EXHIBIT 10.1
_____________________________________________________________________________________________________________________
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.,
Depositor
and
XXXXX FARGO BANK, N.A.,
Trustee
____________________________________
POOLING AGREEMENT
Dated as of January 16, 2008
____________________________________
$84,888,647
Bear Xxxxxxx Structured Products Inc. Trust,
Series 2008-R1
backed by
Bear Xxxxxxx ARM Trust, Mortgage Pass-Through Certificates, Series 2007-3
_____________________________________________________________________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..................................................................................1
Section 1.01 Defined Terms.............................................................................1
ARTICLE II CONVEYANCE OF THE UNDERLYING CERTIFICATES; ORIGINAL ISSUANCE OF CERTIFICATES................11
Section 2.01 Conveyance of the Underlying Certificates................................................11
Section 2.02 Acceptance of Trust Fund by the Trustee; Initial Issuance of Certificates................12
Section 2.03 Representations and Warranties of the Depositor and the Trustee..........................12
Section 2.04 Purposes and Powers of the Trust.........................................................15
ARTICLE III ADMINISTRATION OF THE UNDERLYING CERTIFICATES; PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS...16
Section 3.01 Administration of the Trust Fund and the Underlying Certificates.........................16
Section 3.02 Collection of Monies.....................................................................16
Section 3.03 Establishment of Certificate Account; Deposits Therein...................................16
Section 3.04 Permitted Withdrawals From the Certificate Account.......................................17
Section 3.05 Distributions............................................................................17
Section 3.06 Statements to Certificateholders.........................................................18
Section 3.07 Access to Certain Documentation and Information..........................................19
Section 3.08 Calculation of Distribution Amounts......................................................19
Section 3.09 Annual Statement as to Compliance........................................................19
Section 3.10 Assessments of Compliance and Attestation Reports........................................20
Section 3.11 Reports Filed with Securities and Exchange Commission....................................22
Section 3.12 UCC......................................................................................29
ARTICLE IV THE CERTIFICATES............................................................................30
Section 4.01 The Certificates.........................................................................30
Section 4.02 Registration of Transfer and Exchange of Certificates....................................31
Section 4.03 Mutilated, Destroyed, Lost or Stolen Certificates........................................32
Section 4.04 Persons Deemed Owners....................................................................33
ARTICLE V THE TRUSTEE.................................................................................33
Section 5.01 Duties of the Trustee....................................................................33
Section 5.02 Certain Matters Affecting the Trustee....................................................34
Section 5.03 Trustee Not Liable for Certificates or Underlying Certificates...........................35
Section 5.04 Trustee May Own Certificates.............................................................36
Section 5.05 Trustee's Fees and Expenses..............................................................36
Section 5.06 Eligibility Requirements for Trustee.....................................................36
Section 5.07 Resignation and Removal of the Trustee...................................................37
Section 5.08 Successor Trustee........................................................................37
Section 5.09 Merger or Consolidation of Trustee.......................................................38
Section 5.10 Appointment of Co-Trustee or Separate Trustee............................................38
ARTICLE VI THE DEPOSITOR...............................................................................40
Section 6.01 Liability of the Depositor...............................................................40
Section 6.02 Merger, Consolidation or Conversion of the Depositor.....................................40
Section 6.03 Limitation on Liability of the Depositor and Others......................................40
ARTICLE VII TERMINATION.................................................................................41
Section 7.01 Termination..............................................................................40
ARTICLE VIII TAX ADMINISTRATION..........................................................................41
Section 8.01 Grantor Trust Administration.............................................................41
ARTICLE IX MISCELLANEOUS PROVISIONS....................................................................44
Section 9.01 Amendment................................................................................44
Section 9.02 Counterparts.............................................................................45
Section 9.03 Limitation on Rights of Certificateholders...............................................45
Section 9.04 Governing Law............................................................................46
Section 9.05 Notices..................................................................................46
Section 9.06 Severability of Provisions...............................................................46
Section 9.07 Successors and Assigns...................................................................47
Section 9.08 Article and Section Headings.............................................................47
Section 9.09 Notices to Rating Agencies...............................................................47
Section 9.10 Acts of Certificateholders...............................................................47
Exhibit A - Form of Class A Certificates
Exhibit B - Form of Annual Certification
Exhibit C - Servicing Criteria to Be Addressed in Assessment of Compliance
Exhibit D - Form 10-D, Form 8-K and Form 10-K Reporting Responsibility
Exhibit E - Additional Disclosure Notification
Exhibit F - Form of Transferor Certificate
Schedule A - Underlying Certificates
POOLING AGREEMENT, dated as of January 16, 2008, by and between STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC., as depositor (the "Depositor") and XXXXX FARGO BANK, N.A., as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Trustee on behalf of the Trust will execute and deliver the Bear Xxxxxxx Structured
Products Inc. Trust, Series 2008-R1, Class A-1 Certificates and Class A-2 Certificates representing in the
aggregate the entire beneficial ownership in the Trust (as defined herein), the primary assets of which are the
Underlying Certificates (as defined herein). The Depositor intends to sell some or all of the Certificates.
As provided herein, the Depositor intends to treat the Trust as a grantor trust for federal
income tax purposes.
All things necessary to make this Agreement a valid declaration of trust by the Depositor in
accordance with its terms have been done.
In consideration of the premises and the mutual agreements herein contained, and for other
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Depositor and the
Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.
Whenever used in this Agreement, including the Preliminary Statement, the following words and
phrases, unless the context otherwise requires, shall have the following meanings:
Account: The Certificate Account.
Affiliate: With respect to any specified Person, any other Person that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under common control with, such specified
Person. For the purposes of this definition, "control" when used with respect to any specified Person means
possession, direct or indirect, of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract or otherwise, and the terms
"controlling," "controlled by" and "under common control with" have meanings correlative to the foregoing.
Agreement: This Pooling Agreement and all amendments hereof and supplements hereto.
Available Funds: As of any date of determination, the aggregate amount received with respect
to the Underlying Certificates that is on deposit in the Certificate Account as of such date, net of any portion
thereof which represents amounts to be paid to any Person pursuant to clause (ii) of Section 3.04.
Bear, Xxxxxxx: Bear, Xxxxxxx & Co. Inc.
Business Day: Any day other than a Saturday, a Sunday or a day on which the Federal Reserve
Bank of New York is closed or on which banking institutions in New York or in any city in which the Corporate
Trust Office of the Trustee is located are authorized or obligated by law or executive order to close.
Certificate: Any Class A-1 Certificate or Class A-2 Certificate as executed hereunder by the
Trustee and authenticated and delivered hereunder by the Certificate Registrar, substantially in the form of
Exhibit A hereto.
Certificate Account: The trust account or accounts, which shall at all times be Eligible
Accounts, created and maintained by the Trustee for the benefit of the Certificateholders pursuant to Section
3.03. Funds deposited in the Certificate Account shall be held in trust for the Certificateholders for the uses
and purposes set forth in Article III hereof.
Certificate Owner: Any Person who is the beneficial owner of a Certificate registered in the
name of the Depository or its nominee. Any reference herein to a "beneficial interest" in a security also shall
mean, unless the context otherwise requires, a security entitlement with respect to such security, and any
reference herein to a "beneficial owner" or "beneficial holder" of a security also shall mean, unless the context
otherwise requires, the holder of a security entitlement with respect to such security.
Certificate Registrar and Certificate Register: Shall each have the meanings provided in
Section 4.02.
Certificateholder or Holder: The Person in whose name a Certificate is registered in the
Certificate Register, except that, solely for the purpose of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the Depositor or any Affiliate thereof shall be deemed
not to be outstanding and shall not be taken into account for purposes of determining whether the Holders of
Certificates evidencing the requisite aggregate Percentage Interest necessary to effect any such consent,
approval or waiver has been obtained, unless such Persons collectively own all the Certificates.
Class: Collectively, all of the Certificates bearing the same designation.
Class A Certificates: Any of the Class A-1 Certificates and Class A-2 Certificates.
Class A-1 Certificate: Any Class A-1 Certificate as executed hereunder by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar, substantially in the form of Exhibit A hereto.
Class A-1 Interest Carryover Shortfall Amount: With respect to any Distribution Date, an
amount equal to the sum of (a) any outstanding unpaid Class A-1 Interest Distribution Amount owed to the Class
A-1 Certificateholders from the preceding Distribution Date and (b) interest on such outstanding unpaid interest
amount at the Pass-Through Rate from such preceding Distribution Date to but not including such current
Distribution Date.
Class A-1 Interest Distribution Amount: With respect to any Distribution Date, an amount equal
to the sum of (i) the Class A-1 Monthly Interest Amount for such Distribution Date and (ii) the Class A-1
Interest Carryover Shortfall Amount for such Distribution Date.
Class A-1 Monthly Interest Amount: With respect to any Distribution Date, an amount equal to
the interest accrued on the Class A-1 Certificates at the Pass-Through Rate for the applicable Interest Accrual
Period.
Class A-1 Monthly Principal Amount: With respect to any Distribution Date, an amount equal to
the sum of (a) the Class A-1 Percentage of Underlying Principal for such Distribution Date and (b) the Class A-1
Percentage of Realized Losses allocated to the Underlying Certificates for such Distribution Date.
Class A-1 Percentage: With respect to each Distribution Date is 92.895956%.
Class A-1 Principal Xxxxxxxxx Shortfall Amount: With respect to any Distribution Date, any
outstanding unpaid Class A-1 Principal Distribution Amount from the immediately preceding Distribution Date.
Class A-1 Principal Distribution Amount: With respect to any Distribution Date, an amount
equal to the sum of (i) the Class A-1 Monthly Principal Amount for such Distribution Date and (ii) the Class A-1
Principal Carryover Shortfall Amount for such Distribution Date.
Class A-2 Certificate: Any Class A-2 Certificate as executed hereunder by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar, substantially in the form of Exhibit A hereto.
Class A-2 Interest Carryover Shortfall Amount: With respect to any Distribution Date, an
amount equal to the sum of (a) any outstanding unpaid Class A-2 Interest Distribution Amount owed to the Class
A-2 Certificateholders from the preceding Distribution Date and (b) interest on such outstanding unpaid interest
amount at the Pass-Through Rate from such preceding Distribution Date to but not including such current
Distribution Date.
Class A-2 Interest Distribution Amount: With respect to any Distribution Date, an amount equal
to the sum of (i) the Class A-2 Monthly Interest Amount for such Distribution Date and (ii) the Class A-2
Interest Carryover Shortfall Amount for such Distribution Date.
Class A-2 Monthly Interest Amount: With respect to any Distribution Date, an amount equal to
the interest accrued on the Class A-2 Certificates at the Pass-Through Rate for the applicable Interest Accrual
Period.
Class A-2 Monthly Principal Amount: With respect to any Distribution Date, an amount equal to
the sum of (a) the Class A-2 Percentage of Underlying Principal for such Distribution Date and (b) the Class A-2
Percentage of Realized Losses allocated to the Underlying Certificates for such Distribution Date.
Class A-2 Percentage: With respect to each Distribution Date is 7.104044%.
Class A-2 Principal Xxxxxxxxx Shortfall Amount: With respect to any Distribution Date, an
amount equal to any outstanding unpaid Class A-2 Principal Distribution Amount from the immediately preceding
Distribution Date.
Class A-2 Principal Distribution Amount: With respect to any Distribution Date, an amount
equal to the sum of (i) the Class A-2 Monthly Principal Amount for such Distribution Date and (ii) the Class A-2
Principal Carryover Shortfall Amount for such Distribution Date.
Closing Date: January 16, 2008.
Code: The Internal Revenue Code of 1986, as amended.
Commission: U.S. Securities and Exchange Commission.
Corporate Trust Office: The corporate trust office of the Trustee at which at any particular
time its corporate trust business with respect to this Agreement shall be administered, which office at the date
of the execution of this Agreement is located at P.O. Box 92, Columbia, Maryland 21046 (or, for overnight
deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000), Attention: Client Manager, BSSP 2008-R1. The
Trustee's corporate trust office for purposes of presentment and surrender of the Certificates for the final
distribution thereon and for transfers is located at Sixth Avenue and Marquette Avenue, Minneapolis, Minnesota
55479, Attention: Client Manager, BSSP 2008-R1 or any other address that the Trustee may designate from time to
time by notice to the Depositor and the Certificateholders.
Current Principal Amount: With respect to any Certificate, as of any Distribution Date, the
Initial Current Principal Amount of such Certificate as reduced by the sum of all amounts allocable to principal
previously distributed on any Distribution Date to such Certificate.
Cut-off Date: December 1, 2007.
Definitive Certificates: The meaning set forth in Section 4.01(b) hereof.
Depositor: The meaning set forth in the first sentence hereof.
Depository: DTC, the nominee of which is Cede & Co., or any successor thereto.
Depository Agreement: The meaning set forth in Subsection 4.01(a) hereof.
Depository Participant: A broker, dealer, bank or other financial institution or other Person
for whom from time to time the Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
Distribution Date: Each Underlying Certificate Distribution Date, commencing in January 2008,
except for the first Distribution Date, which will be January 28, 2008. If, at any time, the trustee for the
Underlying Certificates is no longer Xxxxx Fargo Bank, N.A., and the Trustee for the Certificates determines that
it is impractical for distributions on the Certificates to be made on the Underlying Certificate Distribution
Date, the Distribution Date will be changed at the Trustee's discretion to one Business Day after the Underlying
Distribution Date.
DTC: The Depository Trust Company.
Eligible Account: Any of (i) an account or accounts maintained with a federal or state
chartered depository institution or trust company, the long-term unsecured debt obligations and short-term
unsecured debt obligations of which (or, in the case of a depository institution or trust company that is the
principal subsidiary of a holding company, the debt obligations of such holding company, so long as Xxxxx'x is
not a Rating Agency) are rated by each Rating Agency in one of its two highest long-term and its highest
short-term rating categories, respectively, at the time any amounts are held on deposit therein; provided, that
following a downgrade, withdrawal, or suspension of such institution's rating above, each account shall promptly
(and in any case within not more than 30 calendar days) be moved to one or more segregated trust accounts in the
trust department of such institution or to an account at another institution that complies with the above
requirements, or (ii) a trust account or accounts maintained with the corporate trust department of a federal or
state chartered depository institution or trust company having capital and surplus of not less than $50,000,000,
acting in its fiduciary capacity or (iii) any other account acceptable to the Rating Agencies (as evidenced in
writing by the Rating Agencies that use of any such account as the Certificate Account will not have an adverse
effect on the then-current ratings assigned to the Classes of Certificates then rated by the Rating Agencies).
Eligible Accounts may bear interest.
ERISA: The Employee Retirement Income Security Act of 1974, as amended, and the rules and
regulations promulgated thereunder.
Exchange Act: The Securities Exchange Act of 1934, as amended.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
Final Distribution Date: With respect to the Underlying Certificates, the Underlying
Certificate Distribution Date on which the final distribution thereon is to be made in accordance with the
Underlying Agreement. With respect to the Class A Certificates, the Distribution Date occurring in May 2047.
Fitch: Fitch Ratings.
Initial Current Principal Amount: With respect to the Class A-1 Certificates, $78,858,120; and
with respect to the Class A-2 Certificates, $6,030,527.
Interest Accrual Period: For each Distribution Date, the one-month period ending on the last
day of the month preceding the month in which such Distribution Date occurs. The initial Interest Accrual Period
will be deemed to have commenced on the Cut-off Date. Interest will be calculated on the basis of a 360-day year
comprised of twelve 30-day months.
Interest Distribution Amount: With respect to each Class of Certificates and any Distribution
Date, the amount of interest accrued during the related Interest Accrual Period at the Pass-Through Rate on the
Current Principal Amount of such Class of Certificates immediately prior to such Distribution Date.
Investment Company Act: The Investment Company Act of 1940, as amended from time to time, and
the rules and regulations promulgated thereunder.
Majority Certificateholders: The Holders of Certificates evidencing in the aggregate greater
than 50% of the aggregate Current Principal Amount of all the Certificates.
Monthly Statement: The statement delivered to the Certificateholders pursuant to Section 3.11.
Moody's: Xxxxx'x Investors Service, Inc.
Notice of Final Distribution: With respect to the Underlying Certificates, any notice provided
pursuant to the Underlying Agreement to the effect that final distribution on any Underlying Certificate shall be
made only upon presentment and surrender thereof. With respect to the Certificates, the notice to be provided
pursuant to Section 7.01(b) to the effect that final distribution on the Certificates shall be made only upon
presentment and surrender thereof.
Officers' Certificate: A certificate signed by the Chairman of the Board, the President, a
Senior Vice President, a Vice President or an Assistant Vice President and by the Treasurer, the Secretary, an
Assistant Treasurer or an Assistant Secretary of the Depositor or the Trustee, as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel for the Depositor, which
opinion is addressed to the Trustee and is reasonably acceptable to the Trustee.
Pass-Through Rate: With respect to any Distribution Date, the Pass-Through Rate on each Class
of Certificates are as follows: the Class A-1 Certificates and Class A-2 Certificates will bear interest at a
variable pass-through rate equal to the pass-through rate on the Underlying Certificates.
Percentage Interest: With respect to any Class of Certificates, the portion of the
Certificates represented by such Certificate, expressed as a percentage, the numerator of which is the initial
outstanding Current Principal Amount of such class of Certificates as of the Closing Date, as specified on the
face thereof, and the denominator of which is the original Current Principal Amount of all Certificates in such
class.
Permitted Investments: Any one or more of the following:
(i) direct obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality thereof, provided such obligations
are backed by the full faith and credit of the United States;
(ii) (A) demand and time deposits in, certificates of deposit of, bankers' acceptances
issued by or federal funds sold by any depository institution or trust company (including the Trustee or its
agents acting in their respective commercial capacities) incorporated under the laws of the United States of
America or any state thereof and subject to supervision and examination by federal and/or state authorities, so
long as, at the time of such investment or contractual commitment providing for such investment, such depository
institution or trust company or its ultimate parent has a short-term uninsured debt rating in one of the two
highest available rating categories of each S&P and Fitch and the highest available rating category of Moody's,
and (B) any other demand or time deposit which is fully insured by the FDIC;
(iii) repurchase obligations with respect to any security described in clause (i) above and
entered into with a depository institution or trust company (acting as principal), provided that the commercial
paper and/or long term unsecured debt obligations of such depository institution or trust company are then rated
one of the two highest long-term and the highest short-term ratings of each Rating Agency for such securities;
(iv) securities bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America, the District of Columbia or any State thereof and
that are rated by each Rating Agency in its highest long term unsecured rating categories at the time of such
investment or contractual commitment providing for such investment;
(v) commercial paper (including both non interest bearing discount obligations and
interest bearing obligations) that is rated by each Rating Agency in its highest short term unsecured debt rating
available at the time of such investment;
(vi) units of money market funds (which may be 12b-1 funds, as contemplated by the
Commission under the Investment Company Act) registered under the Investment Company Act including funds managed
or advised by the Trustee or an affiliate thereof having the highest applicable rating from each Rating Agency
rating such funds; and
(vii) if previously confirmed in writing to the Trustee, any other demand, money market or
time deposit, or any other obligation, security or investment, as may be acceptable to the Rating Agencies in
writing as a permitted investment of funds backing securities having ratings equivalent to its highest initial
rating of the Certificates;
provided, however, that no instrument described hereunder shall (i) evidence either the right to receive (a) only
interest with respect to the obligations underlying such instrument or (b) both principal and interest payments
derived from obligations underlying such instrument and the interest and principal payments with respect to such
instrument provide a yield to maturity at par greater than 120% of the yield to maturity at par of the underlying
obligations, or (ii) be issued by or be an obligation of Bear, Xxxxxxx.
Person: Any individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization or government or any agency or political
subdivision thereof.
Rating Agency: S&P, Fitch or their respective successors. If such agency or its successors
are no longer in existence, "Rating Agency" shall be deemed to refer to such nationally recognized statistical
rating agency, or other comparable Person, designated by the Depositor, notice of which designation shall be
given to the Trustee, and specific ratings of the Rating Agency shall be deemed to refer to the equivalent
ratings of the Person so designated.
Realized Losses: As defined in the Underlying Agreement.
Record Date: For the Certificates and the first Distribution Date, the Closing Date, and for
any Distribution Date thereafter, the last Business Day of the month preceding the month in which such
Distribution Date occurs.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as amended from time to time, and subject to such clarification and interpretation as have
been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Repurchase Price: In connection with the repurchase of any of the Underlying Certificates
pursuant to Section 2.03(c), a price equal to the outstanding principal balance thereof as of the date of
repurchase plus accrued and unpaid interest thereon.
Responsible Officer: When used with respect to the Trustee, any officer of the Trustee
assigned to and working in its Corporate Trust Office or similar group with direct responsibility for
administering the trusts hereunder and also, with respect to a particular matter, any other officer of the
Trustee to whom a particular matter is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc., and its successors in
interest.
Sale Agreement: The Sale Agreement, dated as of January 16, 2008, between Bear, Xxxxxxx and
the Depositor relating to the Underlying Certificates.
Securities Act: The Securities Act of 1933, as amended.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of Regulation AB, as
such may be amended from time to time, or those Servicing Criteria otherwise mutually agreed to by the Sponsor,
the Trustee and the Depositor in response to evolving interpretations of Regulation AB and incorporated into a
revised Exhibit C.
Sponsor: EMC Mortgage Corporation, or its successor in interest.
Transaction Documents: This Agreement, the Sale Agreement and the Underwriting Agreement.
Trust: The Bear Xxxxxxx Structured Products Inc. Trust 2008-R1, created pursuant to this
Agreement.
Trustee: The meaning set forth in the first sentence hereof.
Trust Fund: The segregated pool of assets consisting of:
(i) the Underlying Certificates;
(ii) all amounts payable on the Underlying Certificates following the Closing Date pursuant
to the Underlying Agreement;
(iii) the Certificate Account and such funds or assets as are from time to time deposited in
or credited to the Certificate Account;
(iv) the Depositor's rights under the Sale Agreement; and
(v) the income, payments and proceeds of each of the foregoing.
Underlying Agreement: The Pooling and Servicing Agreement dated as of April 1, 2007, among the
Depositor, Xxxxx Fargo Bank, N.A., as trustee, and EMC Mortgage Corporation, as sponsor and as master servicer,
as such agreement may be amended, modified or amended and restated from time to time.
Underlying Certificate Class Percentage: The percentage which the Underlying Certificate
constitutes of its entire class as set forth in Schedule A attached hereto under the caption "Class % in Trust."
Underlying Certificate Distribution Date: The 25th day of each month, or if such day is not a
Business Day, then the next Business Day.
Underlying Certificateholder: The Trustee or its Depository Participant for the benefit of the
Certificateholders.
Underlying Certificates: The Bear Xxxxxxx ARM Trust, Mortgage Pass-Through Certificates,
Series 2007-3, Class III-A-1 Certificates, as more particularly described in Schedule A hereto.
Underlying Distribution Date Statement: The monthly investor reports provided or made
available pursuant to the Underlying Agreement in respect of the Underlying Certificates in connection with each
Underlying Certificate Distribution Date.
Underlying Interest: With respect to any Distribution Date, an amount equal to the interest
received on the Underlying Certificates.
Underlying Principal: With respect to any Distribution Date, an amount equal to the principal
received on the Underlying Certificates.
Underlying Series: The series of securities which includes the Underlying Certificates.
Underlying Trust: The Bear Xxxxxxx ARM Trust 2007-3.
Underwriting Agreement: The Underwriting Agreement, dated as of February 26, 2007, between the
Depositor and Bear, Xxxxxxx.
United States Person or U.S. Person: (i) a citizen or resident of the United States, (ii) a
corporation or partnership (including an entity treated as a corporation or partnership for federal income tax
purposes) (except, in the case of a partnership, to the extent provided in regulations) organized in or under the
laws of the United States or any state thereof, including for this purpose, the District of Columbia, (iii) an
estate the income of which is subject to United States federal income tax regardless of its source or (iv) a
trust if a court within the United States is able to exercise primary supervision over the administration of the
trust and one or more United States persons have the authority to control all substantial decisions of the
trust. Notwithstanding the preceding sentence, to the extent provided in Treasury regulations, certain trusts in
existence on August 20, 1996 and treated as U.S. Persons prior to such date, that elect to be treated as a U.S.
Person, also will be U.S. Persons.
Widely Held Fixed Investment Trust: As such term is defined in Treasury Regulations section
1.671-5(b)(22) or successor provisions.
Widely Held Fixed Investment Trust Regulations: Treasury Regulations section 1.671-5, as
amended.
Widely Held Mortgage Trust: As such term is defined in Treasury Regulations section
1.671-5(b)(23) or successor provisions.
ARTICLE II
CONVEYANCE OF THE UNDERLYING CERTIFICATES; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of the Underlying Certificates.
(a) The Depositor, concurrently with the execution and delivery hereof, does hereby sell,
transfer, assign, set-over and otherwise convey to the Trustee, in trust, for the use and benefit of the
Certificateholders, without recourse, all the right, title and interest of the Depositor in and to (i) the
Underlying Certificates, including all amounts payable on the Underlying Certificates in accordance with the
terms thereof on or after the Closing Date, (ii) the Sale Agreement and (iii) all its right, title and
interest, if any, in all other assets constituting the Trust Fund.
(b) In connection with such transfer and assignment, and concurrently with its execution and
delivery of this Agreement, the Depositor shall have caused the Underlying Certificates to be registered in the
name of the Trustee for the benefit of the Certificateholders.
(c) It is intended that the conveyance by the Depositor to the Trustee of the Underlying
Certificates as provided for in this Section 2.01 be construed as a sale by the Depositor to the Trustee of the
Underlying Certificates. Further, it is not intended that such conveyance be deemed to be a grant of a security
interest in the Underlying Certificates by the Depositor to the Trustee to secure a debt or other obligation of
the Depositor. However, in the event that the Underlying Certificates are held to be property of the Depositor,
or if for any reason this Agreement is held or deemed to create a security interest in the Underlying
Certificates, then (a) this Agreement shall constitute a security agreement within the meaning of Article 9 of
the New York Uniform Commercial Code; (b) the conveyance provided for in Section 2.01 shall be deemed to be a
grant by the Depositor to the Trustee of, and the Depositor hereby grants to the Trustee as security for its
obligations hereunder, a security interest in all of the Depositor's right, title and interest, whether now owned
or hereafter acquired, in and to (1) the Underlying Certificates, including all amounts payable on the Underlying
Certificates in accordance with the terms thereof on or after the Closing Date, (3) the Sale Agreement, (4) all
its right, title and interest, if any, in all other assets constituting the Trust Fund, (5) all accounts, chattel
paper, deposit accounts, documents, general intangibles, goods, instruments, investment property,
letter-of-credit rights, letters of credit, money, and oil, gas, and other minerals, consisting of, arising from,
or relating to, any of the foregoing, and (6) all proceeds of the foregoing. The provisions of this Agreement
shall be construed so as to further such intent.
The Depositor and the Trustee, at the Depositor's or the Majority Certificateholders'
direction, shall, to the extent consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the Underlying Certificates and the other
property described above, such security interest would be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of this Agreement.
Section 2.02. Acceptance of Trust Fund by the Trustee; Initial Issuance of Certificates.
The Trustee acknowledges receipt of copies of the Underlying Agreement, the delivery of the
Underlying Certificates to the Trustee through the Depository, in good faith and without notice of any adverse
claim, and the receipt of all other assets included in the Trust Fund and declares that it holds and will hold the
Underlying Certificates and all other assets included in the Trust Fund in trust for the exclusive use and benefit
of all present and future Certificateholders in accordance with the terms of this Agreement. Concurrently with such
transfer, delivery and assignment and in exchange therefor, pursuant to the written request of the Depositor
executed by an officer of the Depositor, the Trustee has executed and caused to be authenticated and delivered to
or upon the order of the Depositor, the Certificates in authorized denominations evidencing the entire beneficial
ownership of the Trust.
Until the Trust is terminated in accordance with Section 7.01, except as provided herein, the
Trustee shall not assign, sell, dispose of or transfer any interest in the Underlying Certificates or any other
asset constituting the Trust Fund or permit the Underlying Certificates or any other asset constituting the Trust
Fund to be subjected to any lien, claim or encumbrance arising by, through or under the Trustee or any person
claiming by, through or under the Trustee.
Section 2.03. Representations and Warranties of the Depositor and the Trustee.
(a) The Depositor hereby represents and warrants to the Trustee and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and the Depositor is possessed of all licenses necessary to
carry on its business.
(ii) The execution and delivery of this Agreement by the Depositor, and the performance and
compliance with the terms of this Agreement by the Depositor, will not violate the Depositor's
certificate of incorporation or bylaws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the breach of, any material agreement
or other instrument to which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full right, power and authority to enter into and consummate all
transactions contemplated by this Agreement, including but not limited to selling the Underlying
Certificates to the Trustee, has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by the Trustee,
constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in
accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or
at law.
(v) The Depositor is not in violation of, and its execution and delivery of this Agreement
and its performance and compliance with the terms of this Agreement will not constitute a violation of,
any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation is likely to affect materially and
adversely either the ability of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) No litigation is pending or, to the best of the Depositor's knowledge, threatened,
against the Depositor which, if determined adversely to the Depositor, would prohibit the Depositor from
entering into this Agreement or is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial condition of the Depositor.
(vii) The Depositor was, immediately prior to the transfer of the Underlying Certificates to
the Trustee on behalf of the Trust, the sole owner thereof free and clear of any lien, pledge, charge or
encumbrance of any kind.
(viii) The Depositor acquired the Underlying Certificates in good faith without notice of any
adverse claim, lien, charge, encumbrance or security interest (including without limitation, federal tax
liens or liens arising under ERISA).
(ix) The Depositor has not assigned any interest in the Underlying Certificates or any
distributions thereon, except as contemplated herein.
(x) The Trustee will be entitled to distributions under the Underlying Agreement equal to
all distributions of interest and principal made on the Underlying Certificates.
(xi) The information relating to the Underlying Certificates set forth in Schedule A is
true and correct in all material respects.
(xii) The transfer of the Underlying Certificates by the Depositor to the Trustee on behalf
of the Trust pursuant to this Agreement is an absolute sale. The Underlying Certificates have been
reregistered in the name of the Trustee, on behalf of the Certificateholders, through the facilities of
the Depositary.
(xiii) The Depositor has no actual knowledge after reasonable inquiry that the Underlying
Certificates (1) were not validly issued by the Underlying Trust, (2) are not outstanding, (3) are not
the legal, valid, binding and enforceable obligation of the Underlying Trust, and (4) are not entitled
to the benefits of the Underlying Agreement pursuant to which such Underlying Certificates were issued
(except as limited by bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally or in accordance with general equitable principles).
(b) The Trustee hereby represents and warrants to the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association, duly organized and validly existing
under the laws of the United States of America.
(ii) The execution and delivery of this Agreement by the Trustee, and the performance and
compliance with the terms of this Agreement by the Trustee, will not violate the Trustee's charter or
bylaws or constitute a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets.
(iii) The Trustee has the full power and authority to enter into and consummate all
transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery by the Depositor
and the Trustee, constitutes a valid, legal and binding obligation of the Trustee, enforceable against
the Trustee in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of creditors' rights generally, and
(B) general principles of equity, regardless of whether such enforcement is considered in a proceeding
in equity or at law.
(v) The Trustee is not in violation of, and its execution and delivery of this Agreement
and its performance and compliance with the terms of this Agreement will not constitute a violation of,
any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation is likely to affect materially and
adversely either the ability of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee.
(vi) No litigation is pending or, to the best of the Trustee's knowledge, threatened,
against the Trustee which would prohibit the Trustee from entering into this Agreement or is likely to
materially and adversely affect either the ability of the Trustee to perform its obligations under this
Agreement or the financial condition of the Trustee.
(vii) The Underlying Certificates will be held by the Trustee through the Depository, the
information relating to the Underlying Certificates set forth on Schedule A hereto conforms to
information set forth in the Prospectus dated March 20, 2007 and the Prospectus Supplement dated April
26, 2007 for the Underlying Certificates; it has acquired the Underlying Certificates from the Depositor
in good faith, for value, and, to the best of the Trustee's knowledge, without notice or actual
knowledge of any adverse claim, lien, charge, encumbrance or security interest (including, without
limitation, federal tax liens or liens arising under ERISA); it has not and will not, in any capacity
except as Trustee, on behalf of the Certificateholders, assert any claim or interest in the Underlying
Certificates and will hold such Underlying Certificates and the proceeds thereof in trust pursuant to
the terms of this Agreement; and it has not encumbered or transferred its right, title or interest in
the Underlying Certificates.
(c) It is understood and agreed that the foregoing representations and warranties shall
survive the execution and delivery of this Agreement. Upon discovery by any party hereto of a breach of any of
the foregoing representations and warranties which materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach will give prompt written notice
thereof to the other parties hereto and the Certificateholders. Within thirty (30) days of the earlier of
either discovery by or notice to the Depositor of any breach of a representation or warranty of the Depositor
that materially and adversely affects the interests of the Certificateholders, the Depositor shall use its best
efforts promptly to cure such breach in all material respects and, if such breach cannot be cured and it
relates to an Underlying Certificate, the Depositor shall, at the election of the Majority Certificateholders,
repurchase the Underlying Certificates at the Repurchase Price. If the Depositor is to repurchase the
Underlying Certificates, the Trustee shall promptly determine the Repurchase Price in accordance with the
definition thereof. Repurchase of the Underlying Certificates pursuant to the foregoing provisions of this
Section 2.03(c) shall be accomplished by deposit by the Depositor in the Certificate Account on the Business
Day prior to the next succeeding Distribution Date of the amount of the Repurchase Price.
Section 2.04. Purposes and Powers of the Trust. The purpose of the Trust, as created hereunder, is to protect
and conserve the assets of the Trust, and the Trust shall not at any time engage in or carry on any kind of
business or any kind of commercial or investment activity. Subject to the foregoing, the Trust shall:
(i) issue the Certificates to, or at the written direction of, the Depositor in exchange
for the Underlying Certificates;
(ii) perform the activities of the Trust that are expressly set forth in this Agreement;
(iii) engage in those activities that are reasonably necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected therewith; and
(iv) subject to compliance with this Agreement, engage in such other activities as may be
required in connection with conservation of the assets of the Trust and the making of distributions to
the Certificateholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust shall not
engage in any activity other than the foregoing or other than as required or authorized by the terms of this
Agreement while any Certificate is outstanding without the consent of all of the Certificateholders; provided,
however, that in no event shall the Trustee or any other Person have any power to vary the investment of the
Certificateholders in the Certificates or to substitute new investments or reinvest so as to enable the Trust to
take advantage of variations in the market to improve the investment of the Certificateholders in the
Certificates.
It is intended that the Trust qualify as an "investment trust" within the meaning of Treasury
Regulation Section 301.7701-4(c), taxable as a grantor trust under Subpart E, part I of subchapter J of chapter 1
of the Code, of which the Certificateholders are owners, and it is neither the purpose nor the intent of the
parties hereto to create a partnership, joint venture, taxable mortgage pool or association taxable as a
corporation between or among the Certificateholders, the Trustee or the Depositor. The provisions of this
Agreement shall be construed so as to further such intent.
ARTICLE III
ADMINISTRATION OF THE UNDERLYING CERTIFICATES;
PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01. Administration of the Trust Fund and the Underlying Certificates.
If at any time the Trustee is requested, whether by a Certificateholder, a holder of a
certificate of the Underlying Series or a party to the Underlying Agreement or any other Person, to take any
action or to give any consent, approval or waiver, including, without limitation, in connection with an amendment
of the Underlying Agreement, the Trustee shall promptly notify all of the Holders of the Certificates and the
Depositor of such request and of its planned course of action with respect thereto and the Trustee shall, in its
capacity as registered owner of such Underlying Certificates, take such action in connection with the exercise
and/or enforcement of any rights and/or remedies available to it in such capacity with respect to such request,
as the majority of Certificateholders shall direct in writing.
Section 3.02. Collection of Monies.
(a) In connection with its receipt of any distribution on the Underlying Certificates on any
Underlying Certificates Distribution Date, the Trustee shall review the related Underlying Distribution Date
Statement and shall confirm that the aggregate amount of such distribution received by it with respect to the
Underlying Certificates is consistent with the Underlying Distribution Date Statement (it being understood that
the Trustee shall be entitled to rely on the accuracy and correctness of the Underlying Distribution Date
Statement).
(b) If the Trustee receives a Notice of Final Distribution in respect of the Underlying
Certificates, the Trustee shall cause the Underlying Certificates to be presented for final payment thereon in
accordance with the terms and conditions of the Underlying Agreement and such notice. The Trustee shall
promptly deposit in the Certificate Account the final distribution received upon such Underlying Certificate
for distribution in accordance with Section 3.05 hereof on the next succeeding Distribution Date for the
related Certificates.
Section 3.03. Establishment of Certificate Account; Deposits Therein.
(a) The Trustee, for the benefit of the Certificateholders, shall establish and maintain one
or more interest bearing trust accounts (collectively, the "Certificate Account"), each of which shall be an
Eligible Account, entitled "Xxxxx Fargo Bank, N.A., as trustee for the registered holders of Bear Xxxxxxx
Structured Products Inc. Trust, Series 2008-R1," held in trust by the Trustee for the benefit of the
Certificateholders. The Trustee shall cause to be deposited directly into the Certificate Account all
distributions received by the Trustee on the Underlying Certificates, from whatever source, and all amounts
received by it representing payment of a Repurchase Price pursuant to Section 2.03(c), subsequent to the
Closing Date. The Certificate Account is initially located at the Trustee. The Trustee shall give notice to
the Depositor and to Certificateholders of any new location of the Certificate Account prior to any change
thereof. The Trustee shall have the right to create sub-accounts of the Certificate Account to facilitate the
administration of funds.
(b) [Reserved]
(c) The Depositor shall cause all distributions received on the Underlying Certificates by
the Depositor or any of its Affiliates after the Closing Date to be provided to the Trustee for deposit into
the Certificate Account.
Section 3.04. Permitted Withdrawals From the Certificate Account.
The Trustee may from time to time withdraw funds from the Certificate Account for the following
purposes:
(i) to make distributions in the amounts and in the manner provided for in Section 3.05;
(ii) to pay to the Person entitled thereto any amount deposited in the Certificate Account
in error; and
(iii) to clear and terminate the Certificate Account upon the termination of this Agreement.
On each Distribution Date, the Trustee shall withdraw all funds from the Certificate Account and shall use such
funds withdrawn from the Certificate Account only for the purposes described in this Section 3.04 and in Section
3.05.
Section 3.05. Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts in the Certificate Account
representing Available Funds in the following manner and order of priority:
(i) to the Class A-1 Certificates, from the Class A-1 Percentage of Underlying Interest, an
amount equal to the Class A-1 Interest Distribution Amount; and if such Class A-1 Percentage of Underlying
Interest is insufficient, from the Class A-2 Percentage of Underlying Interest, and if such amounts are
insufficient, from the Class A-2 Percentage of Underlying Principal;
(ii) to the Class A-1 Certificates, from the Class A-1 Percentage of Underlying Principal, an
amount equal to the Class A-1 Principal Distribution Amount; and if such Class A-1 Percentage of Underlying
Principal is insufficient, from the Class A-2 Percentage of Underlying Principal (as such amount may have been
reduced as described in Section 3.05(a)(i) above); and if such amounts are insufficient, from the Class A-2
Percentage of Underlying Interest (as such amount may have been reduced as described in Section 3.05(a)(i) above);
(iii) to the Class A-2 Certificates, from the Class A-2 Percentage of Underlying Interest (as
such amount may have been reduced as described in Sections 3.05(a)(i) and 3.05(a)(ii) above), an amount equal to
the Class A-2 Interest Distribution Amount; and
(iv) to the Class A-2 Certificates, from the Class A-2 Percentage of Underlying Principal (as
such amount may have been reduced as described in Sections 3.05(a)(i) and 3.05(a)(ii) above), an amount equal to
the Class A-2 Principal Distribution Amount; and if such Class A-2 Percentage of Underlying Principal is
insufficient, from Underlying Interest (as such amount has been or may have been reduced as described in Section
3.05(a)(i) through 3.05(a)(iii) above).
(b) All distributions made to Holders of the Certificates pursuant to Section 3.05(a) on each
Distribution Date shall be allocated pro rata among the outstanding Certificates based upon their respective
Percentage Interests and, except in the case of the final distribution to the Holders of the Certificates,
shall be made to the Holders of record on the related Record Date. Distributions to any Certificateholder on
any Distribution Date shall be made by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing (which wiring instructions may be in the form of a standing order
applicable to all future Distribution Dates) no less than five Business Days prior to the related Record Date
(or, in the case of the initial Distribution Date, no later than the related Record Date) and is the registered
owner of Certificates with an aggregate Initial Current Principal Amount of not less than $1,000,000, or
otherwise by check mailed by first class mail to the address of such Certificateholder appearing in the
Certificate Register. Final distribution to each Certificateholder will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office of the Trustee or such other
location specified in the notice to Certificateholders of such final distribution.
(c) Notwithstanding any other provision of this Agreement, the Trustee shall comply with all
federal withholding requirements respecting payments to Certificateholders that the Trustee reasonably believes
are applicable under the Code. The consent of Certificateholders shall not be required for such withholding.
In the event the Trustee does withhold any amount from payments to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such Certificateholders.
(d) Realized Losses. On any Distribution Date, the rights of the Class A-2 Certificates to
receive distributions will be subordinated to the Class A-1 Certificates to the extent of any Realized Losses
allocated to the Underlying Certificates, as further described under Section 3.05(a) of this Agreement.
Section 3.06. Statements to Certificateholders.
On each Distribution Date, the Trustee shall prepare and make available to each
Certificateholder, the Depositor and the Rating Agencies, on its website, a statement with respect to such
Distribution Date, stating:
(i) the Available Funds for such Distribution Date, including the cash flows received and
the sources thereof for distributions;
(ii) the Interest Distribution Amount and the amount with respect to principal paid on each
Class of Certificates with respect to such Distribution Date;
(iii) the Current Principal Amount of each Class of Certificates before and after applying
payments on such Distribution Date;
(iv) the applicable record dates, accrual dates and actual Distribution Dates for the
period;
(v) the Pass-Through Rate on each Class of Certificates for such Distribution Date; and
(vi) the interest rate on the Underlying Certificates for such Distribution Date.
In the case of the information furnished pursuant to clause (ii) above, the amounts shall also
be expressed as a dollar amount per $100,000 of principal face amount.
The Trustee may make available each month, to any interested party, the monthly statement to
Certificateholders via the Trustee's website initially located at "xxx.xxxxxxx.xxx." Assistance in using the
website can be obtained by calling the Trustee's customer service desk at 0-000-000-0000. Parties that are unable
to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by
calling the Trustee's customer service desk and indicating such. The Trustee shall have the right to change the
way such reports are distributed in order to make such distribution more convenient and/or more accessible to the
parties, and the Trustee shall provide timely and adequate notification to all parties regarding any such change.
In addition, the Trustee promptly will furnish to the Depositor and, upon the written request
of a Certificateholder, to such Certificateholder, copies of any written notices, statements, reports or other
written communications, received by the Trustee in respect of the Underlying Certificates.
Section 3.07. Access to Certain Documentation and Information.
The Trustee shall provide to the Depositor access to all reports, documents and records
maintained by the Trustee in respect of its duties hereunder, such access being afforded without charge but only
upon three Business Days' written request and during normal business hours at offices designated by the Trustee.
Section 3.08. Calculation of Distribution Amounts.
All calculations of Available Funds, the Interest Distribution Amount and amounts payable with
respect to principal for any Distribution Date shall be performed by the Trustee in reliance on the information
provided to it in the applicable Underlying Distribution Date Statement.
Section 3.09. Annual Statement as to Compliance.
(a) The Trustee shall deliver (or otherwise make available) to the Depositor not later than
March 15th of each calendar year beginning in 2009, an Officer's Certificate (an "Annual Statement of
Compliance") stating, as to each signatory thereof, that (i) a review of the activities of the Trustee during
the preceding calendar year and of its performance under this Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such review, the Trustee has fulfilled
all of its obligations under this Agreement in all material respects throughout such year or applicable portion
thereof, or, if there has been a failure to fulfill any such obligation in any material respect, specifying
each such failure known to such officer and the nature and status of the cure provisions thereof. Such Annual
Statement of Compliance shall contain no restrictions or limitations on its use.
(b) The master servicer, servicer, trustee, securities administrator or custodian for the
Underlying Series will be required to provide to the Trustee and the Depositor an annual statement of
compliance pursuant to the related Underlying Agreement or a side letter agreement. The Depositor, in its
capacity as the depositor for each Underlying Series, shall forward any annual statement of compliance to the
Trustee to the extent not otherwise received by the Trustee (pursuant to a side letter agreement or an
Underlying Agreement in its capacity as master servicer or securities administrator of the related Underlying
Series) and any other annual statement of compliance of a Servicer that is required to be filed under the
related Form 10-K no later than two Business Days following March 15th of each calendar year in which a Form
10-K is required to be filed for the Trust.
(c) Failure of the Trustee to comply with this Section 3.09 (including with respect to the
timeframes required in this Section) which failure results in a failure to timely file the related Form 10-K,
shall, upon written notice from the Depositor, be deemed a default which may result in the termination of the
Trustee pursuant to Section 5.07 and the Depositor may, upon notice immediately terminate all of the rights and
obligations of the Trustee under this Agreement without compensating the Trustee for the same (but subject to
the Trustee's right to reimbursement of all amounts for which it is entitled to be reimbursed prior to the date
of termination). Upon such termination, the Trustee shall immediately transfer or cause to be transferred to
the successor Trustee all Underlying Certificates and other assets of the Trust Fund held by or on behalf of
the Trustee. This paragraph shall supersede any other provision in this Agreement or any other agreement to
the contrary.
Section 3.10. Assessments of Compliance and Attestation Reports.
Pursuant to Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB, the Trustee (to
the extent set forth in this Section) (the "Attesting Party") shall deliver (or otherwise make available) to the
Depositor on or before March 15th of each calendar year in which a Form 10-K is filed with the Commission with
respect to the Certificates, beginning in 2009, a report regarding the Attesting Party's assessment of compliance
(an "Assessment of Compliance") with the Servicing Criteria applicable to it during the preceding calendar year.
The Assessment of Compliance, as set forth in Regulation AB, must contain the following:
(a) A statement by an authorized officer of the Attesting Party of its authority and responsibility
for assessing compliance with the Servicing Criteria applicable to the Attesting Party;
(b) A statement by an authorized officer that the Attesting Party used the Servicing Criteria
identified in Exhibit C hereto to assess compliance with the Servicing Criteria applicable to the Attesting Party;
(c) An assessment by such officer of the Attesting Party's compliance with the applicable Servicing
Criteria for the period consisting of the preceding calendar year, including disclosure of any material instance
of noncompliance with respect thereto during such period, which assessment shall be based on the activities the
Attesting Party performs with respect to asset-backed securities transactions taken as a whole involving the
Attesting Party, that are backed by the same asset type as those backing the Underlying Certificates;
(d) A statement that a registered public accounting firm has issued an attestation report on the
Attesting Party's Assessment of Compliance for the period consisting of the preceding calendar year; and
(e) A statement as to which of the Servicing Criteria, if any, are not applicable to the Attesting
Party, which statement shall be based on the activities the Attesting Party performs with respect to asset-backed
securities transactions taken as a whole involving the Attesting Party, that are backed by the same asset type as
those backing the Underlying Certificates.
Such report at a minimum shall address each of the Servicing Criteria specified on Exhibit C hereto
which are indicated as applicable to the Attesting Party.
On or before March 15th of each calendar year in which a Form 10-K is filed with the Commission with
respect to the Certificates, beginning in 2009, the Attesting Party shall furnish (or otherwise make available)
to the Depositor a report (an "Attestation Report") by a registered public accounting firm that attests to, and
reports on, the Assessment of Compliance made by the Attesting Party, as required by Rules 13a-18 and 15d-18 of
the Exchange Act and Item 1122(b) of Regulation AB, which Attestation Report must be made in accordance with
standards for attestation reports issued or adopted by the Public Company Accounting Oversight Board.
Each party to the Underlying Series that is determined by the Depositor to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB will be required to provide to the Trustee
and/or the Depositor an assessment of compliance and attestation report pursuant to the related Underlying
Agreement or a side letter agreement. The Depositor, in its capacity as depositor for each Underlying Series,
shall forward any assessment of compliance and attestation report to the Trustee to the extent not otherwise
received by the Trustee (pursuant to a side letter agreement or an Underlying Agreement in its capacity as master
servicer or securities administrator of any Underlying Series) and any other assessment of compliance and
attestation report to be filed under the related Form 10-K no later than two Business Days following March 15th
in any calendar year in which a Form 10-K is to be filed by the Trust. The Depositor will identify in writing by
no later than January 30th of each year for which a Form 10-K is to be filed for the Trust and provide any
assessment of compliance and attestation report to the Trustee required to be included in any Form 10-K to the
extent not otherwise received by the Trustee as set forth in the previous sentence.
The Depositor shall confirm that each Assessment of Compliance delivered to it addresses all of the
Servicing Criteria set forth in Exhibit C and notify the Trustee of any exceptions. Notwithstanding the
foregoing, as to any subcontractor, an Assessment of Compliance is not required to be delivered unless it is
required as part of a Form 10-K with respect to the Trust Fund.
Failure of the Trustee to comply with this Section 3.10 (including with respect to the timeframes
required in this Section) which failure results in a failure to timely file the related Form 10-K, shall be
deemed a default which may result in the termination of the Trustee pursuant to Section 5.07 and the Depositor
may, upon notice immediately terminate all of the rights and obligations of the Trustee under this Agreement
without compensating the Trustee for the same (but subject to the Trustee's right to reimbursement of all amounts
for which it is entitled to be reimbursed prior to the date of termination). Upon such termination, the Trustee
shall immediately transfer or cause to be transferred to the successor Trustee all Underlying Certificates and
other assets of the Trust Fund held by or on behalf of the Trustee. This paragraph shall supersede any other
provision in this Agreement or any other agreement to the contrary.
Section 3.11. Reports Filed with Securities and Exchange Commission.
(a) (i) (A) Within 15 days after each Distribution Date, for so long as the Trust is subject to
Exchange Act reporting requirements, the Trustee shall, in accordance with industry standards, prepare and file
with the Commission via the Electronic Data Gathering and Retrieval System ("XXXXX"), a Distribution Report on
Form 10-D, signed by the Depositor, with a copy of the Monthly Statement to be furnished by the Trustee to the
Certificateholders for such Distribution Date; provided that, the Trustee shall have received no later than five
(5) calendar days after the related Distribution Date, all information required to be provided to the Trustee in
such capacity as securities administrator for the Underlying Series as described in clause (a)(iv) below. Any
disclosure that is in addition to the Monthly Statement and that is required to be included on Form 10-D,
including any information that is required to be filed under Form 10-D in connection with the Underlying Series
pursuant to the Underlying Agreement, certain side letter agreements or otherwise required to be provided or
incorporated by reference as instructed by the Depositor ("Additional Form 10-D Disclosure") shall be, pursuant
to the paragraph immediately below, reported by the parties set forth on Exhibit D to the Trustee and the
Depositor and approved by the Depositor. The Trustee will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-D Disclosure absent such reporting (other than in the case where the
Trustee is the reporting party as set forth in Exhibit D) and approval. Notwithstanding anything in this
Agreement or the Underlying Agreement to the contrary, the Trustee, as master servicer and/or securities
administrator for each of the Underlying Series, shall aggregate and make available to the Depositor all
information provided pursuant to Item 1121 of Regulation AB with respect to each Underlying Series for purposes
of including such information in each Form 10-D that is required to be filed under this Agreement.
(B) Within five (5) calendar days after the related Distribution Date, (i) the parties set forth in
Exhibit D shall be required to provide, pursuant to Section 3.11(a)(iv) below, to the Trustee and the Depositor,
to the extent known by a responsible officer thereof, in XXXXX-compatible format, or in such other form as
otherwise agreed upon by the Trustee and the Depositor and such party, the form and substance of any Additional
Form 10-D Disclosure, if applicable and (ii) the Depositor shall approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Depositor
shall be responsible for any reasonable fees and expenses assessed or incurred by the Trustee in connection with
including any Additional Form 10-D Disclosure on Form 10-D pursuant to this Section.
(C) After preparing the Form 10-D, the Trustee shall forward electronically a copy of the Form 10-D to
the Depositor for review. Within two Business Days after receipt of such copy, but no later than the 12th calendar
day after the Distribution Date (provided that, the Trustee forwards a copy of the Form 10-D no later than the 10th
calendar day after the Distribution Date), the Depositor shall notify the Trustee in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-D. In the absence of receipt of any written
changes or approval, the Trustee shall be entitled to assume that such Form 10-D is in final form and the Trustee
may proceed with the filing of the Form 10-D. No later than the 13th calendar day after the related Distribution
Date, a duly authorized officer of the Depositor shall sign the Form 10-D and return an electronic or fax copy of
such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Trustee. If a Form
10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Trustee shall follow the
procedures set forth in Section 3.11(a)(v). Promptly (but no later than one (1) Business Day) after filing with the
Commission, the Trustee shall make available on its internet website a final executed copy of each Form 10-D filed
by the Trustee. The parties to this Agreement acknowledge that the performance by the Trustee of its duties under
Sections 3.11(a)(i) and (v) related to the timely preparation, execution and filing of Form 10-D is contingent upon
such parties strictly observing all applicable deadlines in the performance of their duties under such Sections.
The Trustee shall not have any liability for any loss, expense, damage or claim arising out of or with respect to
any failure to properly prepare and timely file such Form 10-D, where such failure results from the Trustee's
inability or failure to receive, on a timely basis, any information from any other party hereto needed to prepare,
arrange for execution or file such Form 10-D, not resulting from its own negligence, bad faith or willful
misconduct.
Each of Form 10-D and Form 10-K requires the registrant to indicate (by checking "yes" or "no") that it
"(1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding
12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby represents to the Trustee that
the Depositor has filed all such required reports during the preceding 12 months and it has been subject to such
filing requirements for the past 90 days. The Depositor shall notify the Trustee in writing, no later than the
fifth calendar day after the related Distribution Date with respect to the filing of a report on Form 10-D and no
later than March 15th with respect to the filing of a report on Form 10-K, if the answer to the questions should
be "no." The Trustee shall be entitled to rely on such representations in preparing, executing and/or filing any
such report.
(ii) (A) Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K
(each such event, a "Reportable Event"), for so long as the Trust is subject to Exchange Act reporting
requirements, the Trustee shall prepare and file, at the direction of the Depositor, on behalf of the Trust, any
Form 8-K, as required by the Exchange Act; provided that, the Depositor shall prepare and file the initial Form 8-K
in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K, including any Form 8-K filed in connection with the
Underlying Series ("Form 8-K Disclosure Information") shall be, pursuant to the paragraph immediately below,
reported by the parties set forth on Exhibit D to the Trustee and the Depositor and approved by the Depositor, and
the Trustee will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information absent such reporting (other than in the case where the Trustee is the reporting party as
set forth in Exhibit D) and approval.
(B) For so long as the Trust is subject to the Exchange Act reporting requirements, no later than the
close of business New York City time on the second (2nd) Business Day after the occurrence of a Reportable Event
(i) the parties set forth in Exhibit D and parties related to the Underlying Series and required to provide
information pursuant to the Underlying Agreement and certain side letter agreements, shall be required pursuant
to Section 3.11(a)(iv) below to provide to the Trustee and the Depositor, to the extent known by a responsible
officer thereof, in XXXXX-compatible format, or in such other form as otherwise agreed upon by the Trustee and
the Depositor and such party, the form and substance of any Form 8-K Disclosure Information, if applicable, and
(ii) the Depositor shall approve, as to form and substance, or disapprove, as the case may be, the inclusion of
the Form 8-K Disclosure Information on Form 8-K. The Depositor shall be responsible for any reasonable fees and
expenses assessed or incurred by the Trustee in connection with including any Form 8-K Disclosure Information on
Form 8-K pursuant to this Section.
(C) After preparing the Form 8-K, the Trustee shall forward electronically a copy of the Form 8-K to the
Depositor for review no later than the second (2nd) Business Day after the Reportable Event. No later than noon
New York City time on the fourth (4th) Business Day after the Reportable Event, a duly authorized officer of the
Depositor shall sign the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with an original
executed hard copy to follow by overnight mail) to the Trustee. Promptly, but no later than the close of
business on the third (3rd) Business Day after the Reportable Event, the Depositor shall notify the Trustee in
writing (which may be furnished electronically) of any changes to or approval of such Form 8-K filed by the
Trustee. In the absence of receipt of any written changes or approval, the Trustee shall be entitled to assume
that such Form 8-K is in final form and the Trustee may proceed with the filing of the Form 8-K. If a Form 8-K
cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Trustee shall follow the
procedures set forth in Section 3.11(a)(v). Promptly (but no later than one (1) Business Day) after filing with
the Commission, the Trustee shall make available on its internet website a final executed copy of each Form 8-K
filed by the Trustee. The parties to this Agreement acknowledge that the performance by the Trustee of its
duties under this Section 3.11(a)(ii) related to the timely preparation, execution and filing of Form 8-K is
contingent upon such parties strictly observing all applicable deadlines in the performance of their duties under
this Section 3.11(a)(ii). The Trustee shall have any liability for any loss, expense, damage or claim arising out
of or with respect to any failure to properly prepare, execute and/or timely file such Form 8-K, where such
failure results from the Trustee's inability or failure to receive, on a timely basis, any information from any
other party hereto needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own
negligence, bad faith or willful misconduct.
(iii) (A) Within 90 days after the end of each fiscal year of the Trust or such earlier date as may be
required by the Exchange Act (the "10-K Filing Deadline") (it being understood that the fiscal year for the Trust
ends on December 31st of each year), commencing in March 2009 and thereafter so long as the Trust is subject to
Exchange Act reporting requirements, the Trustee shall prepare and file on behalf of the Trust a Form 10-K, in
form and substance as required by the Exchange Act. Each such Form 10-K shall include the following items, in
each case to the extent they have been delivered to the Trustee within the applicable time frames set forth in
this Agreement, (I) an annual compliance statement for the Trustee and each master servicer, servicer, trustee,
securities administrator or custodian for the Underlying Series, as described under Section 3.09, (II)(A) the
annual report on assessment of compliance with Servicing Criteria for the Trustee and each master servicer,
servicer, trustee, securities administrator or custodian for the Underlying Series, as described under Section
3.10, and (B) if any such report on assessment of compliance with Servicing Criteria described under Section 3.10
identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if
any such report on assessment of compliance with Servicing Criteria described under Section 3.10 is not included
as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report
is not included, (III)(A) the registered public accounting firm attestation report for the Trustee and each
master servicer, servicer, trustee, securities administrator or custodian for the Underlying Series that is
required to be filed under Form 10-K, as described under Section 3.10, and (B) if any registered public
accounting firm attestation report described under Section 3.10 identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting
firm attestation report is not included as an exhibit to such Form 10-K, disclosure that such report is not
included and an explanation why such report is not included, and (IV) a Xxxxxxxx-Xxxxx Certification as described
in Section 3.11 (a)(iii)(D) below (provided, however, that the Trustee, at its discretion, may omit from the Form
10-K any annual compliance statement, assessment of compliance or attestation report that is not required to be
filed with such Form 10-K pursuant to Regulation AB). Any disclosure or information in addition to (I) through
(IV) above that is required to be included on Form 10-K, including the Form 10-K filed in connection with the
Underlying Series ("Additional Form 10-K Disclosure") shall be, pursuant to the paragraph immediately below,
reported by the parties set forth on Exhibit D to the Trustee and the Depositor and approved by the Depositor,
and the Trustee will have no duty or liability for any failure hereunder to determine or prepare any Additional
Form 10-K Disclosure absent such reporting (other than in the case where the Trustee is the reporting party as
set forth in Exhibit D) and approval.
(B) No later than March 15th of each year that the Trust is subject to the Exchange Act reporting
requirements, commencing in 2009, (i) the parties set forth in Exhibit D and parties related to the Underlying
Series and required to provide information pursuant to the Underlying Agreement and certain side letter agreements
shall be required to provide pursuant to Section 3.11(a)(iv) below to the Trustee and the Depositor, to the extent
known by a responsible officer thereof, in XXXXX-compatible format, or in such other form as otherwise agreed upon
by the Trustee and the Depositor and such party, the form and substance of any Additional Form 10-K Disclosure, if
applicable, and (ii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Depositor shall be responsible for any
reasonable fees and expenses assessed or incurred by the Trustee in connection with including any Additional Form
10-K Disclosure on Form 10-K pursuant to this Section. Notwithstanding anything in this Agreement or the Underlying
Agreement to the contrary, the Trustee shall aggregate all information provided by the parties related to the
Underlying Series pursuant to the Underlying Agreement, the side letter agreements or as otherwise required to be
provided by the Depositor or incorporated by reference as instructed by the Depositor, to the Depositor or the
Trustee, and shall include such information in any Form 10-K filed pursuant to this Agreement to the extent such
information is required to be included in such Form 10-K and is received by the Trustee.
(C) After preparing the Form 10-K, the Trustee shall forward electronically a copy of the Form 10-K to
the Depositor for review. Within three Business Days after receipt of such copy, but no later than March 25th of
such year, the Depositor shall notify the Trustee in writing (which may be furnished electronically) of any
changes to or approval of such Form 10-K. In the absence of receipt of any written changes or approval, the
Trustee shall be entitled to assume that such Form 10-K is in final form and the Trustee may proceed with the
filing of the Form 10-K. No later than the close of business Eastern Standard time on the fourth (4th) Business
Day prior to the 10-K Filing Deadline, a senior officer of the Depositor shall sign the Form 10-K and return an
electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail)
to the Trustee. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended,
the Trustee will follow the procedures set forth in Section 3.11(a)(v). Promptly (but no later than one (1)
Business Day) after filing with the Commission, the Trustee shall make available on its internet website a final
executed copy of each Form 10-K filed by the Trustee. The parties to this Agreement acknowledge that the
performance by the Trustee of its duties under Sections 3.11(a)(iii) and (v) related to the timely preparation,
execution and filing of Form 10-K is contingent upon such parties strictly observing all applicable deadlines in
the performance of their duties under such Sections and Section 3.09 and Section 3.10. The Trustee shall not
have any liability for any loss, expense, damage or claim arising out of or with respect to any failure to properly
prepare, execute and/or timely file such Form 10-K, where such failure results from the Trustee's inability or
failure to receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for
execution or file such Form 10-K, not resulting from its own negligence, bad faith or willful misconduct.
(D) Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx Certification") required to be
included therewith in compliance with Item 601(b)(31)(ii) of Regulation S-K, which shall be signed by the
Certifying Person and delivered to the Trustee no later than March 15th of each year in which the Trust is
subject to the reporting requirements of the Exchange Act. The Trustee shall provide to the Depositor, as the
Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person"), by March 10th of each year in which
the Trust is subject to the reporting requirements of the Exchange Act and otherwise within a reasonable period
of time upon request, a certification (a "Back-Up Certification"), in the form attached hereto as Exhibit B, upon
which the Certifying Person, the entity for which the Certifying Person acts as an officer, and such entity's
officers, directors and Affiliates (collectively with the Certifying Person, "Certification Parties") can
reasonably rely. A senior officer of the Depositor shall serve as the Certifying Person on behalf of the Trust.
(iv) With respect to any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or any Form
8-K Disclosure Information (collectively, the "Additional Disclosure") relating to the Trust Fund, the Trustee's
obligation to include such Additional Information in the applicable Exchange Act report is subject to receipt
from the entity that is indicated in Exhibit D as the responsible party for providing that information, if other
than the Trustee, as and when required as described in Section 3.11(a)(i) through (iii) above. Such Additional
Disclosure shall be accompanied by a notice substantially in the form of Exhibit E. Both of the Trustee and the
Depositor hereby agree to notify and provide to the extent known to the Trustee and the Depositor all Additional
Disclosure relating to the Trust Fund, with respect to which such party is indicated in Exhibit E as the
responsible party for providing that information. The Depositor shall be responsible for any reasonable fees and
expenses assessed or incurred by the Trustee in connection with including any Additional Disclosure information
pursuant to this Section.
So long as the Depositor is subject to the reporting requirements of the Exchange Act with respect to
the Trust Fund, the Trustee shall notify the Depositor of any bankruptcy or receivership with respect to the
Trustee or of any proceedings of the type described under Item 1117 of Regulation AB that have occurred as of the
related due period, together with a description thereof, no later than the date on which such information is
required of other parties hereto as set forth under this Section 3.11. In addition, the Trustee shall notify the
Depositor of any affiliations or relationships that develop after the Closing Date between the Trustee and the
Depositor or the Sponsor of the type described under Item 1119 of Regulation AB, together with a description
thereof, no later than the date on which such information is required of other parties hereto as set forth under
this Section 3.11. Should the identification of any of the Depositor or the Sponsor change, the Depositor shall
promptly notify the Trustee.
(v) (A) On or prior to January 30th of the first year in which the Trustee is able to do so under
applicable law, the Trustee shall prepare and file a Form 15 relating to the automatic suspension of reporting in
respect of the Trust under the Exchange Act.
(B) In the event that the Trustee is unable to timely file with the Commission all or any required
portion of any Form 8-K, 10-D or 10-K required to be filed by this Agreement because required disclosure
information was either not delivered to it or delivered to it after the delivery deadlines set forth in this
Agreement or for any other reason, the Trustee shall promptly notify the Depositor. In the case of Form 10-D and
10-K, the Depositor and the Trustee shall cooperate to prepare and file a Form 12b-25 and a 10-DA and 10-KA as
applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Trustee will, upon receipt
of all required Form 8-K Disclosure Information and upon the approval and direction of the Depositor, include
such disclosure information on the next Form 10-D. In the event that any previously filed Form 8-K, 10-D or 10-K
needs to be amended, and such amendment relates to any Additional Disclosure, the Trustee shall notify the
Depositor and the parties affected thereby and such parties will cooperate to prepare any necessary Form 8-K,
10-DA or 10-KA. Any Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K shall be signed by a duly
authorized officer of the Depositor. The parties hereto acknowledge that the performance by the Depositor and
the Trustee of their respective duties under this Section 3.11(a)(v) related to the timely preparation, execution
and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is contingent upon the Depositor
timely performing its duties under this Section. The Trustee shall not have any liability for any loss, expense,
damage or claim arising out of or with respect to any failure to properly prepare, execute and/or timely file any
such Form 15, Form 12b-25 or any amendments to Form 8-K, 10-D or 10-K, where such failure results from the
Trustee's inability or failure to receive, on a timely basis, any information from any other party hereto needed
to prepare, arrange for execution or file such Form 15, Form 12b-25 or any amendments to Form 8-K, 10-D or 10-K,
not resulting from its own negligence, bad faith or willful misconduct.
The Depositor agrees to promptly furnish to the Trustee, from time to time upon request, such further
information, reports and financial statements within its control related to this Agreement and the Underlying
Certificates as the Trustee reasonably deems appropriate to prepare and file all necessary reports with the
Commission. The Trustee shall have no responsibility to file any items other than those specified in this Section
3.11; provided, however, the Trustee shall cooperate with the Depositor in connection with any additional filings
with respect to the Trust Fund as the Depositor deems necessary under the Exchange Act. Fees and expenses
incurred by the Trustee in connection with this Section 3.11 shall not be reimbursable from the Trust Fund.
(b) The Trustee shall indemnify and hold harmless the Depositor and each of its officers, directors
and affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the
Trustee's obligations under Sections 3.09, 3.10 and 3.11 or the Trustee's negligence, bad faith or willful
misconduct in connection therewith. In addition, the Trustee shall indemnify and hold harmless the Depositor and
each of its respective officers, directors and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon (i) any untrue statement or alleged untrue statement of any material fact contained
in any Back-Up Certification, any Annual Statement of Compliance, any Assessment of Compliance or any Additional
Disclosure provided by the Trustee on its behalf pursuant to Section 3.09, 3.10 or 3.11 (the "Trustee
Information"), or (ii) any omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances in which they were made, not
misleading; provided, by way of clarification, that this paragraph shall be construed solely by reference to the
Trustee Information and not to any other information communicated in connection with the Certificates, without
regard to whether the Trustee Information or any portion thereof is presented together with or separately from
such other information.
The Depositor shall indemnify and hold harmless the Trustee and each of its officers, directors and
affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or based upon a breach of the
obligations of the Depositor under Sections 3.09, 3.10 and 3.11 or the Depositor's negligence, bad faith or
willful misconduct in connection therewith. In addition, the Depositor shall indemnify and hold harmless the
Trustee and each of its respective officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in any Additional Disclosure provided by the Depositor that is required to be filed pursuant to
this Section 3.11 (the "Depositor Information"), or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, by way of clarification, that this paragraph
shall be construed solely by reference to the Depositor Information that is required to be filed and not to any
other information communicated in connection with the Certificates, without regard to whether the Depositor
Information or any portion thereof is presented together with or separately from such other information.
If the indemnification provided for herein is unavailable or insufficient to hold harmless the Depositor
or the Trustee, as applicable, then the defaulting party, in connection with any conduct for which it is
providing indemnification under this Section 3.11(b), agrees that it shall contribute to the amount paid or
payable by the other parties as a result of the losses, claims, damages or liabilities of the other party in such
proportion as is appropriate to reflect the relative fault and the relative benefit of the respective parties.
The indemnification provisions set forth in this Section 3.11(b) shall survive the termination of this
Agreement or the termination of any party to this Agreement.
(c) Failure of the Trustee to comply with this Section 3.11 (including with respect to the
timeframes required in this Section) which failure results in a failure to timely file the related Form 10-K,
shall be deemed a default which may result in the termination of the Trustee pursuant to Section 5.07 and the
Depositor may, upon notice immediately terminate all of the rights and obligations of the Trustee under this
Agreement without compensating the Trustee for the same (but subject to the Trustee's right to reimbursement of
all amounts for which it is entitled to be reimbursed prior to the date of termination). Upon such termination,
the Trustee shall immediately transfer or cause to be transferred to the successor Trustee all Underlying
Certificates and other assets of the Trust Fund held by or on behalf of the Trustee. This paragraph shall
supersede any other provision in this Agreement or any other agreement to the contrary. Notwithstanding anything
to the contrary in this Agreement, no default by the Trustee shall have occurred with respect to any failure to
properly prepare, execute and/or timely file any report on Form 8-K, Form 10-D or Form 10-K, any Form 15 or Form
12b-25 or any amendments to Form 8-K, 10-D or 10-K, where such failure results from the Trustee's inability or
failure to receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for
execution or file any such report, Form or amendment, and does not result from its own negligence, bad faith or
willful misconduct.
(d) This Section 3.11 may be amended without the consent of the Certificateholders.
(e) Any report, notice or notification to be delivered by the Trustee to the Depositor pursuant to
this Section 3.11, may be delivered via email to XxxXXXxxxxxxxxxxxx@xxxx.xxx or, in the case of a notification,
telephonically by calling Reg AB Compliance Manager at 000-000-0000.
Section 3.12. UCC. The Depositor shall inform the Trustee in writing of any Uniform Commercial Code financing
statements that were filed on the Closing Date in connection with the transfer of the Underlying Certificates with
stamped filed copies of such financing statements to be delivered to the Trustee promptly upon receipt by the
Depositor. The Trustee agrees to monitor and notify the Depositor if any continuation statements for such Uniform
Commercial Code financing statements need to be filed. If directed by the Depositor in writing, the Trustee will
file any such continuation statements solely at the expense of the Depositor. The Depositor shall file any
financing statements or amendments thereto relating to the transfer of the Underlying Certificates by the Depositor
to the Trustee required by any change in the Uniform Commercial Code.
ARTICLE IV
THE CERTIFICATES
Section 4.01. The Certificates.
(a) The Depository and the Trustee, on behalf of the Trust, have entered into a letter
agreement dated as of January 16, 2008 (the "Depository Agreement"). Except as provided in Subsection 4.01(b),
the Certificates shall at all times remain registered in the name of the Depository or its nominee and at all
times: (i) registration of such Certificates may not be transferred by the Trustee except to a successor to
the Depository; (ii) ownership and transfers of registration of such Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository; (iii) the Depository may
collect its usual and customary fees, charges and expenses from its Depository Participants; (iv) the Trustee
shall deal with the Depository as representative of the Certificate Owners for purposes of exercising the
rights of Certificateholders under this Agreement, and requests and directions for and votes of such
representative shall not be deemed to be inconsistent if they are made with respect to different Certificate
Owners; and (v) the Trustee may rely and shall be fully protected in relying upon information furnished by the
Depository with respect to its Depository Participants.
All transfers by Certificate Owners of Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm representing such Certificate Owners.
Each Depository Participant shall only transfer Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal procedures.
(b) If (i)(A) the Depositor advises the Trustee in writing that the Depository is no longer
willing or able to properly discharge its responsibilities as Depository and (B) the Trustee or the Depositor
is unable to locate a qualified successor within 30 days or (ii) after the occurrence and continuation of a
default hereunder, the Certificate Owners of not less than 51% of the Percentage Interests of the Certificates
advise the Trustee and the Depository in writing through the depository participants that the continuation of a
book-entry system with respect to the Certificates through the Depository (or its successor) is no longer in
the best interests of the Certificate Owners, then the Trustee shall request that the Depository notify all
Certificate Owners of the occurrence of any such event and of the availability of definitive, fully registered
Certificates (the "Definitive Certificates") to Certificate Owners. Upon surrender to the Trustee of the
Certificates by the Depository, accompanied by registration instructions from the Depository for registration,
the Trustee shall issue the Definitive Certificates. Neither the Depositor nor the Trustee shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on,
such instructions.
(c) The Certificates shall be substantially in the forms set forth in Exhibit A hereto. The
Certificates shall be executed by manual signature on behalf of the Trustee in its capacity as trustee
hereunder by an authorized officer. Certificates bearing the manual or facsimile signatures of individuals who
were at the time of signing the proper officers of the Trustee shall be entitled to all benefits under this
Agreement, subject to the following sentence, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificates. No Certificate shall be entitled to any benefit under this Agreement, or be
valid for any purpose, unless there appears on such Certificate a certificate of authentication substantially
in the form provided for herein executed by the Certificate Registrar by manual signature, and such certificate
upon any Certificate shall be conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date of their authentication.
Pending the preparation of Definitive Certificates, the Trustee may sign and the Certificate
Registrar may authenticate temporary Certificates that are printed, lithographed or typewritten, in authorized
denominations for Certificates, substantially of the tenor of the Definitive Certificates in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers or
authorized signatories executing such Certificates may determine, as evidenced by their execution of such
Certificates. If temporary Certificates are issued, the Depositor will cause Definitive Certificates to be
prepared without unreasonable delay. After the preparation of Definitive Certificates, the temporary
Certificates shall be exchangeable for Definitive Certificates upon surrender of the temporary Certificates at
the office of the Trustee, without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Trustee shall sign and the Certificate Registrar shall authenticate and deliver in
exchange therefor a like aggregate principal amount, in authorized denominations, of Definitive Certificates.
Until so exchanged, such temporary Certificates shall in all respects be entitled to the same benefits as
Definitive Certificates.
(d) The Certificates will be initially registered as a single Certificate held by a nominee
of the Depository, and beneficial interests will be held by investors through the book-entry facilities of the
Depository in minimum denominations of $100,000 and increments of $1 in excess thereof.
Section 4.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be maintained at the office
of a registrar (the "Certificate Registrar") a register (the "Certificate Register") in which, subject to such
reasonable regulations as the Certificate Registrar may prescribe, the Certificate Registrar shall provide for
the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The
Trustee is initially appointed (and hereby agrees to act in accordance with the terms hereof) as Certificate
Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein
provided. For so long as the Trustee acts as Certificate Registrar, its Corporate Trust Office shall
constitute the offices of the Certificate Registrar maintained for such purposes. The Certificate Registrar
may appoint, by a written instrument delivered to the Depositor and the Trustee, any other bank or trust
company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may
prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment. If the Trustee resigns or is removed in accordance
with the terms hereof, the successor Trustee shall immediately succeed to its predecessor's duties as
Certificate Registrar. The Depositor and the Trustee shall have the right to inspect the Certificate Register
or to obtain a copy thereof at all reasonable times, and to rely conclusively upon a certificate of the
Certificate Registrar as to the information set forth in the Certificate Register.
Every Certificateholder agrees with the Certificate Registrar and the Trustee that neither the
Certificate Registrar, nor the Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
(b) [Reserved]
(c) Subject to the preceding subsections, upon surrender for registration of transfer of any
Certificate at the offices of the Certificate Registrar maintained for such purpose, the Trustee shall execute
and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of a like aggregate Percentage Interest.
(d) At the option of any Holder, its Certificates may be exchanged for other Certificates of
authorized denominations of a like aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such purpose. Whenever any Certificates
are so surrendered for exchange, the Trustee shall execute and the Certificate Registrar shall authenticate and
deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(e) Every Certificate presented or surrendered for transfer or exchange shall be duly
endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee duly
executed by, the Holder thereof or its attorney duly authorized in writing.
(f) No service charge shall be made for any transfer or exchange of Certificates, but the
Trustee may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(g) All Certificates surrendered for transfer and exchange shall be destroyed by the
Certificate Registrar without liability on its part.
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate Registrar, or the Trustee
and the Certificate Registrar receive evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and (ii) (except in the case of a mutilated Certificate) there is delivered to the Trustee and the
Certificate Registrar such agreement, security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a protected purchaser, the Trustee shall execute and the Certificate Registrar shall
authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and Percentage Interest but bearing a number not contemporaneously
outstanding. Upon the issuance of any new Certificate under this Section, the Trustee may require the payment by
the Certificateholder of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto. Any duplicate Certificate issued pursuant to this Section shall constitute complete and
indefeasible 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 4.04. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of transfer, the Depositor, the
Trustee, the Certificate Registrar and any agent of the Depositor, the Trustee or the Certificate Registrar may
treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 3.05 and for all other purposes whatsoever, and none of the
Depositor, the Trustee, the Certificate Registrar nor any agent of the Depositor, the Trustee or the Certificate
Registrar shall be affected by notice to the contrary.
ARTICLE V
THE TRUSTEE
Section 5.01. Duties of the Trustee.
(a) Upon receipt of all resolutions, certificates, statements, opinions, reports, documents,
orders or other instruments which are specifically required to be furnished to the Trustee pursuant to any
provision of this Agreement, the Trustee shall examine them to determine whether they are in the form required
by this Agreement and the Underlying Agreement; provided, however, that the Trustee shall not be responsible
for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other
instrument furnished hereunder; provided, further, that the Trustee shall not be responsible for the accuracy
or verification of any calculation provided to it pursuant to this Agreement. The Trustee shall notify the
Certificateholders, and the Rating Agencies of any such documents which do not materially conform to the
requirements of this Agreement in the event that the Trustee, after so requesting of the party required to
deliver the same, does not receive satisfactorily corrected documents or a satisfactory explanation regarding
any such nonconformities.
(b) No provision of this Agreement shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act or its own willful misconduct; provided,
however, that:
(i) The duties and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for the performance of its
respective duties and obligations as are specifically set forth in this Agreement, no implied covenants
or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on
the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Agreement;
(ii) The Trustee shall not be liable in its individual capacity for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be liable with respect to any action taken, suffered or omitted
to be taken by it in good faith in accordance with the direction of the Majority Certificateholders in
accordance with the terms of this Agreement, as to the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or other power conferred upon
the Trustee under this Agreement;
(iv) The Trustee shall not in any way be liable by reason of any insufficiency in any
Account held by or in the name of the Trustee unless it is determined by a court of competent
jurisdiction that the Trustee's gross negligence or willful misconduct was the primary cause of such
insufficiency (except to the extent that the Trustee is obligor and has defaulted thereon);
(v) Anything in this Agreement to the contrary notwithstanding, in no event shall the
Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Trustee has been advised of the likelihood of
such loss or damage and regardless of the form of action;
(vi) Neither the Depositor nor the Trustee shall be responsible for the acts or omissions
of the other, it being understood that this Agreement shall not be construed to render them partners,
joint venturers or agents of one another;
(vii) The Trustee shall not be required to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to it; provided that this
provision shall not be deemed to abrogate the responsibilities undertaken by the Trustee hereunder to
perform routine administrative duties in accordance with the terms of this Agreement;
(viii) The Trustee shall not be deemed to have notice of any fact or circumstance upon the
occurrence of which it may be required to take action hereunder unless a Responsible Officer of the
Trustee has actual knowledge of such event, fact or circumstance or unless written notice of any such
event is received by the Trustee at its Corporate Trust Office; and
(ix) Except for those actions that the Trustee is required to take hereunder, the Trustee
shall not have any obligation or liability to take any action or to refrain from taking any action
hereunder in the absence of written direction as provided hereunder.
Section 5.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 5.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting in
reliance on any resolution, Officers' Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee may consult with counsel and any advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection with respect to any action taken or
suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) The Trustee shall not be under any obligation to exercise any of the trusts or powers
vested in it by this Agreement, other than its obligation to give notices pursuant to this Agreement, or
to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
(iv) The Trustee shall not be liable in its individual capacity for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(v) The Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, but the Trustee in its discretion may make such
further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to the extent reasonable
under the circumstances to examine the books, records and premises of such Person, personally or by
agent or attorney;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and shall not be liable for the default
or misconduct of any such agents or attorneys if selected with reasonable care; and
(vii) The right of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be accountable for other than its negligence
or willful misconduct in the performance of any such act.
Section 5.03. Trustee Not Liable for Certificates or Underlying Certificates.
The recitals contained herein and in the Certificates (other than the statements attributed to,
and the representations and warranties of, the Trustee in Section 2.03(b) and the signature and countersignature
of the Certificate Registrar on the Certificates) shall not be taken as the statements of the Trustee, and the
Trustee shall not have any responsibility for their correctness. The Trustee makes no representation as to the
validity or sufficiency of this Agreement (other than as specifically set forth in Section 2.03(b)), the
Underlying Agreement or of the Certificates (other than that the Certificates shall be duly and validly executed
by the Trustee and authenticated by it as Certificate Registrar) or of the Underlying Certificates or any related
document. The Trustee shall not be accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or application of any funds paid to the
Depositor in respect of the assignment and delivery of the Underlying Certificates.
Section 5.04. Trustee May Own Certificates.
The Trustee in its individual capacity or in any capacity other than as Trustee hereunder may
become the owner or pledgee of any Certificates with the same rights it would have if it were not Trustee and may
otherwise deal with the parties hereto.
Section 5.05. Trustee's Fees and Expenses.
(a) The Trustee shall be reimbursed for all expenses and fees incurred in connection with
this Agreement by Bear, Xxxxxxx.
(b) [Reserved]
(c) The Trustee and any director, officer, employee or agent of the Trustee shall be entitled
to be indemnified and held harmless by Bear, Xxxxxxx against any loss, liability or expense (including, without
limitation, costs and expenses of litigation, and of investigation, counsel fees and expenses, damages,
judgments, amounts paid in settlement and out-of-pocket expenses) arising out of, or incurred in connection
with this Agreement, the Underlying Agreement, the Underlying Certificates and the Certificates and the
exercise and performance of any of the powers and duties of the Trustee hereunder or thereunder; provided that
neither the Trustee, nor any of the other above specified Persons, as applicable, shall be entitled to
indemnification pursuant to this Section 5.05(c) for any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's obligations and duties
hereunder, or by reason of reckless disregard of such obligations or duties.
The provisions of this Section 5.05 shall survive any resignation or removal of the Trustee and
appointment of a successor Trustee.
Section 5.06. Eligibility Requirements for Trustee.
The Trustee and any successor Trustee shall during the entire duration of this Agreement be a
state bank or trust company or a national banking association organized and doing business under the laws of such
state or the United States of America, authorized under such laws to exercise corporate trust powers, having a
combined capital, and surplus and undivided profits of at least $50,000,000 (or shall be a member of a bank
holding system, the combined capital and surplus of which is at least $50,000,000) and subject to supervision or
examination by federal or state authority. If the Trustee publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes
of this Section the combined capital and surplus of such corporation shall be deemed to be its total equity
capital (combined capital and surplus) as set forth in its most recent report of condition so published. The
Trustee shall at all times meet the requirements of Section 26(a)(1) of the Investment Company Act and shall in
no event be an Affiliate of the Depositor or of any Person involved in the organization or operation of the
Depositor. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 5.07.
Section 5.07. Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the trust hereby created by
giving written notice thereof to the Depositor and the Certificateholders. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to each of the resigning trustee and the successor Trustee. If no
successor Trustee shall have been so appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Xxxxxxx.
(b) If at any time the Trustee shall cease to be eligible in accordance with the provisions
of Section 5.06 and shall fail to resign after written request therefor by the Depositor or the Majority
Certificateholders, or if at any time the Trustee shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Depositor shall promptly remove the Trustee and appoint a
successor Trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor Trustee.
(c) Majority Certificateholders may at any time remove the Trustee and appoint a successor
Trustee by written instrument or instruments, in quadruplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall be delivered to the Depositor
and the Trustee so removed and the successor Trustee so appointed. A copy of such instrument shall be
delivered to the Certificateholders by the Depositor. All reasonable out-of-pocket costs and expenses incurred
in connection with such removal and replacement of the Trustee, including without limitation, reasonable
attorneys fees and expenses, shall be borne by the party requesting such action.
(d) No resignation or removal of the Trustee and appointment of a successor Trustee pursuant
to any of the provisions of this Section shall become effective except upon appointment of and acceptance of
such appointment by the successors as provided in Section 5.08 and (ii) no entity may be appointed as a
successor Trustee if such appointment would result in a withdrawal or downgrading of any then current rating
assigned to the Certificates by the Rating Agencies.
Section 5.08. Successor Trustee.
(a) Any successor Trustee appointed as provided in Section 5.07 shall execute, acknowledge
and deliver to the Depositor, the Certificateholders and to its predecessor Trustee an instrument accepting
such appointment hereunder. The resignation or removal of the predecessor Trustee shall then become effective
and the successor Trustee, without any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as
Trustee herein. The predecessor Trustee shall after payment of its outstanding fees and expenses promptly
deliver to the successor Trustee the Underlying Certificates, the other assets of the Trust Fund, and related
documents and statements held by it hereunder, and the Depositor and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor Trustee all such rights, powers, duties and obligations.
(b) No successor Trustee shall accept appointment as provided in this Section unless at the
time of such acceptance such successor Trustee shall be eligible under the provisions of Section 5.06.
(c) Upon acceptance of appointment by a successor Trustee, as provided in this Section, the
successor Trustee shall mail notice of the succession of such Trustee hereunder to all Certificateholders at
their addresses as shown in the Certificate Register and to the Rating Agencies. The Depositor shall cause
such notice to be mailed at the expense of the Depositor.
(d) Notwithstanding anything in this Agreement or the Underlying Agreement to the contrary,
in the event that the paying agent for the Underlying Series resigns or is terminated, the Trustee (if it was
such paying agent) shall resign as Trustee under this Agreement and the Depositor may appoint the successor
paying agent as the successor to the Trustee hereunder.
Section 5.09. Merger or Consolidation of Trustee.
Any state bank or trust company or national banking association into which the Trustee may be
merged or converted or with which it may be consolidated or any state bank or trust company or national banking
association resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any
state bank or trust company or national banking association succeeding to all or substantially all of the
corporate trust business of the Trustee shall be the successor of the Trustee hereunder, provided such state bank
or trust company or national banking association shall be eligible under the provisions of Section 5.06. Such
succession shall be valid without the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding. The Trustee shall mail notice of any such
merger or consolidation to the Depositor and to the Certificateholders at their address as shown in the
Certificate Register.
Section 5.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the purpose of meeting any
legal requirements of any jurisdiction in which any part of the Trust or property constituting the same may at
the time be located, the Depositor and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee and the Depositor to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or separate trustees, of all or any
part of the Trust, and to vest in such Person or Persons, in such capacity, such title to the Trust Fund, or
any part thereof, and, subject to the other provisions of this Section 5.10, such powers, duties, obligations,
rights and trusts as the Depositor and the Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as a successor Trustee under
Section 5.06 hereunder; provided, that if the co-trustee or separate trustee does not meet such eligibility
standards, the Trustee shall remain liable for its actions hereunder, and no notice to Certificateholders of
the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 5.08 hereof.
(b) If the Depositor shall not have joined in such appointment within 15 days after the
receipt by it of a written request so to do, the Trustee shall have the power to make such appointment without
the Depositor.
(c) In the case of any appointment of a co-trustee or separate trustee pursuant to this
Section 5.10, all rights, powers, duties and obligations conferred or imposed upon the Trustee and required to
be conferred on such co-trustee shall be conferred or imposed upon and exercised or performed jointly by the
Trustee and such separate trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed, the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee or co-trustee at the direction of the Trustee.
(d) Any notice, request or other writing given to the 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 Agreement and the conditions of
this Article V. 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 Trustee
or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically
including every provision of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with the Trustee.
(e) To the extent not prohibited by law, any separate trustee or co-trustee may, at any time,
request the Trustee, its agent or attorney-in-fact, with full power and authority, to do any lawful act under
or with respect to this Agreement on its behalf and in its name. If any separate 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 Trustee, to the extent permitted by law, without the appointment
of a new or successor Trustee.
(f) No trustee under this Agreement shall be personally liable by reason of any act or
omission of another trustee under this Agreement. The Depositor and the Trustee, acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
ARTICLE VI
THE DEPOSITOR
Section 6.01. Liability of the Depositor.
The Depositor shall be liable in accordance herewith only to the extent of the respective
obligations specifically imposed upon and undertaken by the Depositor herein.
Section 6.02. Merger, Consolidation or Conversion of the Depositor.
Subject to the following paragraph, the Depositor will keep in full effect its existence,
rights and franchises as a corporation under the laws of the jurisdiction of its incorporation, and will obtain
and preserve its qualification to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the
Certificates and to perform its duties under this Agreement.
The Depositor may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets to any Person, in which case any Person resulting from any merger or
consolidation to which the Depositor shall be a party, or any Person succeeding to the business of the Depositor,
shall be the successor of the Depositor hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Section 6.03. Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of the directors, officers, employees or agents of the Depositor
shall be under any liability to the Trust or the Certificateholders for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Depositor or any such other Person against any breach of a
representation or warranty made herein, or against any expense or liability specifically required to be borne
thereby pursuant to the terms hereof, or against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of obligations or duties hereunder, or by reason
of reckless disregard of such obligations and duties. The Depositor and any director, officer, employee or agent
of the Depositor may rely in good faith on any document of any kind which, prima facie, is properly executed and
submitted by any Person respecting any matters arising hereunder. Provided that such action is not related to
its representations made in or its duties under this Agreement, the Depositor shall not be under any obligation
to appear in, prosecute or defend any action or proceeding unless such action in its opinion does not involve it
in any expense or liability.
ARTICLE VII
TERMINATION
Section 7.01. Termination.
(a) The respective obligations and responsibilities of the Depositor and the Trustee created
hereby with respect to the Certificates (other than the obligation to make certain payments, any obligations
under Section 5.05 and the obligation to send certain notices to Certificateholders as hereinafter set forth)
shall terminate upon the later of (i) the making of the final payment on or other liquidation of the Underlying
Certificates and (ii) the payment to Certificateholders of all amounts required to be paid to them pursuant to
this Agreement; provided, however, that in no event shall the trust created hereby continue beyond the
expiration of twenty-one years from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late ambassador of the United States to the Court of St. James's, living on the date hereof.
(b) The Trustee shall, in accordance with Section 7.05, give a Notice of Final Distribution
to the Holders, the Depositor and the Rating Agencies as soon as practicable of the Distribution Date on which
the Trustee anticipates that the final distribution will be made on the Certificates, which notice shall:
(i) specify the Distribution Date on which the final distribution is anticipated to be
made to Holders;
(ii) specify the amount of any such final distribution, if known; and
(iii) state that the final distribution to the Holders will be made only upon presentment
and surrender of their Certificates at the office of the Trustee therein specified.
If the payment on the Certificates is not made on the anticipated Distribution Date for any reason, the Trustee
shall promptly mail notice thereof to each Holder, the Depositor and to the Rating Agencies.
(c) Upon presentment and surrender of Certificates by the Holders of such Certificates on the
Final Distribution Date, the Trustee shall distribute to such Certificateholders the amounts otherwise
distributable to them on such Distribution Date pursuant to Section 3.05(a). Any funds not distributed on a
Final Distribution Date because of the failure of any Certificateholders to tender their Certificates shall be
set aside and held in trust for the account of the appropriate non-tendering Certificateholders, and the Trust
Fund shall terminate. If any Certificates as to which Notice of Final Distribution has been given pursuant to
this Section 7.01 shall not have been surrendered for cancellation within six months after the time specified
in such notice, the Trustee shall mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to
receive, from such funds held, the final distribution with respect thereto. If within one year after the
second notice any Certificate shall not have been surrendered for cancellation, the Trustee shall directly or
through an agent, take reasonable steps to contact the remaining Certificateholders concerning surrender of
their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders
shall be paid out of the assets which remain held. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Trustee shall segregate all amounts
distributable to the Holders thereof and shall thereafter hold such amounts for the benefit of such Holders.
No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment thereof in accordance with this
Section 7.01.
ARTICLE VIII
TAX ADMINISTRATION
Section 8.01. Grantor Trust Administration.
(a) It is intended that the Trust be classified for federal income tax purposes as a
grantor trust under subpart E, part I of subchapter J of chapter 1 of the Code, rather than as an association
taxable as a corporation, a partnership or a taxable mortgage pool. The powers granted and obligations
undertaken in this Agreement shall be construed so as to further such intent. Under no circumstances shall the
Trustee or the Depositor have the power to vary the investments of the Certificateholders in their related assets
of the Trust in order to take advantage of variations in the market to improve their rate of return. The Trustee
shall be responsible for preparing, at its own expense, and filing in a timely manner, on behalf of and for the
Trust as a grantor trust under the Code, federal income tax and information returns and reports with the IRS and
income tax returns and information returns and reports of any other state or local taxing authority as are
required to be so filed, using a calendar year as the taxable year of the Trust on an accrual basis. The Trustee
shall furnish to each Certificateholder at the time required by law such information reports or returns as are
required by applicable federal, state or local law with respect to the Trust to enable holders of such
Certificates to prepare their tax returns and will furnish comparable information to the IRS and other taxing
authorities as and when required by law to do so.
(b) The Depositor intends to treat the Trust as a single Widely Held Fixed Investment Trust
that is a Widely Held Mortgage Trust. The Trustee will report as required under the Widely Held Fixed
Investment Trust Regulations to the extent such information as is reasonably necessary to enable the Trustee to
do so is provided to the Trustee on a timely basis. The Trustee is hereby directed pursuant to this Agreement
to assume that DTC is the only "middleman" (as such term is defined in the Widely Held Fixed Investment
Regulations) unless the Depositor notifies the Trustee in writing of the identities of other "middlemen" that
are Certificateholders. The Depositor agrees to notify the Trustee in writing of any such additional
"middlemen" of which it has knowledge. The Trustee will not be liable for any tax reporting penalties that may
arise under the Widely Held Fixed Investment Trust Regulations as a result of the Depositor incorrectly
determining the status of the Trust as a Widely Held Fixed Investment Trust.
(c) The Trustee, in its discretion, will report required Widely Held Fixed Investment Trust
information using either the cash or accrual method, except to the extent the Widely Held Fixed Investment
Trust Regulations specifically require a different method. The Trustee will be under no obligation to
determine whether any interest Holder in the Trust uses the cash or accrual method. The Trustee will make
available Widely Held Fixed Investment Trust information to Certificateholders annually. In addition, the
Trustee will not be responsible or liable for providing subsequently amended, revised or updated information to
any interest Holder in the Trust, unless requested by such Holder.
(d) The Trustee shall not be liable for failure to meet the reporting requirements of the
Widely Held Fixed Investment Trust Regulations nor for any penalties thereunder if such failure is due to: (i)
the lack of reasonably necessary information being provided to the Trustee, or (ii) incomplete, inaccurate or
untimely information being provided to the Trustee. Each owner of a Certificate, by acceptance of its interest
in such Certificate, will be deemed to have agreed to provide the Trustee with information regarding any sale
of such Certificate, including the price, amount of proceeds and date of sale. Absent receipt of such
information, and unless informed otherwise by the Depositor, the Trustee will assume there is no secondary
market trading of Widely Held Fixed Investment Trust interests in respect of the Trust.
(e) To the extent required by the Widely Held Fixed Investment Trust Regulations, the Trustee
will use reasonable efforts to publish on an appropriate website the CUSIPs for the Certificates. The Trustee
will make reasonable good faith efforts to keep the website accurate and updated to the extent CUSIPs have been
received. Absent the receipt of a CUSIP, the Trustee will use a reasonable identifier number in lieu of a
CUSIP. The Trustee will not be liable for investor reporting delays that result from the receipt of inaccurate
or untimely CUSIP information.
(f) The Trustee shall be entitled to additional reasonable compensation for changes in
reporting required in respect of the Widely Held Fixed Investment Trust Regulations that arise as a result of a
change in the Widely Held Fixed Investment Trust Regulations or a change in interpretation of the Widely Held
Fixed Investment Trust Regulations by the IRS or the Depositor or its counsel, if such change requires, in the
Trustee's reasonable discretion, a material increase in the Trustee's reporting obligations in respect of the
Trust.
(g) Unless the Trustee has received an Opinion of Counsel to the effect that the Trust will
not become a foreign trust in the absence of the following rule applying, the following rule shall apply: In
the case of any vote or other decision of the Certificateholders under this Agreement, each Certificateholder
shall certify whether it is a U.S. person or a foreign person for U.S. federal income tax purposes (and anyone
not certifying shall be treated as foreign) and the aggregate voting power of all Certificateholders that are
foreign persons shall be limited to a number of votes so that the effect of such limitation is to limit the
aggregate voting power of the foreign Certificateholders to one less than the number of votes needed to approve
or block the approval of any matter being voted on. (This rule will not apply if 100% of all Certificates are
held by foreign persons.) Thus, in the case of an amendment (or other matter) that requires 100% approval by
the Certificateholders, foreign investors shall have no votes. In the case of an amendment or other matter
that requires the approval of a majority of the Certificates, foreign Certificateholders will be treated as
having, in the aggregate, one less Certificate (or if voting is by principal or similar balance, one less
dollar of principal or similar balance) than the number of Certificates (dollars) held by U.S. persons. In the
case of a vote that requires 66-2/3% vote, foreign Certificateholders in the aggregate shall be considered to
own Certificates (principal) in the amount of one less than 1/2 of the number of Certificates (principal) held
by U.S. persons. The preceding rule may be amended by the Depositor and the Trustee without the consent of
any Certificateholder based on an Opinion of Counsel that any such change is necessary or helpful to preventing
the Trust from becoming treated as a foreign trust for U.S. federal income tax purposes.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.
(a) This Agreement may be amended from time to time by the Depositor and the Trustee, without
the prior consent of any Certificateholder:
(i) to cure any ambiguity;
(ii) to correct or supplement any provisions herein, which may be inconsistent with any
other provisions herein;
(iii) to make any other provisions with respect to matters or questions arising under this
Agreement which shall not be materially inconsistent with the existing provisions of this Agreement;
(iv) to make such modifications as may be permitted or required hereunder in connection
with a repurchase of the Underlying Certificates pursuant to Section 2.03(c) hereof; or
(v) to revise or correct any provisions to reflect the obligations of the parties to this
Agreement as they relate to Regulation AB;
provided that with respect to clause (iv), such amendment shall not, as evidenced by an Opinion of Counsel
delivered to the Trustee or a letter from each Rating Agency confirming that such amendment shall not result in a
downgrade or withdrawal of a rating on any of the Certificates (in each case, the expense of which shall be paid
for by the Depositor), adversely affect in any material respect the interests of any Certificateholder.
(b) If, at any point, the trustee for the Underlying Certificates is no longer Xxxxx Fargo
Bank, N.A., and the Trustee determines that it is impractical for distributions on the Certificates to be made
on the Underlying Certificate Distribution Date, the Trustee may, without the prior consent of any party to
this Agreement or any Certificateholder, amend this Agreement to change the Distribution Date from the
Underlying Certificate Distribution Date to one Business Day after the Underlying Certificate Distribution Date.
(c) This Agreement may also be amended from time to time by the Depositor and the Trustee
with the prior written consent of the Majority Certificateholders (or, to the extent any such amendment only
effects a particular Class of Certificates, the Holders of at least 50% of the aggregate Current Principal
Amount of Certificates of such Class) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments which are
required to be distributed on any Certificate without the consent of the Holder of such Certificate; or
(ii) modify the provisions of this Section 9.01 without the consent of the Holders of all
Certificates.
(d) Promptly after the execution of any such amendment the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder. It shall not be necessary for the
consent of Certificateholders under this Section 9.01 to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe. The Trustee shall also provide a copy of such
amendment or notice to the Rating Agencies.
(e) Prior to the execution of any amendment to this Agreement, the Trustee shall be entitled
to receive and rely upon an Opinion of Counsel addressed to the Trustee stating that the execution of such
amendment (i) is authorized or permitted by this Agreement, and (ii) will not result in the imposition of a tax
on the Trust or cause the Trust to fail to be classified as a grantor trust under subpart E, part 1 of
subchapter J of Chapter 1 of the Code.
(f) The Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Trustee's own respective rights, duties or immunities under this Agreement.
Section 9.02. Counterparts.
This Agreement may be executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall constitute but one and the same
instrument.
Section 9.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as expressly provided for
herein) or in any manner otherwise control the operation and management of the Trust, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms of the Certificates, be
construed so as to constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third party by reason of any action
taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of this Agreement to
institute any suit, action or proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Xxxxxx previously shall have given to the Trustee and the Depositor a written notice of default
hereunder, and of the continuance thereof, as hereinbefore provided, and unless also the Majority
Certificateholders shall have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity
as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 30 days after its receipt of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding. For the prosecution and enforcement of the rights
granted under this Section, each and every Certificateholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
Section 9.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance with the laws of the State
of New York applicable to agreements made and to be performed in said state (without reference to the conflicts
of law provisions of such state, other than Sections 5-1401 and 5-1402 of the New York General Obligations Laws,
which shall apply hereto), and the obligations, rights and remedies of the parties hereunder and the
Certificateholders shall be determined in accordance with such laws.
Section 9.05. Notices.
All communications provided for or permitted hereunder shall be in writing and shall be deemed
to have been duly given when delivered to: (a) in the case of the Depositor, Structured Asset Mortgage
Investments II Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other address as may hereafter be
furnished to the Trustee in writing by the Depositor; (b) in the case of the Trustee, to its Corporate Trust
Office; (c) in the case of S&P, Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and (d) in the case of Fitch, Fitch Ratings, Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, or such other address as may be furnished to the other parties hereto in writing.
Section 9.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or the
rights of the Holders thereof.
Section 9.07. Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties hereto, and all such provisions shall inure to the benefit of
the Certificateholders.
Section 9.08. Article and Section Headings.
The article and section headings herein are for convenience of reference only, and shall not
limit or otherwise affect the meaning hereof.
Section 9.09. Notices to Rating Agencies.
The Trustee shall notify the Rating Agencies at such time as it is otherwise required pursuant
to this Agreement to give notice of the occurrence of any of the events described in clauses (a), (b), or (e)
below or provide a copy to the Rating Agencies at such time as otherwise required to be delivered pursuant to
this Agreement of each of the statements described in clauses (c) and (e) below:
(a) a material change or amendment to this Agreement,
(b) the termination or appointment of a successor Trustee or a change in the majority
ownership of the Trustee,
(c) the monthly distribution statement required to be made available or delivered to the
Certificateholders pursuant to Section 3.06,
(d) Notice of Final Distribution required to be delivered pursuant to Section 7.01(b), and
(e) a change in the location of the Certificate Account.
The Depositor shall notify the Rating Agencies of any change in its identity.
Section 9.10. Acts of Certificateholders. (a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by Certificateholders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Certificateholders in
person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Trustee and, where it is
expressly required, to the Depositor. Proof of execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Agreement and conclusive in favor of the Trustee and the
Depositor, if made in the manner provided in this Section 9.10.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity
other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority. The fact and date of the execution of any such instrument or writing, or the
authority of the individual executing the same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) The ownership of Certificates (notwithstanding any notation of ownership or other writing
on such Certificates, except an endorsement in accordance with Section 4.02 made on a Certificate presented in
accordance with Section 4.04) shall be proved by the Certificate Register, and neither the Trustee, the
Depositor, nor any successor to either such party shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action of
the Holder of any Certificate shall bind every future Holder of the same Certificate and the Holder of every
Certificate issued upon the registration of transfer or exchange thereof, if applicable, or in lieu thereof
with respect to anything done, omitted or suffered to be done by the Trustee, the Depositor, or any successor
to either such party in reliance thereon, whether or not notation of such action is made upon such Certificates.
(e) In determining whether the Holders of the requisite Percentage Interest of Certificates
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Trustee or the Depositor or any Affiliate thereof shall be disregarded, except that, in
determining whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Certificates which the Trustee knows to be so owned shall be so
disregarded. Certificates which have been pledged in good faith to the Trustee or the Depositor or any
Affiliate thereof may be regarded as outstanding if the pledgor establishes to the satisfaction of the Trustee
the pledgor's right to act with respect to such Certificates and that the pledgor is not an Affiliate of the
Trustee or the Depositor, as the case may be.
IN WITNESS WHEREOF, the Depositor and the Trustee have caused their names to be signed hereto
by their respective duly authorized officers, all as of the day and year first above written.
STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC., as Depositor
By: /s/ Xxxxx XxxxxxxxxxxΒ Β Β Β Β Β Β Β
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Managing Director
XXXXX FARGO BANK, N.A., as Trustee
By: /s/ Xxxxxx X. XxxxxxΒ Β Β Β Β Β Β Β
Name: Xxxxxx X. Xxxxxx
Title: Vice President
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 16th day of January, 2008 before me, a notary public in and for said State, personally
appeared Xxxxx Xxxxxxxxxxx, known to me to be the Senior Managing Director of Structured Asset Mortgage
Investments II Inc., the corporation that executed the within instrument, and also known to me to be the person
who executed it on behalf of said corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.
/s/ Xxxxxx XxxxxxxxxxΒ Β Β Β Β Β Β Β
Notary Public
[Notarial Seal] Commission Expires: April 21, 2011
STATE OF MARYLAND )
ss.:
COUNTY OF XXXXXX )
On the 16th day of January, 2008 before me, a notary public in and for said State, personally
appeared Xxxxxx X. Xxxxxx, known to me to be a Vice President of Xxxxx Fargo Bank, N.A., the national banking
association that executed the within instrument, and also known to me to be the person who executed it on behalf
of said national banking association, and acknowledged to me that such national banking association executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.
/s/ Xxxxxx X. XxxxxxΒ Β Β Β Β Β Β Β
Notary Public
[Notarial Seal] Commission Expires: December 6, 2008
EXHIBIT A
FORM OF CLASS A CERTIFICATES
CLASS A-[ ] CERTIFICATE
[Insert for Class A-2 Certificates only] [THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT
TO THE CLASS A-1 CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).]
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL PAYMENTS
HEREON IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN
BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE
NAMED XXXXXX.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
WILL BE REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT WILL BE MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
Certificate No. [ ] Variable Pass-Through Rate
Class A-[ ]
Date of Pooling Agreement: Aggregate Initial Current Principal Amount of all
As of January 16, 2008 Certificates of this Class as of the Closing Date:
$[ ]
First Distribution Date: Initial Current Principal Amount of this Certificate as of
January 28, 2008 the Closing Date:
$[ ]
Trustee: CUSIP: [ ]
Xxxxx Fargo Bank, N.A.
Assumed Final Distribution Date:
May 25, 2047
BEAR XXXXXXX STRUCTURED PRODUCTS INC. TRUST,
SERIES 2008-R1
evidencing a Percentage Interest in the distributions allocable to the Class A-[ ]
Certificates with respect to a Trust whose assets consist primarily of the Underlying
Certificates sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust, and does not represent an
obligation of or interest in Structured Asset Mortgage Investments II Inc., the Trustee referred to below or any
of their affiliates or any other person. Neither this Certificate nor the Underlying Certificates are guaranteed
or insured by any governmental entity or by Structured Asset Mortgage Investments II Inc. or the Trustee or any
of their affiliates or any other person. None of Structured Asset Mortgage Investments II Inc., the Trustee or
any of their affiliates will have any obligation with respect to any certificate or other obligation secured by
or payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of this Certificate, which represents a
beneficial interest, in the Percentage Interest evidenced hereby, in a trust (the "Trust") the assets of which
consist primarily of the Underlying Certificates sold by Structured Asset Mortgage Investments II Inc. ("XXXX
XX"). The Underlying Certificates were sold by Bear, Xxxxxxx & Co. Inc. to XXXX XX. The Trust was created
pursuant to the Pooling Agreement, dated as of the Closing Date (the "Agreement"), between XXXX XX, as depositor
(the "Depositor") and Xxxxx Fargo, as trustee (the "Trustee"), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, capitalized terms used herein shall have the
meaning ascribed to them in the Agreement. This 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.
Interest on this Certificate will accrue during the month prior to the month in which a
Distribution Date (as hereinafter defined) occurs on the Current Principal Amount hereof at a per annum rate
equal to the Pass-Through Rate as described in and pursuant to the Agreement. The Trustee 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 "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day of the calendar month preceding
the month of such Distribution Date, an amount equal to the product of Percentage Interest evidenced by this
Certificate and the amount (of interest and principal, if any) required to be distributed to the Holders of
Certificates of the same Class as this Certificate.
Distributions on this Certificate will be made by the Trustee by check mailed to the address of
the Person entitled thereto as such name and address shall appear on the Certificate Register or, if such Person
so requests by notifying the Trustee in writing as specified in the Agreement by wire transfer. Notwithstanding
the above, the final distribution on this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Trustee for that purpose and designated in such notice. The Initial Current Principal
Amount of this Certificate is set forth above. The Current Principal Amount hereof will be reduced to the extent
of distributions allocable to principal hereon and any Realized Losses allocable hereto in accordance with the
terms of the Agreement.
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 formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it will look solely
to the Trust for payment hereunder and that neither the Depositor nor the Trustee are 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 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 Trustee and the rights of the
Certificateholders under the Agreement from time to time by the parties thereto with the consent of the Majority
Certificateholders (or in certain cases, Holders of Certificates of affected Classes evidencing such percentage
of the Percentage Interests thereof). 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 Certificate Registrar upon surrender of this Certificate for
registration of transfer at the offices or agencies maintained by the Trustee for such purposes, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Xxxxxx'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 Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. The Depositor, the 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 Trustee or
any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust created thereby (other than the
obligations to make payments to Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the making of the final payment on or other liquidation of the Underlying
Certificate, or (ii) the payment to Certificateholders of all amounts required to be paid to them pursuant to the
Agreement. In no event, however, will the Trust created by the Agreement continue beyond the expiration of 21
years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of the Trustee 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 Trustee has caused this Certificate to be duly executed.
Dated: January 16, 2008 XXXXX FARGO BANK, N.A.
Not in its individual capacity but solely as
Trustee
By:____________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-[ ] Certificates referred to in the within-mentioned Agreement.
XXXXX FARGO BANK, N.A.
Authorized signatory of Xxxxx Fargo Bank, N.A., not
in its individual capacity but solely as Trustee
By:____________________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and transfers unto
___________________________________________________________________________________________________________________
___________________________________________________________________________________________________________________
___________________________________________________________________________________________________________________
(please print or typewrite name and address including postal zip code of assignee)
a Percentage Interest equal to ___% evidenced by the within Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Certificate of a like Percentage Interest and Class to
the above named assignee and deliver such Certificate to the following address:
Dated:
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 ________________________________________________________________________________________________
to _______________________________________________________________________________________________________________.
Applicable statements should be mailed to ________________________________________________________________
__________________________________________________________________________________________________________________.
This information is provided by _________________________________________________________________________,
the Assignee named above, or _____________________________________________________________________________________,
as its agent. The Assignee's taxpayer identification number is ___________________________________________________
EXHIBIT B
FORM OF CERTIFICATION TO BE
PROVIDED BY THE TRUSTEE TO DEPOSITOR
Re: ________________________________ Trust 200_-____(the "Trust"), Certificates issued
pursuant to the Pooling Agreement, dated as of ________ , 200_ (the "Agreement" or "Trust
Agreement"), between Structured Asset Mortgage Investments II Inc., as Depositor and Xxxxx
Fargo Bank, N.A., as Trustee
The Trustee hereby certifies to the Depositor, and its officers, directors and affiliates, and
with the knowledge and intent that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal year [____] (the "Annual Report"), and all
reports on Form 10-D required to be filed in respect of period covered by the Annual Report (collectively with
the Annual Report, the "Reports"), of the Trust;
2. To my knowledge, (a) the Reports, taken as a whole, do not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the period covered by the Annual Report, and (b)
the Trustee's assessment of compliance and related attestation report referred to below, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made, not misleading with respect to the
period covered by such assessment of compliance and attestation report;
3. To my knowledge, the distribution information required to be provided by the Trustee under the Trust
Agreement for inclusion in the Reports is included in the Reports;
4. I am responsible for reviewing the activities performed by the Trustee under the Trust Agreement, and
based on my knowledge and the compliance review conducted in preparing the compliance statement of the Trustee
required by the Trust Agreement, and except as disclosed in the Reports, the Trustee has fulfilled its
obligations under the Trust Agreement in all material respects; and
5. The report on assessment of compliance with servicing criteria applicable to the Trustee for
asset-backed securities of the Trustee and each subcontractor utilized by the Trustee and related attestation
report on assessment of compliance with servicing criteria applicable to it required to be included in the Annual
Report in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been included
as an exhibit to the Annual Report. Any material instances of non-compliance are described in such report and
have been disclosed in the Annual Report.
In giving the certifications above, the Trustee has reasonably relied on information provided to it by
the following unaffiliated parties: [names of servicer(s), master servicer, subservicer, depositor, trustee,
custodian(s)]
Date:_______________________________________
____________________________________________
[Signature]
[Title]
EXHIBIT C
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
Definitions
Trustee - waterfall calculator
Trustee - fiduciary of the transaction
Note: The definitions above describe the essential function that the party performs, rather
than the party's title. So, for example, in a particular transaction, the trustee may perform the "paying agent"
and "securities administrator" functions, while in another transaction, the securities administrator may perform
these functions.
Where there are multiple checks for criteria the attesting party will identify in their
management assertion that they are attesting only to the portion of the distribution chain they are responsible
for in the related transaction agreements.
Key: X - obligation
______________________________________________________________________________________________________________________
Reg AB Reference Servicing Criteria Trustee
______________________________________________________________________________________________________________________
General Servicing Considerations
______________________________________________________________________________________________________________________
1122(d)(1)(i) Policies and procedures are instituted to monitor any X
performance or other triggers and events of default in
accordance with the transaction agreements.
______________________________________________________________________________________________________________________
1122(d)(1)(ii) If any material servicing activities are outsourced to third X
parties, policies and procedures are instituted to monitor the
third party's performance and compliance with such servicing
activities.
______________________________________________________________________________________________________________________
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a
back-up servicer for the Pool Assets are maintained.
______________________________________________________________________________________________________________________
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on
the party participating in the servicing function throughout the
reporting period in the amount of coverage required by and
otherwise in accordance with the terms of the transaction
agreements.
______________________________________________________________________________________________________________________
Cash Collection and Administration
______________________________________________________________________________________________________________________
1122(d)(2)(i) Payments on pool assets are deposited into the appropriate X
custodial bank accounts and related bank clearing accounts no
more than two business days following receipt, or such other
number of days specified in the transaction agreements.
______________________________________________________________________________________________________________________
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or
to an investor are made only by authorized personnel.
______________________________________________________________________________________________________________________
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash
flows or distributions, and any interest or other fees charged
for such advances, are made, reviewed and approved as specified
in the transaction agreements.
______________________________________________________________________________________________________________________
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve X
accounts or accounts established as a form of over
collateralization, are separately maintained (e.g., with respect
to commingling of cash) as set forth in the transaction
agreements.
______________________________________________________________________________________________________________________
1122(d)(2)(v) Each custodial account is maintained at a federally insured X
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally insured
depository institution" with respect to a foreign financial
institution means a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
______________________________________________________________________________________________________________________
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized X
access.
______________________________________________________________________________________________________________________
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all X
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date, or
such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than the
person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items are
resolved within 90 calendar days of their original
identification, or such other number of days specified in the
transaction agreements.
______________________________________________________________________________________________________________________
Investor Remittances and Reporting
______________________________________________________________________________________________________________________
1122(d)(3)(i) Reports to investors, including those to be filed with the X
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically,
such reports (A) are prepared in accordance with timeframes and
other terms set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms specified in
the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with
investors' or the trustee's records as to the total unpaid
principal balance and number of Pool Assets serviced by the
Servicer.
______________________________________________________________________________________________________________________
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in X
accordance with timeframes, distribution priority and other
terms set forth in the transaction agreements.
______________________________________________________________________________________________________________________
1122(d)(3)(iii) Disbursements made to an investor are posted within two business X
days to the Servicer's investor records, or such other number of
days specified in the transaction agreements.
______________________________________________________________________________________________________________________
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree X
with cancelled checks, or other form of payment, or custodial
bank statements.
______________________________________________________________________________________________________________________
Pool Asset Administration
______________________________________________________________________________________________________________________
1122(d)(4)(i) Collateral or security on pool assets is maintained as required
by the transaction agreements or related pool asset documents.
______________________________________________________________________________________________________________________
1122(d)(4)(ii) Pool assets and related documents are safeguarded as required by
the transaction agreements
______________________________________________________________________________________________________________________
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
______________________________________________________________________________________________________________________
1122(d)(4)(iv) Payments on pool assets, including any payoffs, made in
accordance with the related pool asset documents are posted to
the Servicer's obligor records maintained no more than two
business days after receipt, or such other number of days
specified in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in accordance
with the related pool asset documents.
______________________________________________________________________________________________________________________
1122(d)(4)(v) The Servicer's records regarding the pool assets agree with the
Servicer's records with respect to an obligor's unpaid principal
balance.
______________________________________________________________________________________________________________________
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's pool
assets (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance with
the transaction agreements and related pool asset documents.
______________________________________________________________________________________________________________________
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other
requirements established by the transaction agreements.
______________________________________________________________________________________________________________________
1122(d)(4)(viii) Records documenting collection efforts are maintained during the
period a pool asset is delinquent in accordance with the
transaction agreements. Such records are maintained on at least
a monthly basis, or such other period specified in the
transaction agreements, and describe the entity's activities in
monitoring delinquent pool assets including, for example, phone
calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
______________________________________________________________________________________________________________________
1122(d)(4)(ix) Adjustments to interest rates or rates of return for pool assets
with variable rates are computed based on the related pool asset
documents.
______________________________________________________________________________________________________________________
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor's pool asset documents, on at least an annual basis, or
such other period specified in the transaction agreements; (B)
interest on such funds is paid, or credited, to obligors in
accordance with applicable pool asset documents and state laws;
and (C) such funds are returned to the obligor within 30
calendar days of full repayment of the related pool assets, or
such other number of days specified in the transaction
agreements.
______________________________________________________________________________________________________________________
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance
payments) are made on or before the related penalty or
expiration dates, as indicated on the appropriate bills or
notices for such payments, provided that such support has been
received by the servicer at least 30 calendar days prior to
these dates, or such other number of days specified in the
transaction agreements.
______________________________________________________________________________________________________________________
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be
made on behalf of an obligor are paid from the Servicer's funds
and not charged to the obligor, unless the late payment was due
to the obligor's error or omission.
______________________________________________________________________________________________________________________
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two
business days to the obligor's records maintained by the
servicer, or such other number of days specified in the
transaction agreements.
______________________________________________________________________________________________________________________
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
______________________________________________________________________________________________________________________
1122(d)(4)(xv) Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
maintained as set forth in the transaction agreements. (In this
transaction there is no external enhancement or other support.)
______________________________________________________________________________________________________________________
EXHIBIT D
FORM 10-D, FORM 8-K AND FORM 10-K REPORTING RESPONSIBILITY
As to each item described below, the entity indicated as the Responsible Party shall be
primarily responsible for reporting the information to the party identified as responsible for preparing the
Securities Exchange Act Reports pursuant to Section 3.11 of the Pooling Agreement.
Under Item 1 of Form 10-D: a) items marked "Monthly Statement to Certificateholders" are
required to be included in the periodic Distribution Date statement under Section 3.06, provided by the Trustee
based on information received from the party providing such information; and b) items marked "Form 10-D report"
are required to be in the Form 10-D report but not the Monthly Statements to Certificateholders, provided by the
party indicated. Information under all other Items of Form 10-D is to be included in the Form 10-D report. All
such information and any other Items on Form 8-K and Form 10-D set forth in this Exhibit shall be sent to the
Trustee and the Depositor.
______________________________________________________________________________________________________________________
Form Item Description Trustee Depositor Sponsor
______________________________________________________________________________________________________________________
10-D Must be filed within 15 days of the distribution date for the
asset-backed securities.
______________________________________________________________________________________________________________________
1 Distribution and Pool
Performance Information
______________________________________________________________________________________________________________________
Item 1121(a) -
Distribution and Pool
Performance Information
______________________________________________________________________________________________________________________
(1) Any applicable X
record dates, accrual
dates, determination (Monthly Statements to
dates for calculating Certificateholders)
distributions and
actual distribution
dates for the
distribution period.
______________________________________________________________________________________________________________________
(2) Cash flows received X
and the sources thereof
for distributions, fees (Monthly Statements to
and expenses. Certificateholders)
______________________________________________________________________________________________________________________
(3) Calculated amounts X
and distribution of the
flow of funds for the (Monthly Statements to
period itemized by type Certificateholders)
and priority of
payment, including:
______________________________________________________________________________________________________________________
(i) Fees or
expenses accrued and
paid, with an
identification of the
general purpose of such
fees and the party
receiving such fees or
expenses.
______________________________________________________________________________________________________________________
(ii) Payments X
accrued or paid with
respect to enhancement (Monthly Statements to
or other support Certificateholders)
identified in Item 1114
of Regulation AB (such
as insurance premiums
or other enhancement
maintenance fees), with
an identification of
the general purpose of
such payments and the
party receiving such
payments.
______________________________________________________________________________________________________________________
(iii) X
Principal, interest and
other distributions (Monthly Statements to
accrued and paid on the Certificateholders)
asset-backed securities
by type and by class or
series and any
principal or interest
shortfalls or
carryovers.
______________________________________________________________________________________________________________________
(iv) The X
amount of excess cash
flow or excess spread (Monthly Statements to
and the disposition of Certificateholders)
excess cash flow.
______________________________________________________________________________________________________________________
(4) Beginning and X
ending principal
balances of the (Monthly Statements to
asset-backed securities. Certificateholders)
______________________________________________________________________________________________________________________
(5) Interest rates X
applicable to the pool
assets and the (Monthly Statements to
asset-backed Certificateholders)
securities, as
applicable. Consider
providing interest rate
information for pool
assets in appropriate
distributional groups
or incremental ranges.
______________________________________________________________________________________________________________________
(6) Beginning and X
ending balances of
transaction accounts, (Monthly Statements to
such as reserve Certificateholders)
accounts, and material
account activity during
the period.
______________________________________________________________________________________________________________________
(7) Any amounts drawn X
on any credit
enhancement or other (Monthly Statements to
support identified in Certificateholders)
Item 1114 of Regulation
AB, as applicable, and
the amount of coverage
remaining under any
such enhancement, if
known and applicable.
______________________________________________________________________________________________________________________
(8) Number and amount X Updated pool
of pool assets at the composition
beginning and ending of (Monthly Statements to information
each period, and Certificateholders) fields to be as
updated pool specified by
composition Depositor from
information, such as time to time
weighted average
coupon, weighted
average remaining term,
pool factors and
prepayment amounts.
______________________________________________________________________________________________________________________
(9) Delinquency and X
loss information for
the period. (Monthly Statements to
Certificateholders)
______________________________________________________________________________________________________________________
In addition, describe
any material changes to
the information
specified in Item
1100(b)(5) of
Regulation AB regarding
the pool assets.
(methodology)
______________________________________________________________________________________________________________________
(10) Information on the X
amount, terms and
general purpose of any (Monthly Statements to
advances made or Certificateholders)
reimbursed during the
period, including the
general use of funds
advanced and the
general source of funds
for reimbursements.
______________________________________________________________________________________________________________________
(11) Any material X
modifications,
extensions or waivers (Monthly Statements to
to pool asset terms, Certificateholders)
fees, penalties or
payments during the
distribution period or
that have cumulatively
become material over
time.
______________________________________________________________________________________________________________________
(12) Material breaches X X
of pool asset
representations or (if agreed upon by the
warranties or parties)
transaction covenants.
______________________________________________________________________________________________________________________
(13) Information on X
ratio, coverage or
other tests used for (Monthly Statements to
determining any early Certificateholders)
amortization,
liquidation or other
performance trigger and
whether the trigger was
met.
______________________________________________________________________________________________________________________
(14) Information X
regarding any new
issuance of
asset-backed securities
backed by the same
asset pool,
______________________________________________________________________________________________________________________
information X X
regarding any
pool asset
changes (other
than in
connection with a
pool asset
converting into
cash in
accordance with
its terms), such
as additions or
removals in
connection with a
prefunding or
revolving period
and pool asset
substitutions and
repurchases (and
purchase rates,
if applicable),
and cash flows
available for
future purchases,
such as the
balances of any
prefunding or
revolving
accounts, if
applicable.
______________________________________________________________________________________________________________________
Disclose any X X
material changes
in the
solicitation,
credit-granting,
underwriting,
origination,
acquisition or
pool selection
criteria or
procedures, as
applicable, used
to originate,
acquire or select
the new pool
assets.
______________________________________________________________________________________________________________________
Item 1121(b) - X
Pre-Funding or
Revolving Period
Information
Updated pool
information as required
under Item 1121(b).
______________________________________________________________________________________________________________________
2 Legal Proceedings
______________________________________________________________________________________________________________________
Item 1117 - Legal
proceedings pending
against the following
entities, or their
respective property,
that is material to
Certificateholders,
including proceedings
known to be
contemplated by
governmental
authorities:
______________________________________________________________________________________________________________________
Sponsor X
______________________________________________________________________________________________________________________
Depositor X
______________________________________________________________________________________________________________________
Trustee
______________________________________________________________________________________________________________________
Issuing entity X
______________________________________________________________________________________________________________________
Master Servicer, N/A
affiliated Servicer,
other Servicer
servicing 20% or more
of pool assets at time
of report, other
material servicers
______________________________________________________________________________________________________________________
Securities Administrator N/A
______________________________________________________________________________________________________________________
Originator of 20% or X
more of pool assets as
of the Cut-off Date
______________________________________________________________________________________________________________________
Custodian
______________________________________________________________________________________________________________________
3 Sales of Securities and
Use of Proceeds
______________________________________________________________________________________________________________________
Information from Item X
2(a) of Part II of Form
10-Q:
With respect to any
sale of securities by
the sponsor, depositor
or issuing entity, that
are backed by the same
asset pool or are
otherwise issued by the
issuing entity, whether
or not registered,
provide the sales and
use of proceeds
information in Item 701
of Regulation S-K.
Pricing information can
be omitted if
securities were not
registered.
______________________________________________________________________________________________________________________
4 Defaults Upon Senior
Securities
______________________________________________________________________________________________________________________
Information from Item 3 X
of Part II of Form 10-Q:
Report the occurrence
of any Event of Default
(after expiration of
any grace period and
provision of any
required notice)
______________________________________________________________________________________________________________________
5 Submission of Matters
to a Vote of Security
Holders
______________________________________________________________________________________________________________________
Information from Item 4 X
of Part II of Form 10-Q
______________________________________________________________________________________________________________________
6 Significant Obligors of
Pool Assets
______________________________________________________________________________________________________________________
Item 1112(b) - X
Significant Obligor
Financial Information*
______________________________________________________________________________________________________________________
*This information need
only be reported on the
Form 10-D for the
distribution period in
which updated
information is required
pursuant to the Item.
______________________________________________________________________________________________________________________
7 Significant Enhancement
Provider Information
______________________________________________________________________________________________________________________
Item 1114(b)(2) -
Credit Enhancement
Provider Financial
Information*
______________________________________________________________________________________________________________________
Determining X
applicable
disclosure
threshold
______________________________________________________________________________________________________________________
Requesting X
required
financial
information or
effecting
incorporation by
reference
______________________________________________________________________________________________________________________
Item 1115(b) -
Derivative Counterparty
Financial Information*
______________________________________________________________________________________________________________________
Determining
current maximum
probable exposure
______________________________________________________________________________________________________________________
Determining
current
significance
percentage
______________________________________________________________________________________________________________________
Requesting
required
financial
information or
effecting
incorporation by
reference
______________________________________________________________________________________________________________________
*This information need
only be reported on the
Form 10-D for the
distribution period in
which updated
information is required
pursuant to the Items.
______________________________________________________________________________________________________________________
8 Other Information
______________________________________________________________________________________________________________________
Disclose any
information required to
be reported on Form 8-K
during the period
covered by the Form
10-D but not reported
______________________________________________________________________________________________________________________
9 Exhibits
______________________________________________________________________________________________________________________
Distribution report X
______________________________________________________________________________________________________________________
Exhibits required by X
Item 601 of Regulation
S-K, such as material
agreements
______________________________________________________________________________________________________________________
8-K
______________________________________________________________________________________________________________________
1.01 Entry into a Material
Definitive Agreement
______________________________________________________________________________________________________________________
Disclosure is required X X X
regarding entry into or
amendment of any
definitive agreement
that is material to the
securitization, even if
depositor is not a
party.
Examples: servicing
agreement, custodial
agreement.
Note: disclosure not
required as to
definitive agreements
that are fully
disclosed in the
prospectus
______________________________________________________________________________________________________________________
1.02 Termination of a X X X
Material Definitive
Agreement
______________________________________________________________________________________________________________________
Disclosure is required
regarding termination
of any definitive
agreement that is
material to the
securitization (other
than expiration in
accordance with its
terms), even if
depositor is not a
party.
Examples: servicing
agreement, custodial
agreement.
______________________________________________________________________________________________________________________
1.03 Bankruptcy or
Receivership
______________________________________________________________________________________________________________________
Disclosure is required X X X
regarding the
bankruptcy or
receivership, if known,
with respect to any of
the following:
Sponsor, Depositor,
Master Servicer,
affiliated Servicer,
other Servicer
servicing 20% or more
of pool assets at time
of report, other
material servicers,
Certificate
Administrator, Trustee,
significant obligor,
credit enhancer (10% or
more), derivatives
counterparty, Custodian
______________________________________________________________________________________________________________________
2.04 Triggering Events that
Accelerate or Increase
a Direct Financial
Obligation or an
Obligation under an
Off-Balance Sheet
Arrangement
______________________________________________________________________________________________________________________
Includes an early X
amortization,
performance trigger or
other event, including
event of default, that
would materially alter
the payment
priority/distribution
of cash
flows/amortization
schedule.
Disclosure will be made
of events other than
waterfall triggers
which are disclosed in
the Monthly Statement
to Certificateholders
______________________________________________________________________________________________________________________
3.03 Material Modification
to Rights of Security
Holders
______________________________________________________________________________________________________________________
Disclosure is required X X
of any material
modification to
documents defining the
rights of
Certificateholders,
including the Pooling
and Servicing Agreement
______________________________________________________________________________________________________________________
5.03 Amendments to Articles
of Incorporation or
Bylaws; Change in
Fiscal Year
______________________________________________________________________________________________________________________
Disclosure is required X
of any amendment "to
the governing documents
of the issuing entity"
______________________________________________________________________________________________________________________
5.06 Change in Shell Company
Status
______________________________________________________________________________________________________________________
[Not applicable to ABS X
issuers]
______________________________________________________________________________________________________________________
6.01 ABS Informational and
Computational Material
______________________________________________________________________________________________________________________
[Not included in X
reports to be filed
under Section 3.11]
______________________________________________________________________________________________________________________
6.02 Change of Servicer or
Trustee
______________________________________________________________________________________________________________________
Requires disclosure of X X
any removal,
replacement,
substitution or
addition of any master
servicer, affiliated
servicer, other
servicer servicing 10%
or more of pool assets
at time of report,
other material
servicers, certificate
administrator or
trustee.
______________________________________________________________________________________________________________________
Reg AB disclosure about N/A
any new servicer is
also required.
______________________________________________________________________________________________________________________
Reg AB disclosure about X
any new trustee is also (to the extent of a new
required. trustee)
______________________________________________________________________________________________________________________
Reg AB disclosure about N/A
any new securities
administrator is also
required.
______________________________________________________________________________________________________________________
6.03 Change in Credit
Enhancement or Other
External Support In
this transaction there
is no external
enhancement or other
support.
______________________________________________________________________________________________________________________
Covers termination of X
any enhancement in
manner other than by
its terms, the addition
of an enhancement, or a
material change in the
enhancement provided.
Applies to external
credit enhancements as
well as derivatives.
______________________________________________________________________________________________________________________
Reg AB disclosure about X
any new enhancement
provider is also
required.
______________________________________________________________________________________________________________________
6.04 Failure to Make a X
Required Distribution
______________________________________________________________________________________________________________________
6.05 Securities Act Updating
Disclosure
______________________________________________________________________________________________________________________
If any material pool X
characteristic differs
by 5% or more at the
time of issuance of the
securities from the
description in the
final prospectus,
provide updated Reg AB
disclosure about the
actual asset pool.
______________________________________________________________________________________________________________________
If there are any new X
servicers or
originators required to
be disclosed under
Regulation AB as a
result of the
foregoing, provide the
information called for
in Items 1108 and 1110
respectively.
______________________________________________________________________________________________________________________
7.01 Regulation FD Disclosure X X
______________________________________________________________________________________________________________________
8.01 Other Events
______________________________________________________________________________________________________________________
Any event, with respect X
to which information is
not otherwise called
for in Form 8-K, that
the registrant deems of
importance to security
holders.
______________________________________________________________________________________________________________________
9.01 Financial Statements
and Exhibits
______________________________________________________________________________________________________________________
10-K
______________________________________________________________________________________________________________________
9B Other Information
______________________________________________________________________________________________________________________
Disclose any
information required to
be reported on Form 8-K
during the fourth
quarter covered by the
Form 10-K but not
reported
______________________________________________________________________________________________________________________
15 Exhibits and Financial
Statement Schedules
______________________________________________________________________________________________________________________
Item 1112(b) - X
Significant Obligor
Financial Information
______________________________________________________________________________________________________________________
Item 1114(b)(2) -
Credit Enhancement
Provider Financial
Information
______________________________________________________________________________________________________________________
Determining X
applicable
disclosure
threshold
______________________________________________________________________________________________________________________
Requesting X
required financial
information or
effecting
incorporation by
reference
______________________________________________________________________________________________________________________
Item 1115(b) -
Derivative Counterparty
Financial Information
______________________________________________________________________________________________________________________
Determining X
current maximum
probable exposure
______________________________________________________________________________________________________________________
Determining
current
significance
percentage
______________________________________________________________________________________________________________________
Requesting
required financial
information or
effecting
incorporation by
reference
______________________________________________________________________________________________________________________
Item 1117 - Legal
proceedings pending
against the following
entities, or their
respective property,
that is material to
Certificateholders,
including proceedings
known to be
contemplated by
governmental
authorities:
______________________________________________________________________________________________________________________
Sponsor X
______________________________________________________________________________________________________________________
Depositor X
______________________________________________________________________________________________________________________
Trustee
______________________________________________________________________________________________________________________
Issuing entity X
______________________________________________________________________________________________________________________
Master Servicer, N/A
affiliated Servicer,
other Servicer
servicing 20% or more
of pool assets at time
of report, other
material servicers
______________________________________________________________________________________________________________________
Securities Administrator N/A
______________________________________________________________________________________________________________________
Originator of 20% or X
more of pool assets as
of the Cut-off Date
______________________________________________________________________________________________________________________
Custodian
______________________________________________________________________________________________________________________
Item 1119 -
Affiliations and
relationships between
the following entities,
or their respective
affiliates, that are
material to
Certificateholders:
______________________________________________________________________________________________________________________
Sponsor X
______________________________________________________________________________________________________________________
Depositor X
______________________________________________________________________________________________________________________
Trustee
______________________________________________________________________________________________________________________
Master Servicer,
affiliated Servicer,
other Servicer
servicing 20% or more
of pool assets at time
of report, other
material servicers
______________________________________________________________________________________________________________________
Securities Administrator N/A
______________________________________________________________________________________________________________________
Originator X
______________________________________________________________________________________________________________________
Custodian
______________________________________________________________________________________________________________________
Credit Enhancer/Support X
Provider
______________________________________________________________________________________________________________________
Significant Obligor X
______________________________________________________________________________________________________________________
Item 1122 - Assessment X
of Compliance with
Servicing Criteria
______________________________________________________________________________________________________________________
Item 1123 - Servicer
Compliance Statement
______________________________________________________________________________________________________________________
EXHIBIT E
ADDITIONAL DISCLOSURE NOTIFICATION
Xxxxx Fargo Bank, N.A. as Trustee
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn: Corporate Trust Services - BSSP 2008-R1 - SEC REPORT PROCESSING
RE: **Additional Form [ ] Disclosure**Required
Ladies and Gentlemen:
In accordance with Section 3.11 of the Pooling Agreement, dated as of January 16, 2008, by and among
Structured Asset Mortgage Investments II Inc., as depositor, Xxxxx Fargo Bank, N.A., as trustee. The
Undersigned, as [ ], hereby notifies you that certain events have come to our attention that [will][may] need
to be disclosed on Form [ ].
Description of Additional Form [ ] Disclosure:
List of Any Attachments hereto to be included in the Additional Form [ ] Disclosure:
Any inquiries related to this notification should be directed to [ ], phone number: [ ]; email
address: [ ].
[NAME OF PARTY]
as [role]
By: _______________________
Name:
Title:
EXHIBIT F
FORM OF TRANSFEROR CERTIFICATE
Structured Asset Mortgage Investments II Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, N.A. as Trustee
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: Bear Xxxxxxx Structured Products Inc., Trust, Series 2008-R1 Certificates, Class A Certificates
Ladies and Gentlemen:
In connection with the sale by ___________ ("Seller") to ______________ (the "Purchaser") of a _____ Percentage
Interest in Bear Xxxxxxx Structured Products Inc., Trust, Series 2008-R1 Certificates, Class A-[_] (the
"Certificates"), issued pursuant to the Pooling Agreement (the "Pooling Agreement"), dated as of January 16, 2008,
between Structured Asset Mortgage Investments II Inc., as depositor (the "Depositor") and Xxxxx Fargo Bank, N.A.
as trustee (the "Trustee"). All terms used herein and not otherwise defined shall have the meanings set forth in
the Pooling Agreement. The Seller hereby certifies, represents and warrants to, and covenants with, the
Depositor and the Trustee 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, as amended (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 Pooling Agreement.
Very truly yours,
_________________________________________
Print Name of Transferor
By:______________________________________
Authorized Officer
SCHEDULE A
UNDERLYING CERTIFICATES
Initial Principal Current Principal
Full Name of Series Balance Balance Class % in Trust
____________________________________________________________________________________________________________________________________________
Bear Xxxxxxx ARM Trust, Mortgage Pass-Through Certificates,
Series 2007-3, Class III-A-1 Certificates
$87,049,000 $84,888,647 100.00000
