STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.,
as DEPOSITOR,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as PAYING AGENT and CERTIFICATE REGISTRAR
and
JPMORGAN CHASE BANK,
as GRANTOR TRUSTEE
GRANTOR TRUST AGREEMENT
Dated as of September 30, 2004
Structured Asset Mortgage Investments II Grantor Trust
Mortgage Pass-Through Certificates
Series 2004-AR6
TABLE OF CONTENTS
Page
ARTICLE I Definitions...................................................................................1
ARTICLE II Conveyance of Underlying Certificates; Original Issuance of Certificates.....................7
Section 2.01 CONVEYANCE OF UNDERLYING CERTIFICATES TO GRANTOR TRUSTEE....................7
Section 2.02 ACCEPTANCE BY GRANTOR TRUSTEE...............................................7
Section 2.03 SWAP AGREEMENT..............................................................8
Section 2.04 REPRESENTATIONS AND WARRANTIES CONCERNING THE DEPOSITOR.....................8
ARTICLE III Accounts...................................................................................10
Section 3.01 DISTRIBUTION ACCOUNT.......................................................10
Section 3.02 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE DISTRIBUTION ACCOUNT..........10
ARTICLE IV Certificates................................................................................11
Section 4.01 CERTIFICATES...............................................................11
Section 4.02 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES......................12
Section 4.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES..........................14
Section 4.04 PERSONS DEEMED OWNERS......................................................14
Section 4.05 ERISA RESTRICTIONS.........................................................14
Section 4.06 APPOINTMENT OF CERTIFICATE REGISTRAR AND PAYING AGENT......................15
ARTICLE V Payments to Certificateholders...............................................................16
Section 5.01 DISTRIBUTIONS ON THE CERTIFICATES..........................................16
Section 5.02 ALLOCATION OF LOSSES.......................................................16
Section 5.03 PAYMENTS...................................................................16
Section 5.04 STATEMENTS TO CERTIFICATEHOLDERS...........................................17
ARTICLE VI Indemnification.............................................................................19
Section 6.01 INDEMNIFICATION OF THE GRANTOR TRUSTEE, THE PAYING AGENT AND THE
CERTIFICATE REGISTRAR......................................................19
ARTICLE VII Concerning the Grantor Trustee, the Paying Agent and the Certificate Registrar.............20
Section 7.01 DUTIES OF THE GRANTOR TRUSTEE, THE PAYING AGENT AND THE CERTIFICATE
REGISTRAR..................................................................20
i
Page
Section 7.02 CERTAIN MATTERS AFFECTING THE GRANTOR TRUSTEE, THE PAYING AGENT AND
THE CERTIFICATE REGISTRAR..................................................21
Section 7.03 GRANTOR TRUSTEE, PAYING AGENT AND CERTIFICATE REGISTRAR NOT LIABLE
FOR CERTIFICATES OR MORTGAGE LOANS.........................................23
Section 7.04 GRANTOR TRUSTEE, PAYING AGENT AND CERTIFICATE REGISTRAR MAY OWN
CERTIFICATES...............................................................23
Section 7.05 EXPENSES...................................................................23
Section 7.06 ELIGIBILITY REQUIREMENTS FOR GRANTOR TRUSTEE, PAYING AGENT AND
CERTIFICATE REGISTRAR......................................................23
Section 7.07 INSURANCE..................................................................24
Section 7.08 RESIGNATION AND REMOVAL OF THE GRANTOR TRUSTEE, THE PAYING AGENT OR
THE CERTIFICATE REGISTRAR..................................................24
Section 7.09 SUCCESSOR GRANTOR TRUSTEE, SUCCESSOR PAYING AGENT AND SUCCESSOR
CERTIFICATE REGISTRAR......................................................25
Section 7.10 MERGER OR CONSOLIDATION OF GRANTOR TRUSTEE, PAYING AGENT OR
CERTIFICATE REGISTRAR......................................................26
Section 7.11 APPOINTMENT OF CO-GRANTOR TRUSTEE OR SEPARATE GRANTOR TRUSTEE..............26
Section 7.12 FEDERAL INFORMATION RETURNS AND REPORTS TO CERTIFICATEHOLDERS;
GRANTOR TRUST ADMINISTRATION...............................................27
ARTICLE VIII Termination...............................................................................29
Section 8.01 TERMINATION UPON REPURCHASE BY THE DEPOSITOR OR ITS DESIGNEE OR
LIQUIDATION OF THE MORTGAGE LOANS..........................................29
ARTICLE IX Miscellaneous Provisions....................................................................30
Section 9.01 INTENT OF PARTIES..........................................................30
Section 9.02 ACTION UNDER UNDERLYING DOCUMENTS..........................................30
Section 9.03 AMENDMENT..................................................................30
Section 9.04 RECORDATION OF AGREEMENT...................................................31
Section 9.05 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.................................31
Section 9.06 ACTS OF CERTIFICATEHOLDERS.................................................32
Section 9.07 GOVERNING LAW..............................................................33
Section 9.08 NOTICES....................................................................33
Section 9.09 SEVERABILITY OF PROVISIONS.................................................33
Section 9.10 SUCCESSORS AND ASSIGNS.....................................................33
Section 9.11 ARTICLE AND SECTION HEADINGS...............................................33
Section 9.12 COUNTERPARTS...............................................................33
Section 9.13 NOTICE TO RATING AGENCIES..................................................34
EXHIBITS
ii
Exhibit A - Form of Class A-1B Certificates
Exhibit B - Copies of Underlying Certificates
Exhibit C - Swap Agreement
Exhibit D - Underlying Pooling and Servicing Agreement
iii
GRANTOR TRUST AGREEMENT
Grantor Trust Agreement, dated September 30, 2004, among Structured
Asset Mortgage Investments II Inc., a Delaware corporation, as depositor (the
"Depositor"), ▇▇▇▇▇ Fargo Bank, National Association, as paying agent (in such
capacity, the "Paying Agent") and certificate registrar (in such capacity, the
"Certificate Registrar"), and JPMorgan Chase Bank, not in its individual
capacity but solely as grantor trustee (the "Grantor Trustee").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Underlying
Certificates. On the Closing Date, the Depositor will transfer the Underlying
Certificates and receive the Certificates evidencing the entire beneficial
ownership interest in the Trust Fund.
The Grantor Trustee on behalf of the Trust shall make an election for
the assets constituting the Trust Fund to be treated for federal income tax
purposes as a grantor trust.
In consideration of the mutual agreements herein contained, the
Depositor, the Paying Agent, the Certificate Registrar and the Grantor Trustee
agree as follows:
ARTICLE I
Definitions
Whenever used in this Agreement, the following words and phrases,
unless otherwise expressly provided or unless the context otherwise requires,
shall have the meanings specified in this Article. Capitalized terms not
otherwise defined herein shall have the meanings assigned to such terms in the
Underlying Pooling and Servicing Agreement.
Accrued Certificate Interest: For the Certificates and any Distribution
Date, the interest accrued during the related Interest Accrual Period at the
applicable Pass-Through Rate on the Current Principal Amount of the Certificates
immediately prior to such Distribution Date, less any Underlying Interest
Shortfall allocated thereto in accordance with this Agreement (as a result of
any Underlying Interest Shortfalls allocated to the Underlying Certificates
pursuant to the Underlying Pooling and Servicing Agreement). Interest on the
Certificates shall be calculated on the basis of a 360-day year and the actual
number of days in the related Interest Accrual Period.
Additional Swap Counterparty Fee: With respect to any Distribution
Date, any termination payments to be made to the Swap Counterparty pursuant to
the terms of the Swap Agreement as a result of a default under the Swap
Agreement, as calculated by the Swap Counterparty and reported to the Paying
Agent.
Affiliate: As to any Person, any other Person controlling, controlled
by or under common control with such Person. "Control" means the power to direct
the management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise. "Controlled" and
"Controlling" have meanings correlative to the foregoing. The Grantor Trustee
may conclusively presume that a Person is not an Affiliate of another Person
unless a Responsible Officer of the Grantor Trustee has actual knowledge to the
contrary.
Agreement: This Grantor Trust Agreement and all amendments hereof and
supplements hereto.
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Assumed Final Distribution Date: February 19, 2035, or if such day is
not a Business Day, the next succeeding Business Day.
Available Funds: With respect to any Distribution Date, the sum of (i)
any payments received by the Paying Agent with respect to the Underlying
Certificates and (ii) any payments received by the Paying Agent from or with
respect to the Swap Counterparty, the Certificates or the Swap Agreement,
following the payment of amounts to reimburse the Grantor Trustee, the Paying
Agent and the Certificate Registrar for their reimbursable expenses as set forth
herein.
Bankruptcy Code: The United States Bankruptcy Code, as amended as
codified in 11 U.S.C. ▇▇.▇▇. 101-1330.
Book-Entry Certificates: The Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which the New York Stock Exchange or Federal Reserve is closed or on
which banking institutions in the jurisdiction in which the Grantor Trustee, the
Master Servicer, any Servicer or the Securities Administrator are authorized or
obligated by law or executive order to be closed.
Certificate: Any Class A-1B Certificate evidencing a beneficial
ownership interest in the Trust Fund signed by the Grantor Trustee and
countersigned by the Certificate Registrar in substantially the form annexed
hereto as Exhibit A, with the blanks therein appropriately completed.
Certificate Owner: Any Person who is the beneficial owner of a
Certificate registered in the name of DTC or its nominee.
Certificate Register: The register maintained pursuant to Section 4.02.
Certificate Registrar: ▇▇▇▇▇ Fargo Bank, National Association, or its
successor in interest, or any successor certificate registrar appointed as
herein provided.
Certificateholder: A Holder of a Certificate.
Class: With respect to the Certificates, A-1B.
Closing Date: September 30, 2004.
Code: The Internal Revenue Code of 1986, as amended.
Corporate Trust Office: With respect to the Certificate Registrar and
the presentment of Certificates for registration of transfer, exchange or final
payment, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust, ▇▇▇▇ ▇▇ Series
2004-AR6, and for all other purposes, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or
for overnight deliveries, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇),
Attention: Corporate Trust, ▇▇▇▇ ▇▇ Series 2004-AR6.
Current Principal Amount: With respect to any Certificate as of any
Distribution Date, the initial principal amount of such Certificate on the
Closing Date, reduced by (i) all amounts allocable to principal previously
distributed with respect to such Certificate and (ii) the principal portion of
all Underlying Realized Losses allocated prior to such Distribution Date to such
Certificate (indirectly, through the
2
Underlying Certificates). With respect to the Certificates in the aggregate, the
Current Principal Amount thereof will equal the sum of the Current Principal
Amounts of all Certificates.
Cut-Off Date: September 1, 2004.
Depositor: Structured Asset Mortgage Investments II Inc., a Delaware
corporation, or its successors in interest.
Distribution Account: The trust account or accounts created and
maintained pursuant to Section 3.01, which shall be denominated "▇▇▇▇▇ Fargo
Bank, National Association, as Paying Agent for the benefit of the holders of
Structured Asset Mortgage Investments II Inc., Structured Asset Mortgage
Investments II Grantor Trust, Mortgage Pass-Through Certificates, Series
2004-AR6 - Grantor Trust Distribution Account."
Distribution Date: The 19th day of any month, beginning in the month
immediately following the month of the Closing Date, or, if such 19th day is not
a Business Day, the Business Day immediately following.
DTC: The Depository Trust Company, the nominee of which is Cede & Co.,
or any successor thereto.
DTC Agreement: The meaning specified in Subsection 4.01(a) hereof.
DTC Custodian: The Certificate Registrar, or its successor in interest
as custodian for DTC.
DTC Participant: A broker, dealer, bank or other financial institution
or other Person for whom from time to time DTC effects book-entry transfers and
pledges of securities deposited with DTC.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
▇▇▇▇▇▇ Mae: ▇▇▇▇▇▇ ▇▇▇ (also known as Federal National Mortgage
Association) or any successor thereto.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
Fractional Undivided Interest: With respect to the Certificates, the
fractional undivided interest evidenced by any Certificate, the numerator of
which is the Current Principal Amount of such Certificate and the denominator of
which is the aggregate Current Principal Amounts of all such Certificates.
▇▇▇▇▇▇▇ Mac: ▇▇▇▇▇▇▇ Mac (also known as the Federal Home Loan Mortgage
Corporation) or any successor thereto.
Grantor Trustee: JPMorgan Chase Bank, or its successor in interest, or
any successor grantor trustee appointed as herein provided.
Holder: The Person in whose name a Certificate is registered in the
Certificate Register, except that, subject to Subsections 9.03(b) and 9.06(e),
solely for the purpose of giving any consent pursuant to this Agreement, any
Certificate registered in the name of the Depositor, the Paying Agent, the
Certificate Registrar or the Grantor Trustee or any Affiliate thereof shall be
deemed not to be outstanding and the Fractional Undivided Interest evidenced
thereby shall not be taken into account in determining whether
3
the requisite percentage of Fractional Undivided Interests necessary to effect
any such consent has been obtained.
Indemnified Persons: The Paying Agent, the Certificate Registrar, the
Grantor Trustee and their respective officers, directors, agents and employees
and any separate grantor trustee or co-grantor trustee and their respective
officers, directors, agents and employees.
Independent: When used with respect to any specified Person, this term
means that such Person (a) is in fact independent of the Depositor and of any
Affiliate of the Depositor, (b) does not have any direct financial interest or
any material indirect financial interest in the Depositor or any Affiliate of
the Depositor and (c) is not connected with the Depositor or any Affiliate of
the Depositor as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
Interest Accrual Period: With respect to the Certificates, the period
from and including the preceding Distribution Date (or, in the case of the first
Distribution Date, from the Closing Date) to and including the day prior to the
current Distribution Date.
LIBOR: LIBOR as determined by the Underlying Securities Administrator
pursuant to the Underlying Pooling and Servicing Agreement.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. or its successor in interest.
One-Month LIBOR: One-Month LIBOR as determined by the Underlying
Securities Administrator pursuant to the Underlying Pooling and Servicing
Agreement.
Opinion of Counsel: A written opinion of counsel who is or are
acceptable to the Grantor Trustee and who, unless required to be Independent (an
"Opinion of Independent Counsel"), may be internal counsel for the Depositor.
Optional Termination Date: Any Distribution Date on or after which the
Scheduled Principal Balance (as such term is defined in the Underlying Pooling
and Servicing Agreement, and before giving effect to distributions to be made on
such Distribution Date) of the Underlying Mortgage Loans is less than or equal
to 10% of the sum of (i) the Cut-off Date Balance (as such term is defined in
the Underlying Pooling and Servicing Agreement) and (ii) the Group I Pre-Funded
Amount (as such term is defined in the Underlying Pooling and Servicing
Agreement).
Pass-Through Rate: With respect to the Certificates and any
Distribution Date on or prior to the first possible Optional Termination Date,
One-Month LIBOR plus 0.200% per annum, and with respect to the Certificates and
any Distribution Date following the first possible Optional Termination Date,
One-Month LIBOR plus 0.400% per annum, in each case calculated on the basis of a
360-day year and the actual number of days in the related Interest Accrual
Period. The Pass-Through Rate with respect to the first Interest Accrual Period
is approximately 2.040% per annum.
Paying Agent. ▇▇▇▇▇ Fargo Bank, National Association, or its
successor-in-interest, or any successor paying agent appointed as herein
provided.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Rating Agencies: S&P and Moody's.
4
Record Date: With respect to the Certificates, the Business Day
preceding the applicable Distribution Date.
Responsible Officer: Any officer assigned to the Corporate Trust Office
(or any successor thereto), including any Vice President, Assistant Vice
President, Trust Officer, any Assistant Secretary, any trust officer or any
other officer of the Grantor Trustee, the Paying Agent or the Certificate
Registrar, as applicable, customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement.
S&P: Standard and Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., and its successor in interest.
Swap Agreement: The ISDA Master Agreement and Confirmation, dated the
Closing Date, between the Swap Counterparty and the Grantor Trustee.
Swap Counterparty: Bear ▇▇▇▇▇▇▇ Financial Products, Inc., or any
successor swap counterparty appointed in accordance with the Swap Agreement.
Swap Counterparty Payment: An amount, as calculated by the Swap
Counterparty and reported to the Securities Administrator, equal to interest
accrued (calculated on the basis of a 360-day year consisting of twelve 30-day
months for an Interest Accrual Period relating to the Underlying Certificates),
on the balance equal to the Current Principal Amount of the Underlying
Certificates immediately prior to the related Distribution Date, at a rate equal
to the following:
(i) if each of 11.00% per annum and the weighted average of the Net
Rates on the Group I Mortgage Loans exceeds One-Month LIBOR plus 0.350% per
annum (with respect to a Distribution Date prior to the first possible Optional
Termination Date) or One-Month LIBOR plus 0.700% per annum (with respect to a
Distribution Date following the first possible Optional Termination Date), as
applicable, then (1) with respect to a Distribution Date prior to the first
possible Optional Termination Date the rate shall equal the excess of (A)
One-Month LIBOR plus 0.350% per annum, calculated on the basis of a 360-day year
consisting of twelve 30-day months, over (B) One-Month LIBOR plus 0.200% per
annum, calculated on the basis of the actual number of days in the related
Interest Accrual Period and a 360-day year, and (2) with respect to a
Distribution Date following the first possible Optional Termination Date the
rate shall equal the excess of (X) One-Month LIBOR plus 0.700% per annum,
calculated on the basis of a 360-day year consisting of twelve 30-day months,
over (Y) One-Month LIBOR plus 0.400% per annum, calculated on the basis of the
actual number of days in the related Interest Accrual Period and a 360-day year;
and
(ii) if (A) each of 11.00% per annum and One-Month LIBOR plus 0.350%
per annum (with respect to a Distribution Date prior to the first possible
Optional Termination Date) or One-Month LIBOR plus 0.700% per annum (with
respect to a Distribution Date following the first possible Optional Termination
Date), as applicable, exceeds the weighted average of the Net Rates on the Group
I Mortgage Loans and (B) (1) the sum of (x) the weighted average of the Net
Rates on the Group I Mortgage Loans and (y) any Carryover Shortfall Amounts paid
to the Underlying Certificates from the Carryover Shortfall Reserve Fund on such
Distribution Date exceeds (2) One-Month LIBOR plus 0.200% per annum (with
respect to a Distribution Date prior to the first possible Optional Termination
Date) or One-Month LIBOR plus 0.400% per annum (with respect to a Distribution
Date following the first possible Optional Termination Date), calculated on the
basis of the actual number of days in the related Interest Accrual Period and a
360-day year, then the rate shall equal the excess of (B)(1) over (B)(2).
5
Swap Termination Event: A default by the Swap Counterparty of its
obligations under the Swap Agreement.
Trust Fund or Trust: The corpus of the trust created by this Agreement,
consisting of the Underlying Certificates, the Swap Agreement and the other
assets described in Section 2.01.
Underlying Certificate Registrar: ▇▇▇▇▇ Fargo Bank, National
Association, as certificate registrar under the Underlying Pooling and Servicing
Agreement, or its successor in interest, or any successor certificate registrar
appointed as provided in the Underlying Pooling and Servicing Agreement.
Underlying Certificates: The Class A-1B Certificates issued pursuant to
the Underlying Pooling and Servicing Agreement.
Underlying Certificates Remittance Report: The remittance report
provided to the Holders of the Underlying Certificates in accordance with
Section 6.04 of the Underlying Pooling and Servicing Agreement.
Underlying Interest Shortfalls: Any Net Interest Shortfalls (as defined
in the Underlying Pooling and Servicing Agreement) allocated to the Underlying
Certificates pursuant to Section 6.02(g) of the Underlying Pooling and Servicing
Agreement.
Underlying Mortgage Loans: The mortgage loans deposited into the
Underlying Trust created by the Underlying Pooling and Servicing Agreement.
Underlying Paying Agent: ▇▇▇▇▇ Fargo Bank, National Association, as
paying agent under the Underlying Pooling and Servicing Agreement, or its
successor in interest, or any successor paying agent appointed as provided in
the Underlying Pooling and Servicing Agreement.
Underlying Pooling and Servicing Agreement: The Pooling and Servicing
Agreement dated as of September 1, 2004, attached hereto as Exhibit D.
Underlying Realized Losses: Any Realized Losses on the Mortgage Loans
allocated to the Underlying Certificates pursuant to the Underlying Pooling and
Servicing Agreement.
Underlying Securities Administrator: ▇▇▇▇▇ Fargo Bank, National
Association, as securities administrator under the Underlying Pooling and
Servicing Agreement, or its successor in interest, or any successor securities
administrator appointed as provided in the Underlying Pooling and Servicing
Agreement.
Underlying Trust: The corpus of the trust created by the Underlying
Pooling and Servicing Agreement.
Underlying Trustee: JPMorgan Chase Bank, as trustee under the
Underlying Pooling and Servicing Agreement, or its successor in interest, or any
successor trustee appointed as provided in the Underlying Pooling and Servicing
Agreement.
6
ARTICLE II
Conveyance of Underlying Certificates;
Original Issuance of Certificates
Section 2.01 CONVEYANCE OF UNDERLYING CERTIFICATES TO GRANTOR
TRUSTEE. The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, convey and assign to the Grantor Trustee, in trust, for
the use and benefit of the Certificateholders, (i) all the right, title and
interest of the Depositor in and to the Underlying Certificates, (ii) all
distributions on the Underlying Certificates after the Closing Date and (iii)
all other assets constituting the Trust Fund.
In connection with such transfer and assignment, the Depositor is
causing the delivery of the Underlying Certificates to the Grantor Trustee.
It is intended by the Depositor that the conveyance of the Depositor's
right, title and interest in and to the Underlying Certificates and all other
assets constituting the Trust Fund pursuant to this Agreement shall constitute,
and be construed as, an absolute sale of the Underlying Certificates and the
other assets constituting the Trust Fund by the Depositor to the Grantor Trustee
for the benefit of the Certificateholders. Furthermore, it is not intended by
the Depositor that such conveyance be deemed a pledge of the Underlying
Certificates and the other assets constituting the Trust Fund by the Depositor
to the Grantor Trustee to secure a debt or other obligation of the Depositor.
However, in the event that, notwithstanding the intent of the parties, the
Underlying Certificates and the other assets constituting the Trust Fund are
held to be the property of the Depositor, or if for any other reason this
Agreement is held or deemed to create a security interest in the Underlying
Certificates and the other assets constituting the Trust Fund, then it is
intended by the Depositor as follows: (a) this Agreement shall also be deemed to
be a security agreement within the meaning of Articles 8 and 9 of the Uniform
Commercial Code; (b) the conveyance provided for in this Section shall be deemed
to be a grant by the Depositor to the Grantor Trustee of a security interest in
all of the Depositor's right, title and interest in and to the Underlying
Certificates, and all amounts payable to the holders of the Underlying
Certificates and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property, including
without limitation all amounts from time to time held or invested in the
Distribution Account, whether in the form of cash, instruments, securities or
other property; (c) the possession by the Grantor Trustee (or its agent,
providing that the agent authenticates a record acknowledging that it holds
possession for the benefit of the Grantor Trustee) of the Underlying
Certificates and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-313 of the Uniform Commercial Code; and (d) notifications to persons
holding such property, and acknowledgments, receipts or confirmations from
persons holding such property, shall be deemed to be notifications to or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Grantor Trustee for the purpose of
perfecting such security interest under applicable law. It is also intended that
the Trust Fund be classified (for Federal tax purposes) as a grantor trust under
subpart E, part I of subchapter J of chapter 1 of the Code, of which the
Certificateholders are owners, rather than as an association taxable as a
corporation. The powers granted and obligations undertaken in this Agreement
shall be construed so as to further such intent.
Section 2.02 ACCEPTANCE BY GRANTOR TRUSTEE. The Grantor Trustee
hereby acknowledges the receipt by it of the Underlying Certificates and
declares that it holds and will hold such Underlying Certificates and all other
assets and documents included in the Trust Fund, in trust, upon the
7
trusts herein set forth, for the exclusive use and benefit of all present and
future Certificateholders in accordance with the terms of this Agreement.
Section 2.03 SWAP AGREEMENT. On the Closing Date, the Grantor
Trustee shall enter into the Swap Agreement with the Swap Counterparty.
Section 2.04 REPRESENTATIONS AND WARRANTIES CONCERNING THE
DEPOSITOR. The Depositor hereby represents and warrants to the Grantor Trustee
as follows:
(i) the Depositor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and (b) is qualified and in good standing as a foreign corporation to
do business in each jurisdiction where such qualification is necessary,
except where the failure so to qualify would not reasonably be expected
to have a material adverse effect on the Depositor's business as
presently conducted or on the Depositor's ability to enter into this
Agreement and to consummate the transactions contemplated hereby;
(ii) the Depositor has full corporate power to own its
property, to carry on its business as presently conducted and to enter
into and perform its obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action
on the part of the Depositor; and neither the execution and delivery of
this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will conflict
with or result in a breach of, or constitute a default under, any of
the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on the Depositor or its properties or the
articles of incorporation or by-laws of the Depositor, except those
conflicts, breaches or defaults which would not reasonably be expected
to have a material adverse effect on the Depositor's ability to enter
into this Agreement and to consummate the transactions contemplated
hereby;
(iv) the execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency,
except those consents, approvals, notices, registrations or other
actions as have already been obtained, given or made;
(v) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a valid and binding obligation of
the Depositor enforceable against it in accordance with its terms
(subject to applicable bankruptcy and insolvency laws and other similar
laws affecting the enforcement of the rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to
the knowledge of the Depositor, threatened against the Depositor,
before or by any court, administrative agency, arbitrator or
governmental body (i) with respect to any of the transactions
contemplated by this Agreement or (ii) with respect to any other matter
which in the judgment of the Depositor will be determined adversely to
the Depositor and will, if determined adversely to the Depositor,
materially and adversely affect the Depositor's ability to enter into
this Agreement or perform its obligations under this Agreement; and the
Depositor is not in default with respect to any order of any court,
administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this
Agreement; and
8
(vii) immediately prior to the transfer and assignment to the
Paying Agent, each Underlying Certificate was not subject to an
assignment or pledge, and the Depositor had good and marketable title
to and was the sole owner thereof and had full right to transfer and
sell such Underlying Certificate to the Grantor Trustee free and clear
of any encumbrance, equity, lien, pledge, charge, claim or security
interest.
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ARTICLE III
Accounts
Section 3.01 DISTRIBUTION ACCOUNT.
(a) The Paying Agent shall establish and maintain in the name of the
Paying Agent, for the benefit of the Certificateholders, the Distribution
Account as a segregated trust account or accounts. The Paying Agent will deposit
in the Distribution Account any amounts paid to the Grantor Trust by the
Underlying Trust to or with respect to the Underlying Certificates pursuant to
the Underlying Pooling and Servicing Agreement and any amounts paid to the
Grantor Trust pursuant to the Swap Agreement.
(b) All amounts deposited to the Distribution Account shall be held by
the Paying Agent in the name of the Paying Agent in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement.
(c) The Distribution Account shall constitute a trust account of the
Trust Fund segregated on the books of the Paying Agent and held by the Paying
Agent in trust in its Corporate Trust Office, and the Distribution Account and
the funds deposited therein shall not be subject to, and shall be protected
from, all claims, liens, and encumbrances of any creditors or depositors of the
Paying Agent (whether made directly, or indirectly through a liquidator or
receiver of the Paying Agent). The amount at any time credited to the
Distribution Account shall be uninvested.
Section 3.02 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE
DISTRIBUTION ACCOUNT.
(a) The Paying Agent may clear and terminate the Distribution Account
pursuant to Section 8.01(d) and remove amounts from time to time deposited in
error into the Distribution Account.
(b) On an ongoing basis, the Paying Agent shall withdraw from the
Distribution Account any expenses, disbursements and advances recoverable by the
Grantor Trustee, the Paying Agent and the Certificate Registrar pursuant to
Section 7.05 and any amounts payable as indemnification pursuant to Section
6.01.
(c) On each Distribution Date, the Paying Agent shall pay the amount
distributable to the Swap Counterparty and the Holders of the Certificates in
accordance with Section 5.01 from Available Funds in the Distribution Account.
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ARTICLE IV
Certificates
Section 4.01 CERTIFICATES.
(a) DTC, the Depositor and the Certificate Registrar have entered into
a Depository Agreement dated as of September 30, 2004 (the "DTC Agreement"). The
Certificates shall at all times remain registered in the name of DTC or its
nominee and at all times: (i) registration of such Certificates may not be
transferred by the Certificate Registrar except to a successor to DTC; (ii)
ownership and transfers of registration of such Certificates on the books of DTC
shall be governed by applicable rules established by DTC; (iii) DTC may collect
its usual and customary fees, charges and expenses from its DTC Participants;
(iv) the Grantor Trustee shall deal with DTC 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 Paying Agent, the Grantor
Trustee and the Certificate Registrar may rely and shall be fully protected in
relying upon information furnished by DTC with respect to its DTC Participants.
All transfers by Certificate Owners of the Book-Entry Certificates
shall be made in accordance with the procedures established by the DTC
Participant or brokerage firm representing such Certificate Owners. Each DTC
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
DTC's normal procedures.
(b) If (i)(A) the Depositor advises the Certificate Registrar in
writing that DTC is no longer willing or able to properly discharge its
responsibilities under the DTC Agreement and (B) the Certificate Registrar or
the Depositor is unable to locate a qualified successor within 30 days
thereafter or (ii) the Depositor at its option advises the Certificate Registrar
in writing that it elects to terminate the book-entry system through DTC, the
Certificate Registrar shall request that DTC notify all Certificate Owners of
the occurrence of any such event and of the availability of definitive, fully
registered Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the Certificates by DTC, accompanied
by registration instructions from DTC for registration, the Grantor Trustee
shall issue and sign, and the Certificate Registrar shall countersign, the
definitive Certificates. Neither of the Depositor, the Paying Agent, the
Certificate Registrar nor the Grantor 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 have the following designation and initial
principal amount:
Designation Initial Principal Amount
----------------------------------------------------------------------
A-1B $78,000,000.00
The Certificates shall have the Pass-Through Rate as defined herein.
(d) With respect to each Distribution Date, the Certificates shall
accrue interest during the related Interest Accrual Period. Interest on the
Certificates shall be calculated on the basis of a 360-day year and the actual
number of days in the related Interest Accrual Period, based upon the
Pass-Through
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Rate set forth above and the Current Principal Amount of the Certificates
applicable to such Distribution Date.
(e) The Certificates shall be substantially in the form set forth in
Exhibit A. On original issuance, the Grantor Trustee shall sign the
Certificates, and the Certificate Registrar shall countersign the Certificates,
and the Grantor Trustee shall deliver the Certificates at the direction of the
Depositor. Pending the preparation of definitive Certificates, the Grantor
Trustee may sign, and the Certificate Registrar may countersign, temporary
Certificates that are printed, lithographed or typewritten, in authorized
denominations, 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 Certificate Registrar, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Grantor Trustee shall sign, and the Certificate Registrar
shall countersign, and the Grantor Trustee shall 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.
(f) The Book-Entry Certificates will be registered as a single
Certificate held by a nominee of DTC or the DTC Custodian, and beneficial
interests will be held by investors through the book-entry facilities of DTC in
minimum denominations of $1,000 and increments of $1.00 in excess thereof. On
the Closing Date, the Grantor Trustee shall execute the Certificate, and the
Certificate Registrar shall countersign the Certificate, in the entire Current
Principal Amount of the Certificates. The Grantor Trustee shall sign, and the
Certificate Registrar shall countersign, the Certificates by facsimile or manual
signature on behalf of the Grantor Trustee or the Certificate Registrar, as
applicable, by one of its authorized signatories, who shall be a Responsible
Officer of the Grantor Trustee or the Certificate Registrar, as applicable, or
its agent. A Certificate bearing the manual or facsimile signature of an
individual who was an authorized signatory of the Grantor Trustee or the
Certificate Registrar, as applicable, or its agent at the time of issuance shall
bind the Grantor Trustee or the Certificate Registrar, as applicable,
notwithstanding that such individual has ceased to hold such position prior to
the delivery of such Certificate.
(g) No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
the manually executed countersignature of the Certificate Registrar, or its
agent, and such countersignature upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly executed
and delivered hereunder. All Certificates issued on the Closing Date shall be
dated the Closing Date. All Certificates issued thereafter shall be dated the
date of their countersignature.
Section 4.02 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall maintain at its Corporate Trust
Office a Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided.
(b) Subject to Subsection 4.01(a), upon surrender for registration of
transfer of any Certificate at any office or agency of the Certificate Registrar
maintained for such purpose, the Grantor Trustee shall sign, and the Certificate
Registrar shall countersign, and the Grantor Trustee shall deliver, in
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the name of the designated transferee or transferees, a new Certificate of a
like aggregate Fractional Undivided Interest, but bearing a different number.
(c) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like aggregate
Fractional Undivided Interest, upon surrender of the Certificates to be
exchanged at any such office or agency; provided, however, that no Certificate
may be exchanged for new Certificates unless the original Fractional Undivided
Interest represented by each such new Certificate (i) is at least equal to the
minimum authorized denomination or (ii) is acceptable to the Depositor as
indicated to the Certificate Registrar in writing. Whenever any Certificates are
so surrendered for exchange, the Grantor Trustee shall sign, and the Certificate
Registrar shall countersign, and the Grantor Trustee shall deliver, the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(d) If either the Grantor Trustee or the Certificate Registrar so
requires, every Certificate presented or surrendered for transfer or exchange
shall be duly endorsed by, or be accompanied by a written instrument of
transfer, with a signature guarantee, in form satisfactory to the Grantor
Trustee or the Certificate Registrar, as applicable duly executed by the holder
thereof or his or her attorney duly authorized in writing.
(e) No service charge shall be made for any transfer or exchange of
Certificates, but the Certificate Registrar, the Grantor Trustee and the Paying
Agent 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.
(f) The Certificate Registrar shall cancel all Certificates surrendered
for transfer or exchange but shall retain such Certificates in accordance with
its standard retention policy or for such further time as is required by the
record retention requirements of the Securities Exchange Act of 1934, as
amended, and thereafter may destroy such Certificates.
(g) The following legend shall be placed on the Certificates, whether
upon original issuance or upon issuance of any other Certificate in exchange
therefor or upon transfer thereof:
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (ERISA), UNLESS THE PROPOSED TRANSFEREE PROVIDES
THE GRANTOR TRUSTEE, THE CERTIFICATE REGISTRAR AND THE PAYING AGENT
WITH AN OPINION OF COUNSEL, ADDRESSED TO THE GRANTOR TRUSTEE, THE
MASTER SERVICER, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE
DEPOSITOR AND THE UNDERLYING SECURITIES ADMINISTRATOR AND ON WHICH THEY
MAY RELY AND THAT IS SATISFACTORY TO THE GRANTOR TRUSTEE, THE MASTER
SERVICER, THE PAYING AGENT, THE CERTIFICATE REGISTRAR AND THE
UNDERLYING SECURITIES ADMINISTRATOR, THAT THE PURCHASE OF THE CLASS
A-1B CERTIFICATES ON BEHALF OF SUCH PERSON WILL NOT RESULT IN OR
CONSTITUTE A NONEXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION
4975 OF THE CODE, IS PERMISSIBLE UNDER APPLICABLE LAW AND WILL NOT GIVE
RISE TO ANY OBLIGATIONS ON THE PART OF THE DEPOSITOR, THE MASTER
SERVICER, THE UNDERLYING SECURITIES ADMINISTRATOR, THE UNDERLYING
TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR OR THE GRANTOR
TRUSTEE IN
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ADDITION TO THOSE OBLIGATIONS SET FORTH IN THE UNDERLYING POOLING AND
SERVICING AGREEMENT.
THE CERTIFICATES ARE SUBJECT TO THE RESTRICTIONS IN SECTION 4.05 OF THE
AGREEMENT.
Section 4.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
(a) If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar such security or indemnity as it may require to
save it harmless, and (iii) the Grantor Trustee, the Paying Agent or the
Certificate Registrar has not received notice that such Certificate has been
acquired by a third Person, the Grantor Trustee shall sign, and the Certificate
Registrar shall countersign, and the Grantor Trustee shall deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of like tenor and Fractional Undivided Interest but in each case
bearing a different number. The mutilated, destroyed, lost or stolen Certificate
shall thereupon be canceled of record by the Certificate Registrar and shall be
of no further effect and evidence no rights.
(b) Upon the issuance of any new Certificate under this Section 4.03,
the Grantor Trustee and the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Grantor Trustee, the Paying Agent and the Certificate Registrar) connected
therewith. Any duplicate Certificate issued pursuant to this Section 4.03 shall
constitute complete and indefeasible evidence of ownership in the Trust Fund, 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 presentation of a
Certificate for registration of transfer, the Depositor, the Grantor Trustee,
the Paying Agent and the Certificate Registrar and any agent of the Depositor,
the Grantor Trustee, the Paying Agent and 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 5.01
and for all other purposes whatsoever. Neither the Depositor, the Grantor
Trustee, the Paying Agent and the Certificate Registrar nor any agent of the
Depositor, the Grantor Trustee, the Paying Agent and the Certificate Registrar
shall be affected by notice to the contrary. No Certificate shall be deemed duly
presented for a transfer effective on any Record Date unless the Certificate to
be transferred is presented no later than the close of business on the third
Business Day preceding such Record Date.
Section 4.05 ERISA RESTRICTIONS.
(a) Subject to the provisions of subsection (b), no Certificates may be
acquired directly or indirectly by, or on behalf of, an employee benefit plan or
other retirement arrangement which is subject to Title I of ERISA and Section
4975 of the Code, unless the proposed transferee provides the Grantor Trustee,
the Paying Agent and the Certificate Registrar with an Opinion of Counsel
addressed to the Grantor Trustee, the Master Servicer, the Paying Agent, the
Certificate Registrar and the Underlying Securities Administrator (and upon
which they may rely) which is satisfactory to the Grantor Trustee, the Master
Servicer, the Underlying Securities Administrator, the Paying Agent and the
Certificate Registrar, which opinion will not be at the expense of the Grantor
Trustee, the Master Servicer, the Paying Agent, the Certificate Registrar or the
Underlying Securities Administrator, that the purchase of such Certificates by
or on behalf of such Plan is permissible under applicable law, will not
constitute or result in a non-exempt prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the
14
Depositor, the Master Servicer, the Underlying Securities Administrator, the
Underlying Trustee, the Paying Agent, the Certificate Registrar or the Grantor
Trustee to any obligation in addition to those undertaken in the Underlying
Pooling and Servicing Agreement.
(b) Any Person acquiring an interest in a Certificate, by acquisition
of such Certificate, shall be deemed to have represented to the Grantor Trustee,
the Paying Agent and the Certificate Registrar that either: (i) it is not
acquiring an interest in such Certificate directly or indirectly by, or on
behalf of, an employee benefit plan or other retirement arrangement which is
subject to Title I of ERISA and/or Section 4975 of the Code, or (ii) the
transfer and/or holding of an interest in such Certificate to that Person and
the subsequent servicing, management and/or operation of the Trust and its
assets: (I) will not result in any prohibited transaction which is not covered
under an individual or class prohibited transaction exemption ("PTE"),
including, but not limited to, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇, ▇▇▇ 95-60 or PTE
96-23 and (II) will not subject the Depositor, the Master Servicer, the
Underlying Securities Administrator, the Underlying Trustee, the Paying Agent,
the Certificate Registrar or the Grantor Trustee to any obligation in addition
to those undertaken in the Underlying Pooling and Servicing Agreement. None of
the Grantor Trustee, the Certificate Registrar or the Paying Agent will be
required to monitor, determine or inquire as to compliance with the foregoing
transfer restrictions and none of such Persons shall have any liability for the
transfer of any Book-Entry Certificates made in violation of the transfer
restrictions set forth herein.
Section 4.06 APPOINTMENT OF CERTIFICATE REGISTRAR AND PAYING AGENT.
▇▇▇▇▇ Fargo Bank, National Association shall act as the initial
Certificate Registrar and the initial Paying Agent. Each of the Certificate
Registrar and the Paying Agent may resign or be removed, and a successor
Certificate Registrar or successor Paying Agent, as applicable, may be
appointed, as set forth in Article VII.
15
ARTICLE V
Payments to Certificateholders
Section 5.01 DISTRIBUTIONS ON THE CERTIFICATES.
(a) Interest and principal on the Certificates will be distributed
monthly on each Distribution Date, commencing in October 2004, in an aggregate
amount equal to the Available Funds for such Distribution Date. On each
Distribution Date, the Available Funds shall be distributed as follows:
(i) FIRST, to the Swap Counterparty, the Swap Counterparty
Payment (if any) for such Distribution Date;
(ii) SECOND, to the extent of remaining Available Funds, to
the Certificates, the Accrued Certificate Interest on the Certificates
for such Distribution Date;
(iii) THIRD, to the extent of remaining Available Funds, to
the Certificates, the Accrued Certificate Interest on the Certificates,
if any, pursuant to clause SECOND remaining undistributed from previous
Distribution Dates;
(iv) FOURTH, to the extent of remaining Available Funds, to
the Certificates, any principal distributions received from the
Underlying Certificates, in reduction of the Current Principal Amount
thereof, until the Current Principal Amount thereof has been reduced to
zero; and
(v) FIFTH, to the extent of remaining Available Funds, to the
Swap Counterparty, any Additional Swap Counterparty Fee.
(b) No Accrued Certificate Interest will be payable with respect to the
Certificates after the Distribution Date on which the Current Principal Amount
of the Certificates has been reduced to zero.
Section 5.02 ALLOCATION OF LOSSES.
(a) On or prior to each Determination Date, the Paying Agent, based
solely upon information provided to it and calculations with respect thereto
conducted by the Underlying Securities Administrator pursuant to Section 6.04 of
the Underlying Pooling and Servicing Agreement, shall determine the amount of
any Underlying Realized Losses on the Mortgage Loans to be allocated to the
Underlying Certificates (and, correspondingly, to the Certificates).
(b) With respect to any Certificates on any Distribution Date, the
principal portion of each Underlying Realized Loss allocated to the Underlying
Certificates (and, correspondingly, to the Certificates) shall be allocated
among the Certificates in proportion to their respective Current Principal
Amounts, until the Current Principal Amount thereof has been reduced to zero.
Section 5.03 PAYMENTS.
(a) On each Distribution Date, other than the final Distribution Date,
the Paying Agent shall distribute to each Certificateholder of record on the
directly preceding Record Date the Certificateholder's pro rata share (based on
the aggregate Fractional Undivided Interest represented by such Holder's
16
Certificates) of all amounts required to be distributed on such Distribution
Date to the Certificates, based solely on information provided to the Paying
Agent and calculations with respect thereto conducted by the Underlying
Securities Administrator and the Swap Counterparty. The Paying Agent shall not
be required to confirm, verify or recompute any such information but shall be
entitled to rely conclusively on such information.
(b) Payment of the above amounts to each Certificateholder shall be
made (i) by check mailed to each Certificateholder entitled thereto at the
address appearing in the Certificate Register or (ii) upon receipt by the Paying
Agent, on or before the fifth Business Day preceding the related Record Date, of
written instructions from a Certificateholder, by wire transfer to a United
States dollar account maintained by the payee at any United States depository
institution with appropriate facilities for receiving such a wire transfer;
provided, however, that the final payment in respect of the Certificates will be
made only upon presentation and surrender of such respective Certificates at the
office or agency of the Certificate Registrar specified in the notice to
Certificateholders of such final payment.
Section 5.04 STATEMENTS TO CERTIFICATEHOLDERS.
(a) Concurrently with each distribution to Certificateholders, the
Paying Agent shall make available via the Paying Agent's internet website as set
forth below, all of the information contained in the Underlying Certificates
Remittance Report and the following:
(i) the respective Pass-Through Rates on each of the
Underlying Certificates and the Certificates;
(ii) the respective amounts of any interest distributions made
to each of the Underlying Certificates and the Certificates;
(iii) the respective amounts of any principal distributions
made to each of the Underlying Certificates and the Certificates;
(iv) the amount of any payments of Carryover Shortfall Amounts
made by the Carryover Shortfall Reserve Fund to the Underlying
Certificates;
(v) the amount of any Underlying Realized Loss allocated to
the Underlying Certificates;
(vi) the amount of any payments made to the Swap Counterparty
by the Trust; and
(vii) the amount of any payments made to the Trust by the Swap
Counterparty.
The Paying Agent may make available each month, to any interested
party, the monthly statement to Certificateholders via the Paying Agent's
website initially located at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇. Assistance in using the website
can be obtained by calling the Paying Agent's customer service desk at (301)
815-6600. 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
customer service desk and indicating such. The Paying Agent 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
Paying Agent shall provide timely and adequate written notification to all
parties regarding any such change.
(b) By April 30 of each year beginning in 2005, the Paying Agent will
furnish such report to each Holder of the Certificates of record at any time
during the prior calendar year as to the aggregate of
17
amounts reported pursuant to subclauses (a)(ii), (a)(iii) and (a)(iv) above with
respect to the Certificates, and at the request of the Holders, any other
amounts which would enable such Holders to prepare their tax returns for such
calendar year. Such obligations shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the Paying
Agent to such Holders pursuant to the requirements of the Code.
18
ARTICLE VI
Indemnification
Section 6.01 INDEMNIFICATION OF THE GRANTOR TRUSTEE, THE PAYING
AGENT AND THE CERTIFICATE REGISTRAR. The Trust shall indemnify the Indemnified
Persons for, and will hold them harmless against, any loss, liability or expense
incurred on their part, arising out of, or in connection with, this Agreement,
the Swap Agreement and the Certificates, including the costs and expenses
(including reasonable legal fees and expenses) of defending themselves against
any such claim other than (i) any loss, liability or expense related to such
Indemnified Person's failure to perform such Indemnified Person's duties in
strict compliance with this Agreement (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement) and (ii) any
loss, liability or expense incurred by reason of such Indemnified Person's
willful misfeasance, bad faith or negligence in the performance or
non-performance of duties hereunder or by reason of such Indemnified Person's
reckless disregard of obligations and duties hereunder. Any amounts payable to
an Indemnified Person as set forth herein shall be paid by the Paying Agent to
such Indemnified Person from the Distribution Account. This indemnity shall
survive the resignation or removal of the Grantor Trustee, the Paying Agent or
the Certificate Registrar, as the case may be, and the termination of this
Agreement.
19
ARTICLE VII
Concerning the Grantor Trustee, the Paying Agent and the Certificate Registrar
Section 7.01 DUTIES OF THE GRANTOR TRUSTEE, THE PAYING AGENT AND
THE CERTIFICATE REGISTRAR.
(a) Each of the Grantor Trustee, the Paying Agent and the Certificate
Registrar undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement as duties of such Person.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments which are specifically
required to be furnished to the Grantor Trustee, the Paying Agent or the
Certificate Registrar, as the case may be, pursuant to any provision of this
Agreement, the Grantor Trustee, the Paying Agent or the Certificate Registrar,
as the case may be, shall examine them to determine whether they are in the form
required by this Agreement; provided, however, that none of the Paying Agent,
the Certificate Registrar or the Grantor Trustee shall be responsible for the
accuracy or verification of any calculation provided to it pursuant to this
Agreement.
(c) On each Distribution Date, the Paying Agent shall make monthly
distributions and the final distribution to the Certificateholders from
Available Funds in the Distribution Account as provided in Section 5.01 herein
based on a report prepared by the Underlying Securities Administrator with
respect to such distributions.
(d) No provision of this Agreement shall be construed to relieve the
Grantor Trustee, the Paying Agent or the Certificate Registrar, as the case may
be, 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 Grantor Trustee, the
Paying Agent or the Certificate Registrar, as the case may be, shall be
determined solely by the express provisions of this Agreement, none of
the Paying Agent, the Certificate Registrar or the Grantor Trustee
shall be liable except for the performance of its duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Grantor Trustee, the Paying Agent or the Certificate Registrar, as the
case may be, and, in the absence of bad faith on the part of the
Grantor Trustee, the Paying Agent or the Certificate Registrar, the
Grantor Trustee, the Paying Agent or the Certificate Registrar, as the
case may be, 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 Grantor Trustee, the Paying
Agent or the Certificate Registrar, as the case may be, and conforming
to the requirements of this Agreement;
(ii) None of the Paying Agent, the Certificate Registrar or
the Grantor Trustee shall be liable in its individual capacity for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Grantor Trustee, the Paying Agent or the
Certificate Registrar, as the case may be, unless it shall be proved
that the Grantor Trustee, the Paying Agent or the Certificate
Registrar, as the case may be, was negligent in ascertaining the
pertinent facts;
(iii) None of the Paying Agent, the Certificate Registrar or
the Grantor Trustee shall be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in
20
accordance with the directions of the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 25%
of the Trust Fund, if such action or non-action relates to the time,
method and place of conducting any proceeding for any remedy available
to the Grantor Trustee, the Paying Agent or the Certificate Registrar,
as the case may be, or exercising any trust or other power conferred
upon the Grantor Trustee, the Paying Agent or the Certificate
Registrar, as the case may be, under this Agreement;
(iv) The Paying Agent shall not in any way be liable by reason
of any insufficiency in the Distribution Account unless it is
determined by a court of competent jurisdiction that the Paying Agent's
negligence, negligent failure to act or willful misconduct was the
primary cause of such insufficiency (except to the extent that the
Paying Agent is obligor and has defaulted thereon); and
(v) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Grantor Trustee, the Paying
Agent or the Certificate Registrar be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Grantor Trustee, the Paying Agent
or the Certificate Registrar has been advised of the likelihood of such
loss or damage and regardless of the form of action.
None of the Grantor Trustee, the Paying Agent or the Certificate
Registrar shall 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.
(e) All funds received by the Paying Agent and required to be deposited
in the Distribution Account pursuant to this Agreement will be promptly so
deposited by the Paying Agent.
(f) Except for those actions that the Grantor Trustee, the Paying Agent
or the Certificate Registrar is required expressly to take hereunder, none of
the Grantor Trustee, the Paying Agent or the Certificate Registrar, as the case
may be, shall 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 7.02 CERTAIN MATTERS AFFECTING THE GRANTOR TRUSTEE, THE
PAYING AGENT AND THE CERTIFICATE REGISTRAR. Except as otherwise provided in
Section 7.01:
(i) The Grantor Trustee, the Paying Agent and the Certificate
Registrar may rely and shall be protected in acting or refraining from
acting in reliance on any resolution, certificate of the Depositor, the
Master Servicer, the Underlying Securities Administrator or the
Underlying Trustee, any 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 Grantor Trustee, the Paying Agent and the Certificate
Registrar may consult with counsel and any written 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 written advice or Opinion of Counsel;
(iii) None of the Grantor Trustee, the Paying Agent and the
Certificate Registrar shall be under any obligation to exercise any of
the trusts or powers vested in it by this Agreement,
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other than its obligation to give notices pursuant to this Agreement,
and shall not be under any obligation 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 Grantor Trustee, the Paying Agent and the Certificate Registrar, as
the case may be, reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
(iv) None of the Grantor Trustee, the Paying Agent and the
Certificate Registrar shall 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) None of the Grantor Trustee, the Paying Agent and the
Certificate Registrar shall 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, unless requested in writing to do so
by Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than 25% of the Trust Fund and provided that the
payment within a reasonable time to the Grantor Trustee, the Paying
Agent or the Certificate Registrar, as the case may be, of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Grantor Trustee, the
Paying Agent or the Certificate Registrar, as the case may be,
reasonably assured to the Grantor Trustee, the Paying Agent or the
Certificate Registrar, as the case may be, by the security afforded to
it by the terms of this Agreement. The Grantor Trustee, the Paying
Agent or the Certificate Registrar, as the case may be, may require
reasonable indemnity against such expense or liability as a condition
to taking any such action. The reasonable expense of every such
examination shall be paid pro rata by the Certificateholders requesting
the investigation;
(vi) The Grantor Trustee, the Paying Agent or the Certificate
Registrar, as the case may be, may (to the extent it is authorized
hereunder to so execute or perform) execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or through
its Affiliates, agents or attorneys. The Grantor Trustee, the Paying
Agent or the Certificate Registrar, as the case may be, shall not be
liable or responsible for the misconduct or negligence of any agent or
attorney of the Grantor Trustee, the Paying Agent or the Certificate
Registrar, as the case may be, appointed hereunder by the Grantor
Trustee, the Paying Agent or the Certificate Registrar, as the case may
be, with due care;
(vii) Should the Grantor Trustee, the Paying Agent or the
Certificate Registrar, as the case may be, deem the nature of any
action required on its part, other than a payment or transfer under
Section 3.02 or Section 5.01, to be unclear, the Grantor Trustee, the
Paying Agent or the Certificate Registrar, as the case may be, may
require prior to such action that it be provided by the Depositor with
reasonable further instructions;
(viii) The right of the Grantor Trustee, the Paying Agent or
the Certificate Registrar, as the case may be, to perform any
discretionary act enumerated in this Agreement shall not be construed
as a duty, and the Grantor Trustee, the Paying Agent or the Certificate
Registrar, as the case may be, shall not be accountable for other than
its negligence, bad faith, negligent failure to act or willful
misconduct in the performance of any such act; and
(ix) None of the Certificate Registrar, the Paying Agent and
the Grantor Trustee shall be required to give any bond or surety with
respect to the execution of the trust created hereby or the powers
granted hereunder, except as provided in Section 7.07.
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Section 7.03 GRANTOR TRUSTEE, PAYING AGENT AND CERTIFICATE REGISTRAR
NOT LIABLE FOR CERTIFICATES OR MORTGAGE LOANS. The recitals contained herein and
in the Certificates (other than the signature of the Grantor Trustee, and the
countersignature of the Certificate Registrar, on the Certificates) shall be
taken as the statements of the Depositor, and none of the Paying Agent, the
Certificate Registrar and the Grantor Trustee shall have any responsibility for
their correctness. None of the Certificate Registrar, the Paying Agent and the
Grantor Trustee makes any representation as to the validity or sufficiency of
the Certificates (other than the signature of the Grantor Trustee, and the
countersignature of the Certificate Registrar, on the Certificates). The Grantor
Trustee's signature on the Certificates shall be solely in its capacity as
Grantor Trustee, and shall not constitute the Certificates an obligation of the
Grantor Trustee in any other capacity. The Certificate Registrar's
countersignature on the Certificates shall be solely in its capacity as
Certificate Registrar, and shall not constitute the Certificates an obligation
of the Certificate Registrar in any other capacity. None of the Grantor Trustee,
the Paying Agent or the Certificate Registrar shall 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 with respect to the Underlying Certificates. None of the Grantor
Trustee, the Paying Agent or the Certificate Registrar shall be responsible for
the legality, sufficiency or validity of this Agreement, the Swap Agreement or
any document or instrument relating to this Agreement, the validity of the
execution of this Agreement or of any supplement hereto or instrument of further
assurance by any Person other than it, or the validity, priority, perfection or
sufficiency of the security for the Certificates issued hereunder or intended to
be issued hereunder. None of the Grantor Trustee, the Paying Agent or the
Certificate Registrar shall at any time have any responsibility or liability for
or with respect to the legality, validity and enforceability of any Mortgage or
any Mortgage Loan, or the perfection and priority of any Mortgage or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Trust Fund or its ability to generate the payments to be
distributed to Certificateholders under this Agreement. None of the Grantor
Trustee , the Paying Agent or the Certificate Registrar shall have any
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to record this Agreement.
Section 7.04 GRANTOR TRUSTEE, PAYING AGENT AND CERTIFICATE REGISTRAR
MAY OWN CERTIFICATES. Each of the Grantor Trustee, the Paying Agent and the
Certificate Registrar, respectively, in its individual capacity or in any
capacity other than as Grantor Trustee, Paying Agent and Certificate Registrar,
respectively, hereunder, may become the owner or pledgee of any Certificates
with the same rights it would have if it were not Grantor Trustee, Paying Agent
and Certificate Registrar, respectively, and may otherwise deal with the parties
hereto.
Section 7.05 EXPENSES. The Grantor Trustee, the Paying Agent or the
Certificate Registrar, and any director, officer, employee or agent of such
party, will be entitled to recover from the Distribution Account pursuant to
Section 3.02(b) all reasonable out- of-pocket expenses, disbursements and
advances of such party in connection with any event of default or breach of this
Agreement or any claim or legal action (including any pending or threatened
claim or legal action) incurred or made by such party in the administration of
the trusts hereunder (including the reasonable compensation, expenses and
disbursements of its counsel) except any such expense, disbursement or advance
as may arise from its negligence, negligent failure to act, or intentional
misconduct or which is the responsibility of the Certificateholders or the Trust
Fund hereunder. If funds in the Distribution Account are insufficient therefor,
such party shall recover such expenses, disbursements and advances from the
Depositor. Such compensation and reimbursement obligation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust.
Section 7.06 ELIGIBILITY REQUIREMENTS FOR GRANTOR TRUSTEE, PAYING
AGENT AND CERTIFICATE REGISTRAR. The Grantor Trustee, the Paying Agent and the
Certificate
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Registrar, and any successor Grantor Trustee, successor Paying Agent and
successor Certificate Registrar, 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
$40,000,000 or, in the case of a successor Grantor Trustee, successor Paying
Agent or successor Certificate Registrar, $50,000,000, subject to supervision or
examination by federal or state authority and rated "BBB" or higher by Standard
& Poor's and "Baa2" or higher by Moody's with respect to any outstanding
long-term unsecured unsubordinated debt, and, in the case of a successor Grantor
Trustee, successor Paying Agent or successor Certificate Registrar other than
pursuant to Section 7.10, rated in one of the two highest long-term debt
categories of, or otherwise acceptable to, each of the Rating Agencies. If the
Grantor Trustee, the Paying Agent or the Certificate Registrar 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 7.06 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. In case at any time
the Grantor Trustee, the Paying Agent or the Certificate Registrar shall cease
to be eligible in accordance with the provisions of this Section 7.06, the
Grantor Trustee, the Paying Agent or the Certificate Registrar shall resign
immediately in the manner and with the effect specified in Section 7.08.
Section 7.07 INSURANCE. Each of the Grantor Trustee, the Certificate
Registrar and the Paying Agent, at its own expense, shall at all times maintain
and keep in full force and effect: (i) fidelity insurance, (ii) theft of
documents insurance and (iii) forgery insurance (which may be collectively
satisfied by a "Financial Institution Bond" and/or a "Bankers' Blanket Bond").
All such insurance shall be in amounts, with standard coverage and subject to
deductibles, as are customary for insurance typically maintained by banks or
their affiliates which act as custodians for investor-owned mortgage pools. A
certificate of an officer of the Grantor Trustee, the Certificate Registrar or
the Paying Agent as to such party's compliance with this Section 7.07 shall be
furnished to any Certificateholder upon reasonable written request.
Section 7.08 RESIGNATION AND REMOVAL OF THE GRANTOR TRUSTEE, THE
PAYING AGENT OR THE CERTIFICATE REGISTRAR.
(a) Subject to the terms of this Agreement, any of the Grantor Trustee,
the Certificate Registrar or the Paying Agent may at any time resign and be
discharged from the Trust hereby created by giving written notice thereof to the
Depositor, with a copy to the Rating Agencies. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Grantor Trustee,
Paying Agent or Certificate Registrar, as the case may be, by written
instrument, in triplicate, one copy of which instrument shall be delivered to
each of the resigning Grantor Trustee, Paying Agent or Certificate Registrar, as
the case may be and the successor Grantor Trustee, Paying Agent or Certificate
Registrar, as the case may be. If no successor Grantor Trustee, Paying Agent or
Certificate Registrar, as the case may be, shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Grantor Trustee, Paying Agent or Certificate
Registrar, as the case may be, may assign its duties and obligations hereunder
to a Person who satisfies the requirements of Section 7.06 or may petition any
court of competent jurisdiction for the appointment of a successor Grantor
Trustee, Paying Agent or Certificate Registrar, as the case may be. None of the
Grantor Trustee, the Paying Agent or the Certificate Registrar may resign
hereunder unless it shall also resign as Underlying Trustee, Underlying Paying
Agent and Underlying Securities Administrator, or Underlying Certificate
Registrar, respectively, under the Underlying Pooling and Servicing Agreement.
(b) If at any time the Grantor Trustee, the Paying Agent or the
Certificate Registrar, as the case may be, shall cease to be eligible in
accordance with the provisions of Section 7.06 and shall fail to
24
resign after written request therefor by the Depositor, or if at any time the
Grantor Trustee, the Paying Agent or the Certificate Registrar, as the case may
be, shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Grantor Trustee, the Paying Agent or the
Certificate Registrar, as the case may be, or of its property shall be
appointed, or any public officer shall take charge or control of the Grantor
Trustee, the Paying Agent or the Certificate Registrar, as the case may be, or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor shall promptly remove the Grantor Trustee, the
Paying Agent or the Certificate Registrar, as the case may be, and appoint a
successor Grantor Trustee, successor Paying Agent or successor Certificate
Registrar, as the case may be, by written instrument, in triplicate, one copy of
which instrument shall be delivered to the Grantor Trustee, the Paying Agent or
the Certificate Registrar, as the case may be, so removed and one copy of which
instrument shall be delivered to the successor Grantor Trustee, successor Paying
Agent or successor Certificate Registrar, as the case may be, so appointed.
(c) The Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund may at any time remove
any of the Grantor Trustee, the Paying Agent or the Certificate Registrar and
appoint a successor Grantor Trustee, successor Paying Agent or successor
Certificate Registrar, as the case may be, 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 such party so removed and one copy of which instrument shall be
delivered to the successor so appointed.
(d) No resignation or removal of any of the Grantor Trustee, the Paying
Agent or the Certificate Registrar and appointment of a successor Grantor
Trustee, successor Paying Agent or successor Certificate Registrar, as the case
may be, pursuant to any of the provisions of this Section 7.08 shall become
effective except upon appointment of and acceptance of such appointment by the
successor Grantor Trustee, successor Paying Agent or successor Certificate
Registrar, as the case may be, as provided in Section 7.09.
Section 7.09 SUCCESSOR GRANTOR TRUSTEE, SUCCESSOR PAYING AGENT AND
SUCCESSOR CERTIFICATE REGISTRAR.
(a) Any successor Grantor Trustee, successor Paying Agent or successor
Certificate Registrar appointed as provided in Section 7.08 shall execute,
acknowledge and deliver to the Depositor and to its predecessor Grantor Trustee,
predecessor Paying Agent or predecessor Certificate Registrar, as the case may
be, an instrument accepting such appointment hereunder. The resignation or
removal of the predecessor Grantor Trustee, predecessor Paying Agent or
predecessor Certificate Registrar, as the case may be, shall then become
effective and such successor Grantor Trustee, successor Paying Agent or
successor Certificate Registrar, as the case may be, 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 Grantor Trustee, Paying Agent or Certificate Registrar (as
the case may be) herein. The predecessor Grantor Trustee, predecessor Paying
Agent or predecessor Certificate Registrar, as the case may be, shall, after its
receipt of payment of its outstanding fees and expenses, promptly deliver to the
successor Grantor Trustee, successor Paying Agent or successor Certificate
Registrar, as the case may be, all assets and records of the Trust held by it
hereunder, and the Depositor and the predecessor Grantor Trustee, predecessor
Paying Agent or predecessor Certificate Registrar, as the case may be, 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
Grantor Trustee, successor Paying Agent or successor Certificate Registrar, as
the case may be, all such rights, powers, duties and obligations.
25
(b) No successor Grantor Trustee, successor Paying Agent or successor
Certificate Registrar shall accept appointment as provided in this Section 7.09
unless at the time of such acceptance such successor Grantor Trustee, successor
Paying Agent or successor Certificate Registrar shall be eligible under the
provisions of Section 7.06.
(c) Upon acceptance of appointment by a successor Grantor Trustee,
successor Paying Agent or successor Certificate Registrar as provided in this
Section 7.09, the successor Grantor Trustee, successor Paying Agent or successor
Certificate Registrar (as the case may be) shall mail notice of the succession
of such Grantor Trustee, successor Paying Agent or successor Certificate
Registrar hereunder to all Certificateholders at their addresses as shown in the
Certificate Register and to the Rating Agencies.
Section 7.10 MERGER OR CONSOLIDATION OF GRANTOR TRUSTEE, PAYING
AGENT OR CERTIFICATE REGISTRAR. Any state bank or trust company or national
banking association into which the Grantor Trustee, the Paying Agent or the
Certificate Registrar 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 Grantor
Trustee, the Paying Agent or the Certificate Registrar (as the case may be)
shall be a party, or any state bank or trust company or national banking
association succeeding to all or substantially all of the corporate business of
the Grantor Trustee, the Paying Agent or the Certificate Registrar,
respectively, shall be the successor of the Grantor Trustee, the Paying Agent or
the Certificate Registrar, respectively, hereunder, provided such state bank or
trust company or national banking association shall be eligible under the
provisions of Section 7.06. 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.
Section 7.11 APPOINTMENT OF CO-GRANTOR TRUSTEE OR SEPARATE GRANTOR
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 Grantor Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Grantor Trustee and the Depositor to act as co-grantor trustee or co-grantor
trustees, jointly with the Grantor Trustee, or separate grantor trustee or
separate grantor 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, or any part
thereof, and, subject to the other provisions of this Section 7.11, such powers,
duties, obligations, rights and trusts as the Depositor and the Grantor Trustee
may consider necessary or desirable.
(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 Grantor
Trustee shall have the power to make such appointment without any action by or
consent of the Depositor.
(c) No co-grantor trustee or separate grantor trustee hereunder shall
be required to meet the terms of eligibility as a successor Grantor Trustee
under Section 7.06 hereunder and no notice to Certificateholders of the
appointment of co-grantor trustee(s) or separate grantor trustee(s) shall be
required under Section 7.08 hereof.
(d) In the case of any appointment of a co-grantor trustee or separate
grantor trustee pursuant to this Section 7.11, all rights, powers, duties and
obligations conferred or imposed upon the Grantor Trustee and required to be
conferred on such co-grantor trustee shall be conferred or imposed upon and
exercised or performed by the Grantor Trustee and such separate grantor trustee
or co-grantor trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to
26
be performed, the Grantor Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate grantor trustee
or co-grantor trustee at the direction of the Grantor Trustee.
(e) Any notice, request or other writing given to the Grantor Trustee
shall be deemed to have been given to each of the then separate grantor trustees
and co-grantor trustees, as effectively as if given to each of them. Every
instrument appointing any separate grantor trustee or co-grantor trustee shall
refer to this Agreement and the conditions of this Article VII. Each separate
grantor trustee and co-grantor 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 Grantor 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
Grantor Trustee. Every such instrument shall be filed with the Grantor Trustee.
(f) To the extent not prohibited by law, any separate grantor trustee
or co-grantor trustee may, at any time, request the Grantor 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
grantor trustee or co-grantor 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 Grantor Trustee, to the extent permitted
by law, without the appointment of a new or successor Grantor Trustee.
(g) No grantor trustee under this Agreement shall be personally liable
by reason of any act or omission of another grantor trustee under this
Agreement. The Depositor and the Grantor Trustee acting jointly may at any time
accept the resignation of or remove any separate grantor trustee or co-grantor
trustee.
Section 7.12 FEDERAL INFORMATION RETURNS AND REPORTS TO
CERTIFICATEHOLDERS; GRANTOR TRUST ADMINISTRATION.
(a) The Underlying Securities Administrator, pursuant to Section
9.12(g) of the Underlying Pooling and Servicing Agreement, shall perform its
obligations relating to the Trust in a manner so as to maintain the status of
the Trust Fund as a grantor trust under subpart E, part I of subchapter J of
chapter 1 of the Code and not as an association taxable as a corporation, as a
taxable mortgage pool, or as a partnership and to prevent the imposition of any
federal, state or local income or other tax on the Trust Fund.
(b) The Underlying Securities Administrator shall furnish or cause to
be furnished to holders of the Certificates, and shall file or cause to be filed
with the Internal Revenue Service, together with Form 1041 or such other form as
may be applicable, such information with respect to the income and deductions of
the Trust Fund at the time or times and in the manner required by the Code,
including furnishing the Grantor Trustee with such other customary factual
information to enable Certificateholders to prepare their tax returns, including
information required with respect to computing the accrual of original issue and
market discount.
(c) Notwithstanding any other provisions of this Agreement, the
Underlying Securities Administrator shall comply with all federal withholding
requirements with respect to payments to Certificateholders. The consent of
Certificateholders shall not be required for any such withholding. In the event
the Grantor Trustee or Paying Agent, as applicable, based solely on instructions
from such Certificateholder or other Person, withholds any amount from any
Certificateholder pursuant to federal
27
withholdings requirements, the Grantor Trustee or Paying Agent, as applicable,
shall indicate to such Certificateholder the amount so withheld.
(d) The Underlying Securities Administrator agrees to indemnify the
Trust Fund, the Grantor Trustee, the Paying Agent, the Certificate Registrar and
the Depositor for any taxes and costs including, without limitation, any
reasonable attorneys fees imposed on or incurred by the Trust Fund, the Grantor
Trustee, the Paying Agent, the Certificate Registrar or the Depositor as a
result of a breach of the Underlying Securities Administrator's obligations set
forth in this Section 7.12.
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ARTICLE VIII
Termination
Section 8.01 TERMINATION UPON REPURCHASE BY THE DEPOSITOR OR ITS
DESIGNEE OR LIQUIDATION OF THE MORTGAGE LOANS.
(a) The respective obligations and responsibilities of the Depositor,
the Grantor Trustee, the Paying Agent and the Certificate Registrar created
hereby, other than the obligation of the Paying Agent to make payments to
Certificateholders as hereinafter set forth, shall terminate upon the
termination of the Underlying Pooling and Servicing Agreement or upon the making
of the final payment or other liquidation of the Underlying Certificates, or any
advance with respect thereto.
(b) In no event, however, shall the Trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. James's, living on the date of this Agreement.
(c) The Paying Agent shall give notice of any termination of the Trust
to the Certificateholders, with a copy to the Rating Agencies, upon which the
Certificateholders shall surrender their Certificates to the Certificate
Registrar for payment by the Paying Agent of the final distribution and
cancellation with respect thereto. Such notice shall be given by letter, mailed
not later than the 20th day of the month of such final distribution, and shall
specify (i) the Distribution Date upon which final payment of the Certificates
will be made upon presentation and surrender of the Certificates at the office
of the Certificate Registrar therein designated, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made by the Paying Agent
only upon presentation and surrender of the Certificates at the office of the
Certificate Registrar therein specified.
(d) Upon the presentation and surrender of the Certificates, the Paying
Agent shall distribute to the remaining Certificateholders, in accordance with
their respective interests and based solely upon information provided to it by
the Underlying Securities Administrator and calculations conducted by the
Underlying Securities Administrator with respect thereto, all Available Funds
remaining in the Distribution Account.
(e) If not all of the Certificateholders shall surrender their
Certificates for cancellation within six months after the time specified in the
above-mentioned written notice, then the Paying Agent shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If, within six months after the second notice, not all the Certificates
shall have been surrendered for cancellation, then the Paying Agent may take
appropriate steps, or appoint any agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets which remain
subject to this Agreement.
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ARTICLE IX
Miscellaneous Provisions
Section 9.01 INTENT OF PARTIES. The parties intend that the Trust
Fund shall be treated as a grantor trust for federal income tax purposes and
that the provisions of this Agreement should be construed in furtherance of this
intent.
Section 9.02 ACTION UNDER UNDERLYING DOCUMENTS. In the event that
there are any matters arising under the Underlying Pooling and Servicing
Agreement related to an Underlying Certificate which require the vote or
direction of holders of the Underlying Certificates thereunder, the Grantor
Trustee, as holder of the Underlying Certificates will vote such Underlying
Certificate in accordance with the written instructions received from holders of
Certificates evidencing at least 51% of the Fractional Undivided Interest. In
the absence of any such instructions, the Grantor Trustee will not vote such
Underlying Certificates.
Upon written request, the Certificate Registrar as agent for the
Grantor Trustee will forward to the Certificateholders copies of any
communications received regarding matters arising that require action by holders
of the Underlying Certificates.
Section 9.03 AMENDMENT.
(a) This Agreement may be amended from time to time by the Depositor,
the Grantor Trustee, the Paying Agent and the Certificate Registrar without the
consent of the Swap Counterparty (other than with respect to any amendment
hereto that materially and adversely affects the rights of the Swap Counterparty
hereunder, which amendment shall require the consent of the Swap Counterparty)
and without notice to or the consent of any of the Certificateholders, (i) to
cure any ambiguity, (ii) to correct or supplement any provisions herein that may
be defective or inconsistent with any other provisions herein, (iii) to conform
the terms hereof to the disclosure in the Prospectus or the Prospectus
Supplement (as each such term is defined in the Underlying Pooling and Servicing
Agreement), (iv) to comply with any changes in the Code or (v) to make any other
provisions with respect to matters or questions arising under this Agreement
which shall not be inconsistent with the provisions of this Agreement; provided,
however, that, with regard to clauses (iv) and (v) of this Section 9.03(a), such
action shall not, as evidenced by an Opinion of Independent Counsel, adversely
affect in any material respect the interests of any Certificateholder.
(b) This Agreement may also be amended from time to time by the
Depositor, the Grantor Trustee, the Paying Agent and the Certificate Registrar,
with the consent of the Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund, 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 received on
Mortgage Loans which are required to be distributed on any Certificate, without
the consent of the Holder of such Certificate, (ii) reduce the aforesaid
percentage of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all Certificates then
outstanding, or (iii) result in the imposition of a tax on the Trust Fund or
cause the Trust Fund to fail to be classified as a grantor trust under subpart
E, part I of subchapter J of chapter 1 of the Code, as evidenced by an Opinion
of Counsel which shall be provided to the Grantor Trustee other than at the
Grantor Trustee's expense. Notwithstanding any other provision of this
Agreement, for purposes of the giving or
30
withholding of consents pursuant to this Section 9.03(b), Certificates
registered in the name of or held for the benefit of the Depositor, the Grantor
Trustee, the Paying Agent, the Certificate Registrar or any Affiliate thereof or
nominee thereof shall be entitled to vote their Fractional Undivided Interests
with respect to matters affecting such Certificates.
(c) Promptly after the execution of any such amendment, the Certificate
Registrar, acting as agent on behalf of the Grantor Trustee, shall furnish a
copy of such amendment or written notification of the substance of such
amendment to the Swap Counterparty and each Certificateholder, with a copy to
the Rating Agencies.
(d) In the case of an amendment under Section 9.03(b) above, it shall
not be necessary for the Certificateholders to approve the particular form of
such an amendment. Rather, it shall be sufficient if the Certificateholders
approve the substance of the amendment. 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
Grantor Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement, the
parties hereto shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement. The parties hereto may, but shall not be obligated to, enter into any
such amendment which affects such parties' respective rights, duties or
immunities under this Agreement.
Section 9.04 RECORDATION OF AGREEMENT. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere. The Depositor
shall effect such recordation, at the expense of the Trust and upon the request
in writing of a Certificateholder, but only if such direction is accompanied by
an Opinion of Counsel (provided at the expense of the Certificateholder
requesting recordation) to the effect that such recordation would materially and
beneficially affect the interests of the Certificateholders or is required by
law.
Section 9.05 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.
(a) The death or incapacity of any Certificateholder shall not
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) Except as expressly provided in this Agreement, no
Certificateholders shall have any right to vote 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 establish the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholders be under any liability to any third Person 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, under or with respect to this Agreement against the
Depositor or any successor to any such parties unless (i) such Certificateholder
previously shall have given to the Grantor Trustee a written notice of a
continuing default, as herein provided, (ii) the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 51% of the
Trust Fund shall have made written request upon the Grantor Trustee to institute
such action, suit or
31
proceeding in its own name as Grantor Trustee hereunder and shall have offered
to the Grantor Trustee such reasonable indemnity as it may require against the
costs and expenses and liabilities to be incurred therein or thereby, and (iii)
the Grantor Trustee, for 60 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.
(d) No one or more Certificateholders shall have any right by virtue of
any provision of this Agreement to affect the rights of any other
Certificateholders or to obtain or seek to obtain priority or preference over
any other such Certificateholder, or to enforce any right under this Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 9.05, each and every Certificateholder and the
Grantor Trustee shall be entitled to such relief as can be given either at law
or in equity.
Section 9.06 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 Grantor Trustee and/or, where it is expressly required by
this Agreement, to the Depositor and/or the Paying Agent. 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
Paying Agent, the Grantor Trustee, the Certificate Registrar and the Depositor,
if made in the manner provided in this Section 9.06.
(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 Grantor 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
Grantor Trustee, the Paying Agent, the Certificate Registrar, the Depositor nor
any successor to any such parties 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
Grantor Trustee, the Depositor, the Paying Agent, the Certificate Registrar or
any successor to any 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 of
Certificates evidencing Fractional Undivided Interests have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Certificates owned by the Grantor Trustee, the Paying Agent, the Certificate
Registrar, the Depositor or any Affiliate thereof shall be disregarded, except
as otherwise provided in Section 9.03(b) and except that, in determining whether
the Grantor Trustee, the Paying Agent, the
32
Certificate Registrar and the Depositor and any Affiliate thereof shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Certificates which such party knows to be so
owned shall be so disregarded. Certificates which have been pledged in good
faith to the Grantor Trustee, the Paying Agent, the Certificate Registrar, the
Depositor or any Affiliate thereof may be regarded as outstanding if the pledgor
establishes to the satisfaction of the Paying Agent the pledgor's right to act
with respect to such Certificates and that the pledgor is not an Affiliate of
the Grantor Trustee, the Paying Agent, the Certificate Registrar or the
Depositor, as the case may be.
Section 9.07 GOVERNING LAW. THIS AGREEMENT AND THE CERTIFICATES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS RULES, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 9.08 NOTICES. All demands and notices hereunder shall be in
writing and shall be deemed given when delivered at (including delivery by
facsimile) or mailed by registered mail, return receipt requested, postage
prepaid, or by recognized overnight courier, to (i) in the case of the
Depositor, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Vice
President-Servicing, telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, or to such other address
as may hereafter be furnished to the other parties hereto in writing; (ii) in
the case of the Grantor Trustee, 4 New York Plaza, 6th Floor, New York, New York
10004, Attention: Institutional Trust Services/Global Debt, ▇▇▇▇ ▇▇ Series
2004-AR6, or such other address as may hereafter be furnished to the other
parties hereto in writing; (iii) in the case of the Paying Agent or Certificate
Registrar, at its Corporate Trust Office, or such other address as may hereafter
be furnished to the other parties hereto in writing or (iv) in the case of the
Rating Agencies, ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Attention: Residential Mortgage Surveillance. Any notice delivered to the
Depositor, the Certificate Registrar, the Paying Agent or the Grantor Trustee
under this Agreement shall be effective only upon receipt. Any notice required
or permitted to be mailed to a Certificateholder, unless otherwise provided
herein, shall be given by first-class mail, postage prepaid, at the address of
such Certificateholder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given when mailed, whether or not the
Certificateholder receives such notice.
Section 9.09 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 severed 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 9.10 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.
Section 9.11 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 9.12 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which when so executed and delivered shall be an
original but all of which together shall constitute one and the same instrument.
33
Section 9.13 NOTICE TO RATING AGENCIES. The article and section
headings herein are for convenience of reference only, and shall not limited or
otherwise affect the meaning hereof. The Paying Agent shall promptly provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(1) Any material change or amendment to this Agreement;
(2) The resignation or termination of the Grantor
Trustee, the Paying Agent or the Certificate
Registrar under this Agreement;
(3) The final payment to Certificateholders; and
(4) Any change in the location of the Distribution
Account.
[SIGNATURE PAGE FOLLOWS]
34
IN WITNESS WHEREOF, the Depositor, the Certificate Registrar, the
Paying Agent and the Grantor Trustee have caused their names to be signed hereto
by their respective officers thereunto duly authorized as of the day and year
first above written.
STRUCTURED ASSET MORTGAGE INVESTMENTS
II INC., as Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
JPMORGAN CHASE BANK,
as Grantor Trustee
By: /s/ Pei ▇▇▇ ▇▇▇▇▇
------------------------------------
Name: Pei ▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent and Certificate Registrar
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of September, 2004, before me, a notary public in and
for said State, personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, known to me to be a Vice
President 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/ ▇▇▇▇▇▇▇▇ Sterling_____________
Notary Public
[Notarial Seal]
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of September, 2004, before me, a notary public in and
for said State, personally appeared Pei ▇▇▇ ▇▇▇▇▇, known to me to be an
Assistant Vice President of JPMorgan Chase Bank, 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/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ____________
Notary Public
[Notarial Seal]
37
STATE OF MARYLAND )
) ss.:
COUNTY OF ▇▇▇▇▇▇ )
On the 30th day of September, 2004, before me, a notary public in and
for said State, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, known to me to be an
Assistant Vice President of ▇▇▇▇▇ Fargo Bank, National Association, 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ _____________
Notary Public
[Notarial Seal]
38
EXHIBIT A
FORM OF CLASS A-1B CERTIFICATE
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS MADE WITH RESPECT HERETO AND UNDERLYING REALIZED LOSSES
ALLOCABLE TO THE UNDERLYING CERTIFICATES. 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 GRANTOR
TRUSTEE OR THE PAYING AGENT NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
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 IS
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.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED (ERISA), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, UNLESS THE PROPOSED TRANSFEREE PROVIDES THE GRANTOR TRUSTEE, THE PAYING
AGENT AND THE CERTIFICATE REGISTRAR WITH AN OPINION OF COUNSEL, ADDRESSED TO THE
GRANTOR TRUSTEE, THE MASTER SERVICER, THE PAYING AGENT, THE CERTIFICATE
REGISTRAR, THE DEPOSITOR AND THE UNDERLYING SECURITIES ADMINISTRATOR AND ON
WHICH THEY MAY RELY THAT IS SATISFACTORY TO THE GRANTOR TRUSTEE, THE MASTER
SERVICER, THE UNDERLYING SECURITIES ADMINISTRATOR, THE PAYING AGENT AND THE
CERTIFICATE REGISTRAR, THAT THE PURCHASE OF THE CLASS A-1B CERTIFICATES ON
BEHALF OF SUCH PERSON WILL NOT RESULT IN OR CONSTITUTE A NONEXEMPT PROHIBITED
TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE, IS PERMISSIBLE UNDER
APPLICABLE LAW AND WILL NOT GIVE RISE TO ANY OBLIGATIONS ON THE PART OF THE
DEPOSITOR, THE MASTER SERVICER, THE UNDERLYING SECURITIES ADMINISTRATOR, THE
UNDERLYING TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR OR THE GRANTOR
TRUSTEE IN ADDITION TO THOSE OBLIGATIONS SET FORTH IN THE UNDERLYING POOLING AND
SERVICING AGREEMENT.
THE CERTIFICATES ARE SUBJECT TO THE RESTRICTIONS IN SECTION 4.05 OF THE
AGREEMENT.
39
Certificate No. __ Variable Pass-Through Rate
Grantor Trust Class A-1B
Date of Grantor Trust Agreement: Aggregate Initial Current Principal
September 30, 2004 Amount of this Certificate as of the
Cut-off Date: $78,000,000
Cut-off Date: September 1, 2004
First Distribution Date: Initial Current Principal Amount of
October 19, 2004 this Certificate as of the Cut-off
Date: $78,000,000
Assumed Final Distribution Date: CUSIP: 86359L FL 8
February 19, 2035
STRUCTURED ASSET MORTGAGE INVESTMENTS II GRANTOR TRUST 2004-AR6
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-AR6
evidencing a fractional undivided interest in the
distributions allocable to the Grantor Trust Class A-1B
Certificates with respect to a Trust Fund consisting primarily
of the Underlying Certificates sold by STRUCTURED ASSET
MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Structured Asset Mortgage
Investments II Inc. (the "Depositor"), the Paying Agent, the Certificate
Registrar or the Grantor 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 the Depositor, the Paying
Agent, the Certificate Registrar, the Grantor Trustee or any of their respective
affiliates or any other person. None of the Depositor, the Master Servicer or
the Grantor Trustee nor any of their respective 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 the
Fractional Undivided Interest evidenced hereby in the beneficial ownership
interest of Certificates of the same Class as this Certificate in a trust (the
"Trust Fund") consisting primarily of the Class A-1B certificates (the
"Underlying Certificates") sold by the Depositor. The Trust Fund was created
pursuant to the Grantor Trust Agreement, dated as of September 30, 2004 (the
"Agreement"), among the Depositor, as depositor, ▇▇▇▇▇ Fargo Bank, National
Association, as paying agent (in such capacity, the Paying Agent") and
certificate registrar (in such capacity, the "Certificate Registrar") and
JPMorgan Chase Bank, as grantor trustee (the "Grantor 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.
40
Interest on this Certificate will accrue during the period from and
including the preceding Distribution Date (or in the case of the first
Distribution Date, from the Closing Date) to and including the day prior to the
current Distribution Date on the Current Principal Amount hereof at a per annum
rate equal to the Pass-Through Rate set forth in the Agreement. The Paying Agent
will distribute on the 19th day of each month, or, if such 19th 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
Business Day immediately preceding such Distribution Date, an amount equal to
the product of the Fractional Undivided 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. The Assumed
Final Distribution Date is the Distribution Date in the month immediately
following the month of the latest scheduled maturity date of any Mortgage Loan
and is not likely to be the date on which the Current Principal Amount of this
Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Paying Agent 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 Paying Agent in writing, as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Paying Agent of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Certificate Registrar 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 Underlying Realized
Losses on the Mortgage Loans allocable to the Underlying Certificates (and,
correspondingly, to the Certificates). This Certificate is one of a duly
authorized issue of Certificates designated as set forth on the face hereof (the
"Certificates"), issued in one Class. The Certificates, in the aggregate,
evidence the entire beneficial ownership interest in the Trust Fund formed
pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that none
of the Grantor Trustee, the Paying Agent and the Certificate Registrar is 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 Grantor Trustee, the Paying Agent and the
Certificate Registrar with respect thereto.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Agreement from time
to time by the Depositor and the Grantor Trustee, the Paying Agent and the
Certificate Registrar with the consent of the Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than 51% of the Trust Fund.
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 or the consent of the Swap
Counterparty, or without the consent of the Holders of any of the Certificates
but with the consent of the Swap Counterparty.
41
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 Certificate Registrar for such purposes,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to, the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates in authorized denominations representing a like aggregate
Fractional Undivided Interest will be issued to the designated transferee. The
Certificates are issuable only as registered Certificates without coupons in the
Class 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 Fractional Undivided 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 Grantor, the Paying Agent and the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. The Depositor, the Grantor
Trustee, the Paying Agent and the Certificate Registrar and any agent of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of Depositor, the Grantor Trustee, the
Paying Agent and the Certificate Registrar or any such agent shall be affected
by notice to the contrary. The obligations created by the Agreement and the
Trust Fund created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the termination of the Underlying Pooling and Servicing Agreement
or upon the making of the final payment or other liquidation with respect to the
Underlying Certificates. In no event, however, will the Trust Fund 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 Certificate Registrar by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement, or be valid for any
purpose.
[SIGNATURE PAGE FOLLOWS]
42
IN WITNESS WHEREOF, the Grantor Trustee has caused this Certificate to
be duly executed.
Dated: September 30, 2004 JPMORGAN CHASE BANK,
Not in its individual capacity but
solely as Grantor Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1B Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
Authorized Signatory
43
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ____________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Fractional Undivided
Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the
Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated: _________________________________________
Signature by or on behalf of assignor
__________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _____________________________________ for the
account of _______________________________ account number __________, or, if
mailed by check, to _________________________________________. Applicable
statements should be mailed to
_________________________________________________________. This information is
provided by _______________________________________, the assignee named above,
or ____________________________, as its agent.
44
EXHIBIT B
Copies of Underlying Certificates
[provided upon request]
45
EXHIBIT C
Swap Agreement
[provided upon request]
46
EXHIBIT D
Underlying Pooling and Servicing Agreement
[provided upon request]
47