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AMENDED AND RESTATED OWNER TRUST AGREEMENT Dated as of May 11, 2005 First NLC Trust 2005-1 Callable Mortgage-Backed Notes, Series 2005-1

Mortgage Agreement

AMENDED AND RESTATED OWNER TRUST AGREEMENT Dated as of May 11, 2005 First NLC Trust 2005-1 Callable Mortgage-Backed Notes, Series 2005-1 | Document Parties: FBR SECURITIZATION, INC | JPMORGAN CHASE BANK, NATIONAL ASSOCIATION | WILMINGTON TRUST COMPANY You are currently viewing:
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FBR SECURITIZATION, INC | JPMORGAN CHASE BANK, NATIONAL ASSOCIATION | WILMINGTON TRUST COMPANY

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Title: AMENDED AND RESTATED OWNER TRUST AGREEMENT Dated as of May 11, 2005 First NLC Trust 2005-1 Callable Mortgage-Backed Notes, Series 2005-1
Governing Law: Delaware     Date: 5/25/2005

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Exhibit 99.2

Execution Copy


FBR SECURITIZATION, INC.,
as Depositor

WILMINGTON TRUST COMPANY,
as Owner Trustee

and

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Securities Administrator


AMENDED AND RESTATED OWNER TRUST AGREEMENT

Dated as of May 11, 2005


First NLC Trust 2005-1
Callable Mortgage-Backed Notes, Series 2005-1


 


 

Table of Contents

 

 

 

 

 

 

 

 

 

 

 

Page

 

ARTICLE I DEFINITIONS

 

 

1

 

 

 

 

 

 

 

 

SECTION 1.1

 

Definitions

 

 

1

 

SECTION 1.2

 

Other Definitional Provisions

 

 

3

 

 

 

 

 

 

 

 

ARTICLE II ORGANIZATION

 

 

4

 

 

 

 

 

 

 

 

SECTION 2.1

 

Name

 

 

4

 

SECTION 2.2

 

Office

 

 

4

 

SECTION 2.3

 

Purpose and Powers

 

 

5

 

SECTION 2.4

 

Appointment of the Owner Trustee

 

 

5

 

SECTION 2.5

 

Initial Capital Contribution; Declaration of Trust

 

 

6

 

SECTION 2.6

 

Issuance of Initial Ownership Certificate

 

 

6

 

SECTION 2.7

 

Liability of the Ownership Certificateholder

 

 

6

 

SECTION 2.8

 

Situs of Trust

 

 

6

 

SECTION 2.9

 

Title to Trust Property

 

 

7

 

SECTION 2.10

 

Representations and Warranties of the Depositor

 

 

7

 

SECTION 2.11

 

Tax Treatment

 

 

8

 

SECTION 2.12

 

Investment Company

 

 

9

 

 

 

 

 

 

 

 

ARTICLE III THE OWNERSHIP CERTIFICATE AND TRANSFERS OF INTERESTS

 

 

9

 

 

 

 

 

 

 

 

SECTION 3.1

 

The Ownership Certificate

 

 

9

 

SECTION 3.2

 

Execution, Authentication and Delivery of the Ownership Certificate

 

 

10

 

SECTION 3.3

 

Registration of and Limitations on Transfer and Exchange of the Ownership Certificate

 

 

10

 

SECTION 3.4

 

Lost, Stolen, Mutilated or Destroyed Ownership Certificate

 

 

12

 

SECTION 3.5

 

Persons Deemed Ownership Certificateholder

 

 

13

 

SECTION 3.6

 

Access to the Ownership Certificateholder’s Name and Address

 

 

13

 

SECTION 3.7

 

Maintenance of Office or Agency

 

 

13

 

SECTION 3.8

 

Certificate Paying Agency

 

 

13

 

SECTION 3.9

 

Initial Beneficiary

 

 

15

 

 

 

 

 

 

 

 

ARTICLE IV APPLICATION OF TRUST FUNDS; CERTAIN DUTIES

 

 

15

 

 

 

 

 

 

 

 

SECTION 4.1

 

Collection Account

 

 

15

 

SECTION 4.2

 

Application of Trust Funds

 

 

15

 

SECTION 4.3

 

Method of Payment

 

 

16

 

SECTION 4.4

 

Segregation of Moneys; No Interest

 

 

16

 

 

 

 

 

 

 

 

ARTICLE V AUTHORITY AND DUTIES OF THE OWNER TRUSTEE; ACTION BY CERTIFICATEHOLDERS

 

 

16

 

 

 

 

 

 

 

 

SECTION 5.1

 

General Authority

 

 

16

 

SECTION 5.2

 

General Duties

 

 

16

 

SECTION 5.3

 

Action Upon Instruction

 

 

17

 

SECTION 5.4

 

No Duties Except as Specified under Specified Documents or in Instructions

 

 

18

 

SECTION 5.5

 

Restrictions

 

 

18

 

SECTION 5.6

 

Negative Covenants

 

 

18

 

SECTION 5.7

 

Action by the Ownership Certificateholder with Respect to Bankruptcy

 

 

21

 

SECTION 5.8

 

Restrictions on the Owner Certificateholder’s Power

 

 

21

 

 

 

 

 

 

 

 

ARTICLE VI CONCERNING THE OWNER TRUSTEE

 

 

21

 

 

 

 

 

 

 

 

SECTION 6.1

 

Acceptance of Trusts and Duties

 

 

21

 

SECTION 6.2

 

Furnishing of Documents

 

 

22

 

SECTION 6.3

 

Books and Records

 

 

22

 

SECTION 6.4

 

Representations and Warranties

 

 

22

 

SECTION 6.5

 

Reliance; Advice of Counsel

 

 

24

 

ii


 

Table of Contents

 

 

 

 

 

 

 

 

 

 

 

Page

 

SECTION 6.6

 

Not Acting in Individual Capacity

 

 

25

 

SECTION 6.7

 

Owner Trustee Not Liable for Ownership Certificate or Trust Fund

 

 

25

 

SECTION 6.8

 

Owner Trustee May Own Ownership Certificate and Notes

 

 

26

 

SECTION 6.9

 

Licenses

 

 

26

 

SECTION 6.10

 

Doing Business in Other Jurisdictions

 

 

26

 

SECTION 6.11

 

Sarbanes-Oxley Act Certification

 

 

27

 

 

 

 

 

 

 

 

ARTICLE VII INDEMNIFICATION AND COMPENSATION

 

 

27

 

 

 

 

 

 

 

 

SECTION 7.1

 

Trust Expenses

 

 

27

 

SECTION 7.2

 

Indemnification

 

 

27

 

SECTION 7.3

 

Compensation

 

 

27

 

 

 

 

 

 

 

 

ARTICLE VIII TERMINATION OF AGREEMENT

 

 

28

 

 

 

 

 

 

 

 

SECTION 8.1

 

Termination of Agreement

 

 

28

 

 

 

 

 

 

 

 

ARTICLE IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES

 

 

29

 

 

 

 

 

 

 

 

SECTION 9.1

 

Eligibility Requirements for Owner Trustee

 

 

29

 

SECTION 9.2

 

Resignation or Removal of Owner Trustee

 

 

29

 

SECTION 9.3

 

Successor Owner Trustee

 

 

30

 

SECTION 9.4

 

Merger or Consolidation of Owner Trustee

 

 

30

 

SECTION 9.5

 

Appointment of Co-Trustee or Separate Trustee

 

 

30

 

 

 

 

 

 

 

 

ARTICLE X MISCELLANEOUS

 

 

32

 

 

 

 

 

 

 

 

SECTION 10.1

 

Supplements and Amendments

 

 

32

 

SECTION 10.2

 

No Legal Title to Trust Fund in Ownership Certificateholder

 

 

33

 

SECTION 10.3

 

Pledge of Trust Fund by Owner Trustee is Binding

 

 

33

 

SECTION 10.4

 

Limitations on Rights of Others

 

 

33

 

SECTION 10.5

 

Notices

 

 

34

 

SECTION 10.6

 

Severability

 

 

34

 

SECTION 10.7

 

Separate Counterparts

 

 

34

 

SECTION 10.8

 

Successors and Assigns

 

 

34

 

SECTION 10.9

 

Headings

 

 

34

 

SECTION 10.10

 

Governing Law

 

 

34

 

SECTION 10.11

 

No Petition

 

 

35

 

SECTION 10.12

 

No Recourse

 

 

35

 

 

 

 

 

 

 

 

ARTICLE XI TRUST OFFICERS

 

 

35

 

 

 

 

 

 

 

 

SECTION 11.1

 

Appointment of Trust Officers

 

 

35

 

SECTION 11.2

 

Trust Officers to Provide Information to the Owner Trustee

 

 

36

 

 

 

 

 

EXHIBITS

 

 

Exhibit A

 

Form of Ownership Certificate

Exhibit B

 

Form of Certificate of Trust

Exhibit C-1

 

Form of Rule 144A Investment Letter

Exhibit C-2

 

Form of Non-Rule 144A Investment Letter

Exhibit D

 

Form of Representation and Warranty Regarding Transferee’s Status

 

 

For Tax Matters

iii


 

     This AMENDED AND RESTATED OWNER TRUST AGREEMENT, dated as of May 11, 2005, is entered into by and among FBR SECURITIZATION, INC., a Delaware corporation, as depositor (the “Depositor” ), WILMINGTON TRUST COMPANY, a Delaware banking corporation, as owner trustee (the “Owner Trustee” ), and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a national banking association, as securities administrator (the “Securities Administrator” ).

     WHEREAS, pursuant to the Transfer and Servicing Agreement, the Depositor intends to sell, transfer and assign to a Delaware statutory trust created hereunder certain Mortgage Loans and related assets, which statutory trust would then pledge such assets under an indenture in order to secure the issuance of its callable mortgage-backed notes, the net proceeds of which would be applied toward the purchase of such assets.

     WHEREAS, the Depositor and the Owner Trustee entered into a Trust Agreement dated as of May 5, 2005 (the “Trust Agreement”) and filed with the Secretary of State of the State of Delaware a Certificate of Trust on May 5, 2005, creating First NLC Trust 2005-1.

     WHEREAS, the Depositor, the Owner Trustee and the Securities Administrator desire to enter into this Agreement in order to amend and restate in its entirety the Trust Agreement and to provide for the operation of the Trust upon the terms and conditions set forth herein.

     NOW THEREFORE, in consideration of the promises and mutual agreements herein contained, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS

     SECTION 1.1 Definitions .

     For all purposes of this Agreement, the following terms shall have the meanings set forth below.

      Actual Knowledge: With respect to the Owner Trustee, any Trust Officer within the Corporate Trust Office of the Owner Trustee responsible for administering the Trust hereunder, or under the Operative Agreements, who has actual knowledge of an action taken or an action not taken with regard to the Trust. Actions taken or actions not taken of which the Owner Trustee should have had knowledge, or has constructive knowledge, do not meet the definition of Actual Knowledge hereunder. With respect to the Securities Administrator, any Responsible Officer of the Securities Administrator who has actual knowledge of an action taken or an action not taken with regard to the Trust. Actions taken or actions not taken of which the Securities Administrator should have had knowledge, or has constructive knowledge, do not meet the definition of Actual Knowledge hereunder.

      Agreement or Amended and Restated Owner Trust Agreement: This Amended and Restated Owner Trust Agreement and any amendments or modifications hereof.

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      Authorized Trust Officer: With respect to the Trust, any Trust Officer of the Owner Trustee who is authorized to act for the Owner Trustee in matters relating to the Trust and who is identified on the list of Authorized Trust Officers delivered by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list may be modified or supplemented from time to time thereafter) and, so long as the Transfer and Servicing Agreement is in effect, a Responsible Officer of the Securities Administrator.

      Bank: Wilmington Trust Company in its individual capacity and not as Owner Trustee under this Agreement.

      Certificate of Trust: The Certificate of Trust to be filed by the Owner Trustee for the Trust pursuant to Section 3810(a) of the Delaware Trust Statute in the form of Exhibit B hereto.

      Certificate Paying Agent: Initially, the Securities Administrator, in its capacity as Certificate Paying Agent.

      Certificate Register: The register maintained by the Certificate Registrar in which the Certificate Registrar shall provide for the registration of the Ownership Certificates and of transfers and exchanges of such Ownership Certificates.

      Certificate Registrar: Initially, the Securities Administrator, in its capacity as Certificate Registrar.

      Corporate Trust Office : With respect to the Owner Trustee, the principal corporate trust office of the Owner Trustee at which, any particular time its corporate trust business shall be administered, which office at the date of execution of this Agreement is located at Rodney Square North, 1100 North Market Street, Wilmington, DE 19890, Attention: Corporate Trust Administration. With respect to the Securities Administrator, as defined in the Transfer and Servicing Agreement.

      Delaware Trust Statute: Chapter 38 of Title 12 of the Delaware Code, 12 Del.C. Section 3801 et seq. , as the same may be amended from time to time.

      Expenses: As defined in Section 7.2.

      Indenture: The Indenture dated as of April 1, 2005, among the Issuer, the Securities Administrator and the Indenture Trustee.

      Initial Ownership Certificateholder: FBR Trust Investments, LLC, in the case of the Ownership Certificate.

      Net Proceeds: The proceeds received by the Trust from time to time from the issuance and sale of its Notes and the Ownership Certificate, less the costs and expenses incurred in connection with the issuance and sale of the Notes and the Ownership Certificate.

      Outstanding Balance: As defined in the Indenture.

2


 

      Owner Trustee: Wilmington Trust Company, and any successor in interest, not in its individual capacity, but solely as owner trustee under the Agreement.

      Ownership Certificate: An equity certificate representing a 100% undivided beneficial interest in the Trust in substantially the form annexed hereto as part of Exhibit A .

      Ownership Certificateholder: The Person in whose name the Ownership Certificate is registered in the Certificate Register.

      Percentage Interest: With respect to any Ownership Certificate, the percentage set forth on the face thereof.

      Permitted Transferee: Means (i) a single entity that qualifies as (a) a REIT, (b) a Qualified REIT Subsidiary, or (c) an entity that is disregarded for federal income tax purposes that is wholly owned by a REIT or a Qualified REIT Subsidiary, (ii) a lender or repurchase agreement counterparty in a repurchase agreement or secured lending transaction that qualifies as a borrowing for federal income tax purposes, or (iii) any other entity, provided that an opinion of nationally recognized federal income tax counsel is obtained to the effect that, as of the date of a transfer to such entity, the Trust will not be treated as one or more taxable mortgage pools for federal income tax purposes.

      Prospective Ownership Certificateholder: Each prospective purchaser and any subsequent transferee of the Ownership Certificate.

      Qualified REIT Subsidiary: A direct or indirect 100% owned subsidiary of a REIT that satisfies the requirements of Section 856(i) of the Code.

      REIT: A real estate investment trust within the meaning of Sections 856 and 857 of the Code.

      Retained Notes: Those certain Classes, or portions of certain Classes, of Notes which, at the time of their issuance, are held by the beneficial owner of the Ownership Certificate or one of its affiliates.

      Secretary of State: The Secretary of State of the State of Delaware.

      Transfer and Servicing Agreement: The Transfer and Servicing Agreement, dated as of April 1, 2005, by and among the Trust, the Sellers, the Subservicer, the Depositor, the Securities Administrator, the Originator, the Master Servicer, and the Indenture Trustee, as such may be amended or supplemented from time to time.

      Trust Officer: Those Trust Officers of the Trust referred to in Article XI.

     SECTION 1.2 Other Definitional Provisions .

     Capitalized terms used herein and not defined herein shall have the same meanings assigned to them in the Transfer and Servicing Agreement or in the Indenture, as applicable.

3


 

     (a) All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.

     (b) As used in this Agreement and in any certificate or other document made or delivered pursuant hereto or thereto, accounting terms not defined in this Agreement or in any such certificate or other document, and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles. To the extent that the definitions of accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under generally accepted accounting principles, the definitions contained in this Agreement or in any such certificate or other document shall control.

     (c) The words “hereof,” “herein,” “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; Section and Exhibit references contained in this Agreement are references to Sections and Exhibits in or to this Agreement unless otherwise specified; and the term “including” shall mean “including without limitation.”

     (d) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as the feminine and neuter genders of such terms.

     (e) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein; references to a Person are also to its permitted successors and assigns.

ARTICLE II

ORGANIZATION

     SECTION 2.1 Name .

     The trust continued hereby shall be referred to as “First NLC Trust 2005-1” in which name the Owner Trustee and the Trust Officers may conduct the activities contemplated hereby, including the making and executing of contracts and other instruments on behalf of the Trust and sue and be sued.

     SECTION 2.2 Office .

     The principal office of the Trust shall be in care of the Owner Trustee, at its Corporate Trust Office.

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     SECTION 2.3 Purpose and Powers .

     The Trust shall have the power and authority to engage in any of the following activities:

     (a) to issue the Notes pursuant to the Indenture and the Ownership Certificate pursuant to this Agreement and to sell, transfer and exchange such Notes and Ownership Certificate;

     (b) with the proceeds of the sale of the Notes and the Ownership Certificate, to pay the organizational, start-up and transactional expenses of the Trust and to pay the balance of the Net Proceeds to the Depositor in consideration of the transfer to the Trust of the Mortgage Loans and related assets that constitute, in part, the Trust Fund;

     (c) to assign, grant, transfer, pledge, mortgage and convey the Trust Fund pursuant to the Indenture Trustee and to hold, manage and distribute to the Ownership Certificateholder pursuant to the terms of the Transfer and Servicing Agreement any portion of the Trust Fund released from the lien of, and remitted to the Trust, pursuant to the Indenture and the Transfer and Servicing Agreement;

     (d) to enter into and perform its obligations under the Cap Agreement and the Operative Agreements to which it is to be a party;

     (e) to engage in those activities, including entering into agreements, that are necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or connected therewith; and

     (f) subject to compliance with the Operative Agreements, to engage in such other activities as may be required in connection with conservation of the Trust Fund and the making of distributions and payments to the Ownership Certificateholder.

     The Trust is hereby authorized to engage in the foregoing activities. The Trust shall not engage in any activity other than in connection with the foregoing or other than as required or authorized by the terms of this Agreement or the Operative Agreements.

     SECTION 2.4 Appointment of the Owner Trustee .

     The Depositor hereby appoints the Bank to act as Owner Trustee of the Trust effective as of the date hereof to have all the rights, powers and duties set forth herein with respect to accomplishing the purposes of the Trust.

     The Owner Trustee is hereby authorized to execute this Agreement, the Indenture, the Transfer and Servicing Agreement and any other Operative Agreement on behalf of the Trust. The Owner Trustee is hereby authorized (but not obligated) to take all actions required or permitted to be taken by it in accordance with the terms of this Agreement.

5


 

     SECTION 2.5 Initial Capital Contribution; Declaration of Trust .

     (a) The Depositor hereby sells, assigns, transfers, conveys and sets over to the Trust, as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges receipt in trust from the Depositor, as of the Closing Date, of the foregoing contribution, which shall constitute the initial corpus of the Trust Fund. The Depositor shall pay organizational expenses of the Trust as they may arise or shall, upon the request of the Owner Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the Owner Trustee.

     (b) The Owner Trustee hereby declares that it will hold the Trust Fund in trust upon and subject to the conditions set forth herein for the use and benefit of the Certificateholders, subject to the obligations of the Trust under the Operative Agreements. It is the intention of the parties hereto that the Trust shall constitute a statutory trust under the Delaware Trust Statute and that this Agreement shall constitute the governing instrument of such statutory trust. No later than the date on which the prospectus supplement with respect to the Notes has been delivered, the Owner Trustee shall cause the filing of the Certificate of Trust with the Secretary of State. Except as otherwise provided in this Agreement, the rights of the Certificateholders will be those of beneficial owners of the Trust.

     SECTION 2.6 Issuance of Initial Ownership Certificate .

     Upon the formation of the Trust by the initial contribution by the Depositor pursuant to Section 2.5, the Owner Trustee will issue the Ownership Certificate to the Initial Ownership Certificateholder.

     SECTION 2.7 Liability of the Ownership Certificateholder .

     The Ownership Certificateholder shall be liable directly to and shall indemnify any injured party for all losses, claims, damages, liabilities and expenses of the Trust (including Expenses, to the extent not paid out of the Trust Fund); provided , however , that the Ownership Certificateholder shall not be liable for payments required to be made to or for any losses incurred by a Noteholder in the capacity of an investor in the Notes. In addition, any third party creditors of the Trust (other than in connection with the obligations described in the following sentence for which the Ownership Certificateholder shall be liable) shall be deemed third party beneficiaries of this paragraph. The Ownership Certificateholder shall be liable for any entity level taxes imposed on the Trust. The obligations of the Ownership Certificateholder under this paragraph shall be evidenced by the Ownership Certificate.

     SECTION 2.8 Situs of Trust .

     The Trust will be located in the State of Delaware. All bank accounts maintained by the Owner Trustee on behalf of the Trust shall be located in the States of Delaware, New York or the jurisdiction where the Securities Administrator maintains bank accounts with respect to collections on the Trust Fund. The only offices of the Trust will be as described in Section 2.2 hereof. The Trust shall not have any employees; provided , however , that nothing herein shall restrict or prohibit the Owner Trustee from having employees within or without the State of Delaware. Payments will be received by the Trust only in the States of Delaware, New York, the

6


 

jurisdiction in which the Securities Administrator maintains the Payment Account or such other jurisdiction designated by the Depositor, and payments will be made by the Trust only from the Payment Account or from Delaware, New York or such other jurisdiction designated by the Depositor.

     SECTION 2.9 Title to Trust Property .

     (a) Subject to the Indenture, title to all of the Trust Fund shall be vested at all times in the Trust as a separate legal entity until this Agreement terminates pursuant to Article VIII hereof; provided , however , that if the laws of any jurisdiction require that title to any part of the Trust Fund be vested in the trustee of the Trust, then title to that part of the Trust Fund shall be deemed to be vested in the Owner Trustee or any co-trustee or separate trustee, as the case may be, appointed pursuant to Article IX of this Agreement; provided, further, that title to any property may be transferred to the Indenture Trustee for purposes of securing the lien created under the Indenture.

     (b) The Ownership Certificateholder shall have beneficial but not legal title to any part of the Trust Fund. No transfer by operation of law or otherwise of any interest of the Ownership Certificateholder shall operate to terminate this Agreement or the trusts created hereunder or entitle any transferee to an accounting or to the transfer to it of any part of the Trust Fund.

     SECTION 2.10 Representations and Warranties of the Depositor .

     The Depositor hereby represents and warrants to the other parties hereto as of the Closing Date or such other date as is specified, that:

     (a) The Depositor has been duly organized and is validly existing as a corporation in good standing under the laws of Delaware, with full power and authority to own its assets and conduct its business as presently being conducted.

     (b) The Depositor has the full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Depositor and the consummation of the transactions contemplated hereby have been duly and validly authorized.

     (c) This Agreement constitutes a legal, valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors’ rights in general and except as such enforceability may be limited by general principles of equity (whether considered in a proceeding at law or in equity).

     (d) None of the execution and delivery of this Agreement, the transactions contemplated hereby or the fulfillment of or compliance with the terms and conditions of this Agreement will conflict with or result in a breach of any of the terms, certificate of formation or operating agreement or any legal restriction or any agreement or instrument to which the

7


 

Depositor is now a party or by which it is bound, or constitute a default or result in the violation of any law, rule, regulation, order, judgment or decree to which the Depositor or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.

     (e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Depositor of or compliance by the Depositor with this Agreement, or if required, such consent, approval, authorization or order has been obtained prior to the related Closing Date.

     (f) There is no action, suit, proceeding or investigation pending or to its knowledge threatened against the Depositor which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Depositor, or in any material impairment of the right or ability of the Depositor to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans or of any action taken or to be contemplated herein, or which would be likely to impair materially the ability of the Depositor to perform under the terms of this Agreement.

     (g) This Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust is not required to be registered as an “investment company” under the Investment Company Act of 1940, as amended.

     SECTION 2.11 Tax Treatment .

     (a) It is the intention of the parties hereto that, solely for federal, state and local income and franchise tax purposes the Trust shall be treated as a division of the owner of the Ownership Certificate that is ignored as an entity separate from the owner of the Ownership Certificate unless otherwise required by applicable law. The parties agree that, unless otherwise required by appropriate tax authorities, the Trust will file or cause to be filed (as described below) annual or other necessary returns, reports and other forms consistent with the characterization of the Trust, as it relates to the assets in the Trust and the Ownership Certificate, if applicable, as a division of the owner of the Ownership Certificate for such federal income tax purposes.

     (b) If applicable, the Securities Administrator shall (i) deliver (or cause to be delivered) to the owner of the Ownership Certificate, as may be required by the Code and applicable Treasury Regulations, such information within its possession as may be required to enable each owner of the Ownership Certificate to prepare its federal and state income tax returns, (ii) prepare or cause to be prepared, and file or cause to be filed, all United States federal tax returns relating to the Trust as directed in writing by the holder of the Ownership Certificate and to make such elections as may from time to time be required or appropriate under any applicable state or federal statute or rule or regulation thereunder so as to maintain the proper characterization of the Trust for United States federal income tax purposes, and (iii) prepare or cause to be prepared, and file or cause to be filed, deliver or cause to be delivered any United States federal annual or other necessary United States federal returns, reports or forms relating to the Notes and the Ownership Certificate (including information returns on IRS Form 1099). The

8


 

Depositor shall notify the Securities Administrator if any state or local law returns are required and the Securities Administrator shall prepare and file any such returns, if applicable. All tax returns in respect of the Trust shall be signed by the owner of the Ownership Certificate.

     (c) The Certificate Paying Agent shall comply with all requirements of the Code with respect to the withholding from any payments made by it with respect to the Ownership Certificate of any applicable withholding taxes imposed thereon and with respect to any applicable reporting requirements in connection therewith.

     (d) In the event that any withholding tax is imposed on the distributions (or allocations of income) to the Ownership Certificateholder, such tax shall reduce the amount otherwise distributable in accordance with this Section 2.11(d). The Certificate Paying Agent is hereby authorized and directed to retain or cause to be retained, from amounts otherwise distributable to the Ownership Certificateholder, sufficient funds for the payment of any tax that is legally owed by the Trust (but such authorization shall not prevent the Owner Trustee from contesting any such tax in appropriate proceedings, and withholding payment of such tax, if permitted by law, pending the outcome of such proceedings). The amount of any withholding tax imposed with respect to the Ownership Certificateholder shall be treated as cash distributed to such Ownership Certificateholder at the time it is withheld by the Certificate Paying Agent and remitted to the appropriate taxing authority. If there is a possibility that withholding tax is payable with respect to a distribution (such as a distribution to a non-U.S. Ownership Certificateholder), the Certificate Paying Agent may in its sole discretion withhold such amounts in accordance with this paragraph (d).

     (e) No party to this Agreement is authorized to make an election under Treasury Regulation Section 301.7701-3 to treat the Trust as a corporation for United States federal income tax purposes.

     SECTION 2.12 Investment Company .

     Neither the Depositor nor the Ownership Certificateholder shall take any action which would cause the Trust to become an “investment company” which would be required to register under the Investment Company Act of 1940, as amended.

ARTICLE III

THE OWNERSHIP CERTIFICATE AND TRANSFERS OF INTERESTS

     SECTION 3.1 The Ownership Certificate .

     The Ownership Certificate shall initially be issued as a single certificate in definitive, fully registered form and shall initially be registered in the name of the Initial Ownership Certificateholder. The Ownership Certificate shall not be issued in an authorized denomination of less than a 100% Percentage Interest in such Ownership Certificate. The Ownership Certificate shall be executed on behalf of the Trust by manual or facsimile signature of an Authorized Trust Officer of the Owner Trustee and authenticated in the manner provided in Section 3.2. The Ownership Certificate bearing the manual signatures of individuals who were,

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at the time when such signatures shall have been affixed, authorized to sign on behalf of the Trust, shall be validly issued and entitled to the benefit of this Agreement, notwithstanding that such individuals or any of them shall have ceased to be so authorized prior to the authentication and delivery of the Ownership Certificate or did not hold such offices at the date of authentication and delivery of the Ownership Certificate. A Person shall become the Ownership Certificateholder and shall be entitled to the rights and subject to the obligations of the Ownership Certificateholder hereunder upon registration of the Ownership Certificate in such Person’s name pursuant to Section 3.3.

     SECTION 3.2 Execution, Authentication and Delivery of the Ownership Certificate .

     Concurrently with the sale of the Mortgage Loans to the Trust pursuant to the Transfer and Servicing Agreement, the Owner Trustee shall cause the Ownership Certificate issued hereunder to be executed and authenticated on behalf of the Trust and delivered to or upon the written order of the Depositor, signed by its president or any vice president, without further corporate action by the Depositor. The Ownership Certificate shall not entitle the Ownership Certificateholder to any benefit under this Agreement nor shall it be valid for any purpose unless there shall appear on the Ownership Certificate a certificate of authentication substantially in the form set forth as part of Exhibit A hereto, executed by the Owner Trustee, by manual signature. Such authentication shall constitute conclusive evidence that the Ownership Certificate shall have been duly authenticated and delivered hereunder. The Ownership Certificate shall be dated the date of its authentication.

     SECTION 3.3 Registration of and Limitations on Transfer and Exchange of the Ownership Certificate .

     The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.7, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Ownership Certificate and of transfer and exchange of the Ownership Certificate as herein provided; provided , however , that the Certificate shall not be issued in any such transfer and exchange representing less than a 100% Percentage Interest in the Ownership Certificate, and provided , further , that the Ownership Certificate shall not be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.3. The Securities Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar.

     Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of the Ownership Certificate at the office or agency maintained pursuant to Section 3.7, the Owner Trustee shall execute, authenticate and deliver (or cause the Securities Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Ownership Certificate evidencing the Percentage Interest of the Ownership Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar.

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     Every time the Ownership Certificate is presented or surrendered for registration of transfer or exchange, it shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by the Ownership Certificateholder or such Ownership Certificateholder’s attorney duly authorized in writing. Each time the Ownership Certificate is surrendered for registration of transfer or exchange, it shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice.

     No service charge shall be made for any registration of transfer or exchange of the Ownership Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of the Ownership Certificate or any other expense arising as a result of any registration of transfer or exchange.

     The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register the transfer or exchange of the Ownership Certificate for a period of 15 days preceding the due date for any payment with respect to the Ownership Certificate.

     No transfer of the Ownership Certificate shall be made unless such transfer is exempt from or satisfies the registration requirements of the Securities Act and any applicable state securities laws. Except in the case of an initial transfer to the Initial Ownership Certificateholder, in the event of any such transfer, the Certificate Registrar or the Depositor shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit C-1 ) certifying to the Trust, the Owner Trustee, the Securities Administrator, the Certificate Registrar and the Depositor that such transferee is a “qualified institutional buyer” under Rule 144A under the Securities Act or (ii) an investment letter (in the form attached hereto as Exhibit C-2 ) certifying to the Trust, the Owner Trustee, the Securities Administrator, the Certificate Registrar and the Depositor that such transferee is an “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Securities Administrator, the Certificate Registrar or the Depositor. If the Ownership Certificateholder desires to effect the transfer of the Ownership Certificate, it shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Securities Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.

     Except in the case of an initial transfer to the Initial Ownership Certificateholder, no transfer of a Ownership Certificate shall be made unless the Certificate Registrar shall have received a representation (in the form attached hereto as Exhibit C-1 or Exhibit C-2 ) from the proposed transferee of such Ownership Certificate to the effect that such proposed transferee is not an employee benefit plan (a “ Plan ”) subject to the fiduciary responsibility provisions of ERISA, or Section 4975 of the Code, or a Person acting on behalf of any such plan or using the assets of any such plan, which representation shall not be at the expense of the Trust, the Owner Trustee, the Securities Administrator, the Certificate Registrar or the Depositor. In addition, any Retained Notes will be subject to the same ERISA restrictions and consequences discussed above

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applicable to the Ownership Certificate unless either (a) the Retained Notes are sold to a party that is a taxable REIT subsidiary or is not affiliated with the owner of the Ownership Certificate and at the time of such sale: (i) the owner of the Ownership Certificate is a Permitted Transferee; (ii) no modifications have been made to the transaction documents; (iii) the rating of the Retained Notes as of the date of such sale is not lower than the rating of such Retained Note as of the closing date; and (iv) no adverse changes have been made to (or that would adversely affect the application of) the legal authorities applicable to the closing date tax opinion regarding the status of the Notes as debt or (b) the holder of the Retained Notes otherwise receives a “will be debt” tax opinion from a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization.

     Prior to and as a condition of the registration of any transfer, sale or other disposition of the Ownership Certificate, each Prospective Ownership Certificateholder shall represent and warrant in writing, in substantially the form set forth in Exhibit D hereto, to the Owner Trustee, the Securities Administrator and the Certificate Registrar and any of their respective successors that it is a Permitted Transferee. In addition, any Retained Notes will be subject to the same restrictions and consequences discussed in the preceding sentence applicable to the Ownership Certificate unless either (a) the Retained Notes are sold to a party that is a taxable REIT subsidiary or is not affiliated with the owner of the Ownership Certificate and at the time of such sale: (i) the owner of the Ownership Certificate is a Permitted Transferee; (ii) no modifications have been made to the transaction documents; (iii) the rating of the Retained Notes as of the date of such sale is not lower than the rating of such Retained Note as of the closing date; and (iv) no adverse changes have been made to (or that would adversely affect the application of) the legal authorities applicable to the closing date tax opinion regarding the status of the Notes as debt or (b) the holder of the Retained Notes otherwise receives a “will be debt” tax opinion from a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization.

     The Owner Trustee shall cause the Ownership Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of the Ownership Certificate is subject to certain restrictions and referring prospective purchasers of the Ownership Certificate to this Section 3.3 with respect to such restrictions.

     SECTION 3.4 Lost, Stolen, Mutilated or Destroyed Ownership Certificate .

     If (a) a mutilated Ownership Certificate is surrendered to the Certificate Registrar, or (b) the Certificate Registrar receives evidence to its satisfaction that the Ownership Certificate has been destroyed, lost or stolen, and there is delivered to the Certificate Registrar proof of ownership satisfactory to the Certificate Registrar, together with such security or indemnity as required by the Certificate Registrar and the Owner Trustee to save each of them harmless, then in the absence of notice to the Certificate Registrar or the Owner Trustee that the Ownership Certificate has been acquired by a protected purchaser, the Owner Trustee shall execute on behalf of the Trust, and the Owner Trustee or the Certificate Registrar shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Ownership Certificate, a new Ownership Certificate of like tenor and Percentage Interest. In connection with the issuance of any new Ownership Certificate under this Section 3.4, the Owner Trustee or the Certificate Registrar may require the payment of a sum sufficient to cover any expenses of

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the Owner Trustee or the Certificate Registrar (including any fees and expenses of counsel) and any tax or other governmental charge that may be imposed in connection therewith. Any duplicate Ownership Certificate issued pursuant to this Section 3.4 shall constitute conclusive evidence of ownership in the Trust, as if originally issued, whether or not the lost, stolen or destroyed Ownership Certificate shall be found at any time.

     SECTION 3.5 Persons Deemed Ownership Certificateholder .

     Prior to due presentation of the Ownership Certificate for registration of transfer, the Owner Trustee, the Certificate Registrar, the Securities Administrator or any Certificate Paying Agent may treat the Ownership Certificateholder as the owner of such Ownership Certificate for the purpose of receiving distributions pursuant to Section 4.2 and for all other purposes whatsoever, and none of the Trust, the Owner Trustee, the Certificate Registrar, the Securities Administrator or any Certificate Paying Agent shall be bound by any notice to the contrary.

     SECTION 3.6 Access to the Ownership Certificateholder’s Name and Address .

     The Certificate Registrar shall furnish or cause to be furnished to the Depositor or the Owner Trustee, within 15 days after receipt by the Certificate Registrar of a written request therefor from the Depositor or the Owner Trustee, in such form as the Depositor or the Owner Trustee, as the case may be, may reasonably require, the name and address of the Ownership Certificateholder as of the most recent Record Date. The Ownership Certificateholder, by receiving and holding the Ownership Certificate, shall be deemed to have agreed not to hold any of the Trust, the Depositor, the Certificate Registrar, the Securities Administrator and the Owner Trustee accountable or liable for damages by reason of the disclosure of its name and address, regardless of the source from which such information was derived.

     SECTION 3.7 Maintenance of Office or Agency .

     The Certificate Registrar on behalf of the Trust, shall maintain an office or offices or agency or agencies where the Ownership Certificate may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Owner Trustee in respect of the Ownership Certificate and the Operative Agreements may be served. The Certificate Registrar shall give the Owner Trustee prompt notice, in writing, of any such notice or demand. The Certificate Registrar initially designates the applicable Corporate Trust Office of the Securities Administrator as its office for such purposes. The Certificate Registrar shall give prompt written notice to the Depositor, the Owner Trustee, the Securities Administrator and the Ownership Certificateholder of any change in the location of the Certificate Register or any such office or agency.

     SECTION 3.8 Certificate Paying Agent .

     (a) The Owner Trustee may appoint, and hereby appoints, the Securities Administrator as Certificate Paying Agent under this Agreement. The Certificate Paying Agent shall make distributions to each Certificateholder from the Collection Account pursuant to Section 4.1 hereof and Sections 7.4 and 7.5 of the Transfer and Servicing Agreement and, upon request, shall report the amounts of such distributions to the Owner Trustee. The Certificate

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Paying Agent shall have the revocable power to withdraw funds from the Collection Account for the purpose of making the distributions referred to above. The Securities Administrator hereby accepts such appointment and further agrees that it will be bound by the provisions of this Agreement and the Transfer and Servicing Agreement relating to the Certificate Paying Agent and shall:

     (i) hold all sums held by it for the payment of amounts due with respect to the Certificates in trust for the benefit of the Person entitled thereto until such sums shall be paid to such Person or otherwise disposed of as herein provided;

     (ii) give the Owner Trustee notice of any default by the Trust of which a Responsible Officer of the Securities Administrator has Actual Knowledge in the making of any payment required to be made with respect to the Ownership Certificate;

     (iii) at any time during the continuance of any such default, upon the written request of the Owner Trustee forthwith pay to the Owner Trustee on behalf of the Trust all sums so held in Trust by such Certificate Paying Agent;

     (iv) immediately resign as Certificate Paying Agent and forthwith pay to the Owner Trustee on behalf of the Trust all sums held by it in trust for the payment of the Ownership Certificate if at any time it ceases to meet the standards under this Section 3.8 required to be met by the Certificate Paying Agent at the time of its appointment; and

     (v) not institute bankruptcy proceedings against the Trust in connection with this Agreement.

     (b) In the event that the Securities Administrator shall no longer be the Certificate Paying Agent hereunder, the Owner Trustee, with the consent of the Depositor, shall appoint a successor to act as Certificate Paying Agent (which shall be a bank or trust company). The Owner Trustee shall cause such successor Certificate Paying Agent or any additional Certificate Paying Agent appointed by the Owner Trustee to execute and deliver to the Owner Trustee an instrument in which such successor Certificate Paying Agent or additional Certificate Paying Agent shall agree with the Owner Trustee that as Certificate Paying Agent, such successor Certificate Paying Agent or additional Certificate Paying Agent will hold all sums, if any, held by it for payment in trust for the benefit of the Ownership Certificateholder entitled thereto until such sums shall be paid to the Ownership Certificateholder. The Certificate Paying Agent shall return all unclaimed funds to the Owner Trustee, and upon removal of a Certificate Paying Agent, such Certificate Paying Agent shall also return all funds in its possession to the Owner Trustee. The provisions of Sections 5.3, 5.4, 6.1, 6.5, 6.7, 6.8, 6.10, 6.11, 7.1 and 7.2 shall apply to the Securities Administrator also in its role as Certificate Paying Agent and Certificate Registrar for so long as the Securities Administrator shall act as Certificate Paying Agent and, to the extent applicable, to any other Certificate Paying Agent or Certificate Registrar appointed hereunder. Any reference in this Agreement to the Certificate Paying Agent shall include any co-paying agent unless the context requires otherwise.

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     SECTION 3.9 Initial Beneficiary .

     Upon the formation of the Trust by the contribution by the Depositor pursuant to Section 2.5 and until the issuance of the Ownership Certificate, the Depositor shall be the sole beneficiary of the Trust.

ARTICLE IV

APPLICATION OF TRUST FUNDS; CERTAIN DUTIES

     SECTION 4.1 Collection Account .

     The Collection Account shall be subject to and established and maintained in accordance with the applicable provisions of the Transfer and Servicing Agreement and the Indenture, including, without limitation, the provisions of Sections 7.4 and 7.5 of the Transfer and Servicing Agreement regarding distributions from the Collection Account.

     SECTION 4.2 Application of Trust Funds .

     (a) On each Payment Date, the Owner Trustee shall direct the Certificate Paying Agent to distribute to the Ownership Certificateholder, from amounts on deposit in the Collection Account, the distributions as provided in Sections 7.4 and 7.5 of the Transfer and Servicing Agreement with respect to such Payment Date. The Owner Trustee hereby directs the Certificate Paying Agent to distribute on each Payment Date to the Ownership Certificateholder amounts on deposit in the Collection Account in accordance with Sections 7.4 and 7.5 of the Transfer and Servicing Agreement and the Certificate Paying Agent hereby acknowledges such direction.

     (b) All payments to be made under this Agreement by the Certificate Paying Agent shall be made only from the income and proceeds, including Net Proceeds, of the Trust Fund and only to the extent that the Certificate Paying Agent has received such income or proceeds. The Bank shall not be liable to the Ownership Certificateholder, the Indenture Trustee or the Securities Administrator for any amounts payable pursuant to this Section 4.2 except to the extent that non-payment is due to the Owner Trustee’s acts or omissions amounting to willful misconduct or gross negligence.

     (c) Distributions to the Ownership Certificateholder shall be subordinated to the creditors of the Trust, including, without limitation, the Noteholders.

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     SECTION 4.3 Method of Payment .

     Distributions required to be made to the Ownership Certificateholder on any Payment Date as provided in Section 4.2 shall be made to the Person who was the Ownership Certificateholder on the preceding Record Date either by wire transfer, in immediately available funds, to the account of such Ownership Certificateholder at a bank or other entity having appropriate facilities therefor, if such Ownership Certificateholder shall have provided to the Certificate Registrar appropriate written instructions at least five Business Days prior to such Payment Date or, if not, by check mailed to such Ownership Certificateholder at the respective address of such Ownership Certificateholder appearing in the Certificate Register.

     SECTION 4.4 Segregation of Moneys; No Interest .

     Moneys received by or on behalf of the Owner Trustee hereunder will be segregated except to the extent required otherwise by law or the provisions of the Transfer and Servicing Agreement. The Owner Trustee shall not be liable for payment of any interest in respect of such moneys.

ARTICLE V

AUTHORITY AND DUTIES OF THE OWNER TRUSTEE;
ACTION BY CERTIFICATEHOLDERS

     SECTION 5.1 General Authority .

     The Owner Trustee is authorized and directed to execute and deliver the Notes, the Ownership Certificate, the other Operative Agreements to which the Trust is to be a party, each certificate or other document attached as an exhibit to or contemplated by the Operative Agreements to which the Trust is to be a party and any amendment or other agreement or instrument described herein, all as approved by the Depositor, as evidenced conclusively by the Owner Trustee’s execution thereof, and, on behalf of the Trust, to direct the Securities Administrator to authenticate the Notes. In addition to the foregoing, the Owner Trustee is authorized, but shall not be obligated, to take all actions required of the Trust pursuant to the Operative Agreements.

     SECTION 5.2 General Duties .

     (a) It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all of its responsibilities pursuant to the terms of this Agreement and the other Operative Agreements to which it is a party and to administer the Trust in the interest of the Ownership Certificateholder, subject to the Operative Agreements and in accordance with the provisions of this Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the Operative Agreements to the extent the Securities Administrator has agreed in the Transfer and Servicing Agreement or this Agreement, respectively, to perform any act or to discharge any duty of the Owner Trustee or the Trust hereunder or under any Operative Agreement, and the Owner Trustee shall not be held liable for the default or failure of the Securities Administrator to carry out its obligations under

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this Agreement or the Transfer and Servicing Agreement or any other Operative Agreement, respectively.

     (b) It shall be the duty of the Depositor under the Transfer and Servicing Agreement to obtain and preserve the Trust’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Trust Fund and each other instrument and agreement included in the Trust Fund. It shall be the duty of the Owner Trustee to cooperate with the Depositor with respect to such matters.

     SECTION 5.3 Action Upon Instruction .

     (a) Subject to Article V and in accordance with the terms of the Operative Agreements, the Ownership Certificateholder may by written instruction direct the Owner Trustee in the management of the Trust, but only to the extent consistent with the limited purpose of the Trust. Such direction may be exercised at any time by written instruction of the Ownership Certificateholder pursuant to this Article V.

     (b) Notw


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