or
any
business development company as defined in Section 2(a)(48) of the
Investment Company Act of 1940; or
|
|
(z)
|
[_]
|
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; or
|
|
(aa)
|
[_]
|
a
plan (i) established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its
political
subdivisions, the laws of which permit the purchase of securities
of this
type, for the benefit of its employees and (ii) the governing investment
guidelines of which permit the purchase of securities of this type;
or
|
|
(bb)
|
[_]
|
a
business development company as defined in Section 202(a)(22) of
the
Investment Advisers Act of 1940; or
|
|
(cc)
|
[_]
|
a
corporation (other than a U.S. bank, savings and loan association
or
equivalent foreign institution), partnership, Massachusetts or similar
business trust, or an organization described in Section 501(c)(3)
of the
Internal Revenue Code; or
|
|
(dd)
|
[_]
|
a
U.S. bank, savings and loan association or equivalent foreign institution,
which has an audited net worth of at least $25 million as demonstrated
in
its latest annual financial statements;
or
|
|
(ee)
|
[_]
|
an
investment adviser registered under the Investment Advisers Act;
or
|
|
b.
|
[_]
|
greater
than $10 million, and the undersigned is a broker-dealer registered
with
the SEC; or
|
|
c.
|
[_]
|
less
than $10 million, and the undersigned is a broker-dealer registered
with
the SEC and will only purchase Rule 144A securities in transactions
in
which it acts as a riskless principal (as defined in Rule 144A);
or
|
|
d.
|
[_]
|
less
than $100 million, and the undersigned is an investment company registered
under the Investment Company Act of 1940, which, together with one
or more
registered investment companies having the same or an affiliated
investment adviser, owns at least $100 million of eligible securities;
or
|
|
e.
|
[_]
|
less
than $100 million, and the undersigned is an entity, all the equity
owners
of which are qualified institutional
buyers.
|
The
undersigned further certifies that it is purchasing a Certificate for its own
account or for the account of others that independently qualify as “Qualified
Institutional Buyers” as defined in Rule 144A. It is aware that the sale of the
Certificates is being made in reliance on its continued compliance with Rule
144A. It is aware that the transferor may rely on the exemption from the
provisions of Section 5 of the Act provided by Rule 144A. The undersigned
understands that the Certificates may be resold, pledged or transferred only
to
(i) 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 in Rule 144A, or (ii) an institutional “accredited investor,” as
such term is defined under Rule 501 of the Act in a transaction that otherwise
does not constitute a public offering.
The
undersigned agrees that if at some future time it wishes to dispose of or
exchange any of the Certificates, it will not transfer or exchange any of the
Certificates to a Qualified Institutional Buyer without first obtaining a Rule
144A and Related Matters Certificate in the form hereof from the transferee
and
delivering such certificate to the addressees hereof. Prior to making any
transfer of Certificates, if the proposed Transferee is an institutional
“accredited investor,” the transferor shall obtain from the transferee and
deliver to the addressees hereof an Investment Letter in the form attached
to
the Trust Agreement, dated as of April 27, 2007 between the Bear Xxxxxxx Asset
Backed Securities I LLC as depositor (the “Depositor”), and Wilmington Trust
Company, as owner trustee (the “Owner Trustee”), as amended and restated by the
Amended and Restated Trust Agreement, dated as of April 30, 2007, among the
Depositor, the Owner Trustee, and LaSalle Bank National Association, as
securities administrator (the “Securities Administrator”), and in its capacity
as Securities Administrator, as certificate registrar and certificate paying
agent (the “Certificate Registrar”), pursuant to which the Certificates were
issued.
The
undersigned certifies that it is not acquiring the Certificate directly or
indirectly by, or on behalf of, an employee benefit plan or other retirement
arrangement which is subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended, and/or Section 4975 of the Internal Revenue
Code of 1986 (each, a “Plan”), or with “plan assets” of a Plan pursuant to 29
C.F.R. 2510.3-101, as modified by Section 3(42) of ERISA.
If
the
Purchaser proposes that its Certificates be registered in the name of a nominee
on its behalf, the Purchaser has identified such nominee below, and has caused
such nominee to complete the Nominee Acknowledgment at the end of this
letter.
Name
of
Nominee (if any):___________________
1 A
purchase by an insurance company for one or more of its separate accounts,
as
defined by Section 2(a)(37) of the Investment Company Act of 1940, which
are
neither registered nor required to be registered thereunder, shall be deemed
to
be a purchase for the account of such insurance company.
IN
WITNESS WHEREOF, this document has been executed by the undersigned who is
duly
authorized to do so on behalf of the undersigned Eligible Purchaser on the
____
day of ___________, 20___.
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Very
truly yours,
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[PURCHASER]
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By:
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(Authorized
Officer)
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By:
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(Attorney-in-fact)
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Nominee
Acknowledgment
The
undersigned hereby acknowledges and agrees that as to the Certificates being
registered in its name, the sole beneficial owner thereof is and shall be the
Purchaser identified above, for whom the undersigned is acting as
nominee.
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[NAME
OF NOMINEE]
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By:
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(Authorized
Officer)
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By:
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(Attorney-in-fact)
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EXHIBIT
G
FORM
OF TRANSFEROR AFFIDAVIT
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STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
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COUNTY
OF NEW YORK
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)
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The
undersigned is the [Title of Officer] of [Name of Transferor] (the “Owner”), the
proposed transferor of an ownership interest in the Bear Xxxxxxx Second Lien
Trust 2007-1, Mortgage-Backed Notes, Series 2007-1, Class [S][R] Certificates
(the “Certificates”) issued pursuant to the Amended and Restated Trust Agreement
(the “Agreement”) relating to the Certificates, dated as of April 30, 2007,
among Bear Xxxxxxx Asset Backed Securities I LLC, as depositor (the
“Depositor”), Wilmington Trust Company, as owner trustee (“the Trustee”) and
LaSalle Bank National Association, as securities administrator (the “Securities
Administrator”), and makes this affidavit on behalf of the Investor for the
benefit of the Depositor, the Securities Administrator, the Note Insurer, the
Certificate Registrar and the Trustee. Capitalized terms used, but not defined
herein, shall have the meanings ascribed to such terms in the
Agreement.
1.
The
Owner
is not transferring the Certificates to impede the assessment or collection
of
any tax.
2.
The
Owner
has no actual knowledge that the proposed transferee of the Certificates: (i)
has insufficient assets to pay any taxes that would be owed by such transferee
as Holder of the Certificates; (ii) may become insolvent or subject to a
bankruptcy proceeding for so long as the Certificates remains outstanding;
and
(iii) is not a Permitted Transferee.
3.
The
Owner
understands that the proposed transferee has delivered to the Trustee, the
Securities Administrator, the Note Insurer, the Certificate Registrar and the
Depositor a transfer affidavit and agreement in the form attached to the
Agreement as Exhibit C. The Owner does not know or believe that any
representation contained therein is false.
4.
At
the
time of transfer, the Owner has conducted a reasonable investigation of the
financial condition of the proposed transferee as contemplated by Treasury
Regulation Section 1.860E-1(c)(4)(i) and, as a result of that investigation,
the
Owner has determined that the proposed transferee has historically paid its
debts as they became due and has found no significant evidence to indicate
that
the proposed transferee will not continue to pay its debts as they become due
in
the future. The Owner understands that the transfer of the Certificates may
not
be respected for U.S. federal income tax purposes (and the Owner may continue
to
be liable for U.S. federal income taxes associated therewith) unless the Owner
has conducted such an investigation.
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its [Title of
Officer] this ____ day of _________, 20__.
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[NAME
OF OWNER]
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||||||||||||
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By:
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||||||||||||
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Name:
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[Name
of Officer]
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Title:
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[Title
of Officer]
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Personally
appeared before me the above-named [Name of Officer], known or proved to me
to
be the same person who executed the foregoing instrument and to be the [Title
of
Officer] of the Owner, and acknowledged to me that he/she executed the same
as
his/her free act and deed and the free act and deed of the Owner.
Subscribed
and sworn before me this ___ day of _________, 20___.
NOTARY
PUBLIC
COUNTY
OF
STATE
OF
My
commission expires the ___ day of ___________________, 20___.
