Exhibit 3.1
EXECUTION COPY
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STRUCTURED ASSET MORTGAGE INVESTMENT II INC.,
as Depositor
WILMINGTON TRUST COMPANY,
as Owner Trustee
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in the individual capacity, but solely in its capacity as Securities
Administrator,
as Certificate Registrar and Certificate Paying Agent
_______________________________________
AMENDED AND RESTATED
TRUST AGREEMENT
Dated as of September 30, 2004
_______________________________________
Trust Certificates,
Series 2004-1
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Table of Contents
Page
- i -
ARTICLE I Definitions...................................................1
Section 1.01. Definitions.............................................1
Section 1.02. Other Definitional Provisions...........................1
ARTICLE II Organization..................................................3
Section 2.01. Name....................................................3
Section 2.02. Office..................................................3
Section 2.03. Purposes and Powers.....................................3
Section 2.04. Appointment of Owner Trustee............................4
Section 2.05. Initial Capital Contribution of Owner Trust Estate......4
Section 2.06. Declaration of Trust....................................4
Section 2.07. Liability of the Holders of the Certificates............4
Section 2.08. Title to Trust Property.................................5
Section 2.09. Situs of Trust..........................................5
Section 2.10. Representations and Warranties of the Depositor.........5
Section 2.11. Investment Company......................................6
ARTICLE III Conveyance of the Mortgage Loans; Certificates................7
Section 3.01. Initial Ownership.......................................7
Section 3.02. The Certificates........................................7
Section 3.03. Authentication of Certificates..........................7
Section 3.04. Registration of and Limitations on Transfer and
Exchange of Certificates................................7
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates......10
Section 3.06. Persons Deemed Certificateholders......................10
Section 3.07. Access to List of Certificateholders' Names and
Addresses..............................................10
Section 3.08. Maintenance of Office or Agency........................10
Section 3.09. Certificate Paying Agent...............................11
ARTICLE IV Authority and Duties of Owner Trustee........................13
Section 4.01. General Authority......................................13
Section 4.02. General Duties.........................................13
Section 4.03. Action upon Instruction................................13
Section 4.04. No Duties Except as Specified under Specified
Documents or in Instructions...........................14
Section 4.05. Restrictions...........................................14
Section 4.06. Prior Notice to Certificateholders with Respect to
Certain Matters........................................14
Section 4.07. Action by Certificateholders with Respect to
Certain Matters........................................15
Section 4.08. Action by Certificateholders with Respect to
Bankruptcy.............................................15
Section 4.09. Restrictions on Certificateholders' Power..............15
Section 4.10. Majority Control.......................................15
Section 4.11. Optional Redemption....................................15
ARTICLE V Application of Trust Funds...................................17
Section 5.01. Distributions..........................................17
Section 5.02. Method of Payment......................................17
Section 5.03. Tax Returns............................................17
Section 5.04. Statements to Certificateholders.......................18
ARTICLE VI Concerning the Owner Trustee.................................19
Section 6.01. Acceptance of Trusts and Duties........................19
Section 6.02. Furnishing of Documents................................20
Section 6.03. Representations and Warranties.........................20
Section 6.04. Reliance; Advice of Counsel............................21
Section 6.05. Not Acting in Individual Capacity......................21
Section 6.06. Owner Trustee Not Liable for Certificates or
Related Documents......................................21
Section 6.07. Owner Trustee May Own Certificates and Notes...........22
Section 6.08. Payments from Owner Trust Estate.......................22
Section 6.09. Doing Business in Other Jurisdictions..................22
Section 6.10. Liability of Certificate Registrar and Certificate
Paying Agent...........................................22
ARTICLE VII Compensation of Owner Trustee................................23
Section 7.01. Owner Trustee's Fees and Expenses......................23
Section 7.02. Indemnification........................................23
ARTICLE VIII Termination of Trust Agreement...............................25
Section 8.01. Termination of Trust Agreement.........................25
ARTICLE IX Successor Owner Trustees and Additional Owner Trustees.......27
Section 9.01. Eligibility Requirements for Owner Trustee.............27
Section 9.02. Replacement of Owner Trustee...........................27
Section 9.03. Successor Owner Trustee................................27
Section 9.04. Merger or Consolidation of Owner Trustee...............28
Section 9.05. Appointment of Co-Trustee or Separate Trustee..........28
ARTICLE X Miscellaneous................................................30
Section 10.01. Amendments.............................................30
Section 10.02. No Legal Title to Owner Trust Estate...................31
Section 10.03. Limitations on Rights of Others........................31
Section 10.04. Notices................................................32
Section 10.05. Severability...........................................32
Section 10.06. Separate Counterparts..................................32
Section 10.07. Successors and Assigns.................................32
Section 10.08. No Petition............................................32
Section 10.09. No Recourse............................................33
Section 10.10. Headings...............................................33
Section 10.11. GOVERNING LAW..........................................33
Section 10.12. Integration............................................33
Section 10.13. Obligations............................................33
EXHIBITS
Exhibit A - Form of Certificate ...........................................A-1
Exhibit B - Certificate of Trust of MortgageIT Trust 2004-1 ...............B-1
Exhibit C - Form of Rule 144A Investment Representation ...................C-1
Exhibit D - Form of Certificate of Non-Foreign Status .....................D-1
Exhibit E - Form of Investment Letter .....................................E-1
Exhibit F - Form of Transferor Certificate ................................F-1
Exhibit G - Form of ERISA Letter ..........................................G-1
This Amended and Restated Trust Agreement, dated as of September 30,
2004 (as amended from time to time, this "Trust Agreement"), among Structured
Asset Mortgage Investments II Inc., a Delaware corporation, as depositor (the
"Depositor"), Wilmington Trust Company, a Delaware banking corporation, as
owner trustee (the "Owner Trustee") and ▇▇▇▇▇ Fargo Bank, National
Association, not individually but acting solely as Securities Administrator,
as certificate registrar (the "Certificate Registrar") and as certificate
paying agent (in such capacity, the "Certificate Paying Agent").
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the
Depositor and the Owner Trustee agree as follows:
WHEREAS, the Depositor and the Owner Trustee have previously entered
into the Trust Agreement dated as of September 22, 2004 (the "Trust
Agreement").
WHEREAS, the parties hereto desire to amend the terms of and restate
the Trust Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Owner Trustee and the Securities Administrator, solely for
purposes of its agreement to serve as Certificate Registrar and Certificate
Paying Agent, agree as follows:
ARTICLE I
Definitions
Section 1.01. Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the
meanings assigned to such terms in Appendix A to the Indenture, dated
September 30, 2004, among MortgageIT Trust 2004-1, as Issuer, Deutsche Bank
National Trust Company, not individually as Indenture Trustee, and ▇▇▇▇▇
Fargo Bank, National Association, as Securities Administrator, which is
incorporated by reference herein. All other capitalized terms used herein
shall have the meanings specified herein.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Trust Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Trust Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Trust Agreement or in any such certificate or other document,
and accounting terms partly defined in this Trust Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Trust Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Trust Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Trust Agreement shall refer to this Trust Agreement as a
whole and not to any particular provision of this Trust Agreement; Article,
Section and Exhibit references contained in this Trust Agreement are
references to Articles, Sections and Exhibits in or to this Trust Agreement
unless otherwise specified; and the term "including" shall mean "including
without limitation".
(d) The definitions contained in this Trust Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
ARTICLE II
Organization
Section 2.01. Name. The trust created hereby (the "Trust") shall be
known as "MortgageIT Trust 2004-1", in which name the Owner Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and ▇▇▇ and be sued.
Section 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
Section 2.03. Purposes and Powers. The purpose of the Trust is to engage
in the following activities:
(i) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Trust Agreement and to sell the Notes and the
Certificates;
(ii) to pay the organizational, start-up and transactional expenses of the
Trust;
(iii) to assign, grant, transfer, pledge and convey the Mortgage Loans
pursuant to the Indenture and to hold, manage and distribute to the
Certificateholder pursuant to Section 5.01 herein, any portion of the
Mortgage Loans released from the Lien of, and remitted to the Trust
pursuant to the Indenture;
(iv) to enter into and perform its obligations under the Basic Documents to
which it is to be a party;
(v) if directed by holders of Certificates representing more than 50% of
the beneficial interests in the Trust, sell the Trust Estate subsequent
to the discharge of the Indenture, all for the benefit of the holders
of the Certificates;
(vi) to engage in those activities, including entering into agreements, that
are necessary, suitable or convenient to accomplish the foregoing or
are incidental thereto or connected therewith; and
(vii) subject to compliance with the Basic Documents, to engage in such other
activities as may be required in connection with conservation of the
Owner Trust Estate and the making of distributions to the
Certificateholder and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Trust
Agreement or the Basic Documents.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Owner Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the
Trust, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of
the foregoing contribution, which shall constitute the initial corpus of the
Trust and shall be deposited in the Certificate Distribution Account. The
Owner Trustee also acknowledges on behalf of the Trust the receipt in trust
of the Mortgage Loans and the rights with respect to the representations and
warranties made by the Seller under the Mortgage Loan Purchase Agreement
which shall constitute the Owner Trust Estate.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it shall hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust
constitute a "statutory trust" under the Statutory Trust Statute and that
this Trust Agreement constitute the governing instrument of such statutory
trust. It is the intention of the parties hereto that, for federal and state
income and state and local franchise tax purposes, the Trust (A) shall not be
treated as (i) an association subject separately to taxation as a
corporation, (ii) a "publicly traded partnership" as defined in Treasury
Regulation Section 1.7704-1 or (iii) a "taxable mortgage pool" as defined in
Section 7701(i) of the Code, (B) shall, as of the Closing Date, be
disregarded as a separate entity (and if at any other time the Trust
Certificates are held by more than one person for federal income tax
purposes, shall be treated as a partnership), and (C) that each Class of
Notes shall be debt, and the provisions of this Agreement shall be
interpreted to further this intention. Except as otherwise provided in this
Trust Agreement, the rights of the Certificateholders will be those of equity
owners of the Trust. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth herein and in the Statutory
Trust Statute with respect to accomplishing the purposes of the Trust.
Section 2.07. Liability of the Holders of the Certificates. The Holders
of the Certificates shall be jointly and severally liable directly to and
shall indemnify any injured party for all losses, claims, damages,
liabilities and expenses of the Trust and the Owner Trustee (including
Expenses, to the extent not paid out of the Owner Trust Estate) to the extent
that the Holders of the Certificates would be liable if the Trust were a
corporation, and the Holders of the Certificates were common stockholders in
the corporation, under Delaware corporate law; provided, however, that the
Holders of the Certificates shall not be liable for payments required to be
made on the Notes or the Certificates, or for any losses incurred by a
Certificateholder in the capacity of an investor in the Certificates or a
Noteholder in the capacity of an investor in the Notes. The Holders of the
Certificates shall be liable for and shall promptly pay any entity level
taxes imposed on the Trust. In addition, any third party creditors of the
Trust (other than in connection with the obligations described in the second
preceding sentence for which the Holders of the Certificates shall not be
liable) shall be deemed third party beneficiaries of this paragraph. The
obligations of the Holders of the Certificates under this paragraph shall be
evidenced by the Certificates.
Section 2.08. Title to Trust Property. Except with respect to the
Mortgage Loans, which will be assigned of record to the Indenture Trustee
pursuant to the Indenture, legal title to the Owner Trust Estate shall be
vested at all times in the Trust as a separate legal entity except where
applicable law in any jurisdiction requires title to any part of the Owner
Trust Estate to be vested in a trustee or trustees, in which case title shall
be deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section 2.09. Situs of Trust. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee
on behalf of the Trust shall be located in the State of Delaware. The Trust
shall not have any employees in any state other than Delaware; provided,
however, that nothing herein shall restrict or prohibit the Owner Trustee
from having employees within or without the State of Delaware or taking
actions outside the State of Delaware in order to comply with Section 2.03.
Payments will be received by the Trust only in Delaware, Maryland, Minnesota
or New York, and payments will be made by the Trust only from Delaware,
Maryland, Minnesota or New York. The only office of the Trust maintained by
the Owner Trustee will be at the Corporate Trust Office in Delaware or
California.
Section 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The Depositor is duly organized and validly existing as a corporation
in good standing under the laws of the State of Delaware, with power
and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted.
(ii) The Depositor is duly qualified to do business as a foreign corporation
in good standing and has obtained all necessary licenses and approvals
in all jurisdictions in which the ownership or lease of its property or
the conduct of its business shall require such qualifications and in
which the failure to so qualify would have a material adverse effect on
the business, properties, assets or condition (financial or other) of
the Depositor.
(iii) The Depositor has the power and authority to execute and deliver this
Trust Agreement and to carry out its terms; the Depositor has full
power and authority to convey and assign the property to be conveyed
and assigned to and deposited with the Trust as part of the Owner Trust
Estate and the Depositor has duly authorized such conveyance and
assignment and deposit to the Trust by all necessary corporate action;
and the execution, delivery and performance of this Trust Agreement
have been duly authorized by the Depositor by all necessary corporate
action.
(iv) The consummation of the transactions contemplated by this Trust
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a
party or by which it is bound; nor result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to
the Basic Documents); nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the
Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(v) The Trust is not required to register as an investment company under
the Investment Company Act and is not under the control of a Person
required to so register.
Section 2.11. Investment Company. Neither the Depositor nor any holder
of a Certificate shall take any action which would cause the Trust to become
an "investment company" which would be required to register under the
Investment Company Act.
ARTICLE III
Conveyance of the Mortgage Loans;
Certificates
Section 3.01. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.01 and until the
conveyance of the Mortgage Loans pursuant to Section 2.01 of the Sale and
Servicing Agreement and the issuance of the Certificates, and thereafter
except as otherwise permitted hereunder, the Depositor shall be the sole
Certificateholder.
Section 3.02. The Certificates. The Certificates shall be issued in the
form of one or more Certificates, each representing not less than a 10%
Certificate Percentage Interest. The Certificates shall initially be
registered in the name of MortgageIT Holdings, Inc. The Certificates shall
be executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Owner Trustee and authenticated in the manner
provided in Section 3.03. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall
have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefit of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be
so authorized prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of authentication and delivery of
such Certificates. A Person shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such Person's acceptance of a Certificate duly registered in
such Person's name, pursuant to Section 3.04.
A transferee of a Certificate shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a
Certificate duly registered in such transferee's name pursuant to and upon
satisfaction of the conditions set forth in Section 3.04.
Section 3.03. Authentication of Certificates. The Owner Trustee shall
cause all Certificates issued hereunder to be executed and authenticated on
behalf of the Trust, authenticated and delivered to or upon the written order
of the Depositor, signed by its chairman of the board, its president or any
vice president, without further corporate action by the Depositor, in
authorized denominations. No Certificate shall entitle its holder to any
benefit under this Trust Agreement or be valid for any purpose unless there
shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Owner
Trustee or the Certificate Registrar by manual signature; such authentication
shall constitute conclusive evidence that such Certificate shall have been
duly authenticated and delivered hereunder. All Certificates shall be dated
the date of their authentication.
Section 3.04. Registration of and Limitations on Transfer and Exchange of
Certificates. The Certificate Registrar shall keep or cause to be kept, 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. If the Certificate Registrar resigns or is removed, the Owner
Trustee shall appoint a successor Certificate Registrar.
Subject to satisfaction of the conditions set forth below with respect
to the Certificate, upon surrender for registration of transfer of any
Certificate at the office or agency maintained pursuant to Section 3.08, the
Owner Trustee or the Certificate Registrar shall execute, authenticate and
deliver in the name of the designated transferee or transferees, one or more
new Certificates in authorized denominations of a like aggregate amount dated
the date of authentication by the Owner Trustee or the Certificate Registrar.
At the option of a Holder, Certificates may be exchanged for other
Certificates of authorized denominations of a like aggregate amount upon
surrender of the Certificates to be exchanged at the office or agency
maintained pursuant to Section 3.08.
Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Certificate surrendered
for registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Certificate Registrar in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
No Person shall become a Certificateholder until it shall establish its
non-foreign status by submitting to the Certificate Paying Agent an IRS Form
W-9 and the Certificate of Non-Foreign Status set forth in Exhibit D hereto.
No transfer, sale, pledge or other disposition of a Certificate shall
be made unless such transfer, sale, pledge or other disposition is exempt
from the registration requirements of the Securities Act and any applicable
state securities laws or is made in accordance with said Act and laws. In the
event of any such transfer, the Certificate Registrar or the Depositor shall
prior to such transfer require the transferee to execute (A) either (i) an
investment letter in substantially the form attached hereto as Exhibit C (or
in such form and substance reasonably satisfactory to the Certificate
Registrar and the Depositor) which investment letter shall not be an expense
of the Trust, the Owner Trustee, the Certificate Registrar, the Master
Servicer, the Securities Administrator or the Depositor and which investment
letter states that, among other things, such transferee (a) is a "qualified
institutional buyer" as defined under Rule 144A, acting for its own account
or the accounts of other "qualified institutional buyers" as defined under
Rule 144A, and (b) is aware that the proposed transferor intends to rely on
the exemption from registration requirements under the Securities Act of
1933, as amended, provided by Rule 144A or (ii) (a) a written Opinion of
Counsel acceptable to and in form and substance satisfactory to the
Certificate Registrar and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from said Act and laws or is being made pursuant to said Act and
laws, which Opinion of Counsel shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Master Servicer, the Securities
Administrator or the Depositor and (b) the transferee executes a
representation letter, substantially in the form of Exhibit F to the
Agreement, and transferor executes a representation letter, substantially in
the form of Exhibit E hereto, each acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor certifying the
facts surrounding such transfer, which representation letters shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Master Servicer, the Securities Administrator or the Depositor and (B) the
Certificate of Non-Foreign Status (in substantially the form attached hereto
as Exhibit D) acceptable to and in form and substance reasonably satisfactory
to the Certificate Registrar and the Depositor, which certificate shall not
be an expense of the Trust, the Owner Trustee, the Certificate Registrar or
the Depositor. The Holder of a Certificate desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the
Certificate Registrar, the Master Servicer, the Securities Administrator and
the Depositor against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of Certificates or any interest therein shall be made to
any Person unless the Depositor, the Owner Trustee and the Certificate
Registrar are provided with an Opinion of Counsel which establishes to the
satisfaction of the Depositor, the Owner Trustee, the Certificate Registrar
and the Master Servicer that the purchase of Certificates is permissible
under applicable law, will not constitute or result in any prohibited
transaction under ERISA or Section 4975 of the Code and will not subject the
Depositor, the Owner Trustee, the Certificate Registrar, the Securities
Administrator or the Master Servicer to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the
Code) in addition to those undertaken in this Agreement, which Opinion of
Counsel shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar, the Securities Administrator or the Master Servicer.
In lieu of such Opinion of Counsel, a Person acquiring such Certificates may
provide a certification in the form of Exhibit G to this Agreement, which the
Depositor, the Owner Trustee, the Certificate Registrar, the Securities
Administrator and the Master Servicer may rely upon without further inquiry
or investigation. Neither an Opinion of Counsel nor a certification will be
required in connection with the initial transfers of any such Certificate by
the Depositor to the Seller and by the Seller to MortgageIT Holdings, Inc.
(in which case, the Depositor, the Seller and MortgageIT Holdings, Inc., as
applicable, shall be deemed to have represented that such party is not a Plan
or a Person investing Plan Assets of any Plan).
No offer, sale, transfer, pledge, hypothecation or other disposition
(including any pledge, sale or transfer under a repurchase transaction or
securities loan) of any Certificate shall be made to any transferee unless,
prior to such disposition, the proposed transferor delivers to the Owner
Trustee and the Certificate Registrar an Opinion of Counsel, rendered by a
law firm generally recognized to be qualified to opine concerning the tax
aspects of asset securitization, to the effect that such transfer (including
any disposition permitted following any default under any pledge or
repurchase transaction) will not cause the Trust to be (i) treated as an
association taxable as a corporation for federal income tax and relevant
state income and franchise tax purposes, (ii) taxable as a taxable mortgage
pool as defined in Section 7701(i) of the Code or (iii) taxable as a
"publicly traded partnership" as defined in Treasury Regulation section
1.7704-1 for federal income tax purposes and relevant state franchise or
income tax purposes. Notwithstanding the foregoing, the provisions of this
paragraph shall not apply to the initial transfers of the Certificates from
the Issuer to the Depositor, the Depositor to the Seller and the Seller to
MortgageIT Holdings, Inc.
No offer, sale, transfer or other disposition (including pledge) of any
Certificate shall be made to any affiliate of the Depositor or the Issuer,
other than the initial transfer of the Certificates to the Depositor and the
subsequent transfer of the Certificates to the Seller.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar,
or if the Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (b) there shall be
delivered to the Certificate Registrar and the Owner Trustee such security or
indemnity as may be required by them to save each of them harmless, then in
the absence of notice to the Certificate Registrar or the Owner Trustee that
such Certificate has been acquired by a bona fide purchaser, the Owner
Trustee shall execute on behalf of the Trust and the Owner Trustee or the
Certificate Registrar, shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and denomination. In connection with the issuance
of any new Certificate under this Section 3.05, the Owner Trustee or the
Certificate Registrar may require the payment of a sum sufficient to cover
any expenses of the Owner Trustee or the Certificate Registrar (including
fees and expenses of counsel) and any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section 3.05 shall constitute conclusive evidence of
ownership in the Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
Section 3.06. Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer, the Owner
Trustee, the Certificate Registrar or any Certificate Paying Agent may treat
the Person in whose name any Certificate is registered in the Certificate
Register as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 5.02 and for all other purposes whatsoever,
and none of the Trust, the Owner Trustee, the Certificate Registrar or any
Certificate Paying Agent shall be bound by any notice to the contrary.
Section 3.07. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish or cause to be furnished to the
Depositor, the Certificate Paying Agent or the Owner Trustee, within 15 days
after receipt by the Certificate Registrar of a written request therefor from
the Depositor, the Certificate Paying Agent or the Owner Trustee, a list, in
such form as the Depositor, the Certificate Paying Agent or the Owner
Trustee, as the case may be, may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date. Each
Holder, by receiving and holding a Certificate, shall be deemed to have
agreed not to hold any of the Trust, the Depositor, the Certificate Paying
Agent, the Certificate Registrar or the Owner Trustee accountable by reason
of the disclosure of its name and address, regardless of the source from
which such information was derived.
Section 3.08. Maintenance of Office or Agency. The Owner Trustee on
behalf of the Trust, shall maintain an office or offices or agency or
agencies where Certificates may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Owner Trustee in
respect of the Certificates and the Basic Documents may be delivered. The
Owner Trustee initially designates the Corporate Trust Office of the
Securities Administrator as its office for purposes of delivery of notices.
The Owner Trustee shall give prompt written notice to the Depositor, the
Certificate Paying Agent, the Certificate Registrar and the
Certificateholders of any change in the location of the Certificate Register
or any such office or agency.
Section 3.09. Certificate Paying Agent. (a) The Certificate
Paying Agent shall make distributions to Certificateholders from the
Certificate Distribution Account on behalf of the Trust in accordance with
the provisions of the Certificates and Section 5.01 hereof from payments
remitted to the Certificate Paying Agent by the Securities Administrator
pursuant to Section 3.05 of the Indenture. The Trust hereby appoints the
Securities Administrator as Certificate Paying Agent and the Securities
Administrator hereby accepts such appointment and further agrees that it will
be bound by the provisions of this Trust Agreement relating to the
Certificate Paying Agent and shall:
(i) hold all sums held by it for the payment of amounts due with respect to
the Certificates in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust of which a
Responsible Officer of the Certificate Paying Agent has actual
knowledge in the making of any payment required to be made with respect
to the Certificates;
(iii) at any time during the continuance of any such default, upon the
written request of the Owner Trustee forthwith pay to the Owner Trustee
on behalf of the Trust all sums so held in Trust by such Certificate
Paying Agent;
(iv) not resign from its position as Certificate Paying Agent except that it
shall immediately resign as Certificate Paying Agent and forthwith pay
to the Owner Trustee on behalf of the Trust all sums held by it in
trust for the payment of Certificates if at any time it ceases to meet
the standards under this Section 3.09 required to be met by the
Certificate Paying Agent at the time of its appointment;
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Certificates of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith; and
(vi) not institute bankruptcy proceedings against the Issuer in connection
with this Trust Agreement.
(b) The Trust may revoke such power and remove the Certificate Paying
Agent if it determines in its sole discretion that the Certificate Paying
Agent shall have failed to perform its obligations under this Trust Agreement
in any material respect. In the event that ▇▇▇▇▇ Fargo Bank, National
Association shall no longer be the Securities Administrator and the
Certificate Paying Agent under this Trust Agreement and Paying Agent under
the Indenture, the Owner Trustee shall appoint a successor to act as
Certificate Paying Agent (which shall be a bank or trust company) and which
shall also be the successor Paying Agent under the Indenture. The Owner
Trustee shall cause such successor Certificate Paying Agent or any additional
Certificate Paying Agent appointed by the Owner Trustee to execute and
deliver to the Owner Trustee an instrument to the effect set forth in Section
3.09(a) as it relates to the Certificate Paying Agent. The Certificate Paying
Agent shall return all unclaimed funds to the Trust and upon removal of a
Certificate Paying Agent such Certificate Paying Agent shall also return all
funds in its possession to the Trust. The provisions of Sections 6.01, 6.04,
6.05, 6.06, 6.07, 6.08 and 7.01 shall apply to the Certificate Paying Agent
to the same extent applicable to the Owner Trustee except where the context
requires otherwise. Any reference in this Agreement to the Certificate Paying
Agent shall include any co-paying agent unless the context requires otherwise.
(c) The Certificate Paying Agent shall establish and maintain with itself
a trust account (the "Certificate Distribution Account") in which the
Certificate Paying Agent shall deposit, on the same day as it is received
from the Securities Administrator, each remittance received by the
Certificate Paying Agent with respect to payments made pursuant to the
Indenture. The Certificate Paying Agent shall make all distributions to
Certificates, from moneys on deposit in the Certificate Distribution Account,
in accordance with Section 5.01 hereof. The funds in the Certificate
Distribution Account shall be held uninvested.
ARTICLE IV
Authority and Duties of Owner Trustee
Section 4.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to
or contemplated by the Basic Documents to which the Trust is to be a party
and any amendment or other agreement or instrument described herein, as
evidenced conclusively by the Owner Trustee's execution thereof. In addition
to the foregoing, the Owner Trustee is authorized, but shall not be
obligated, except as otherwise provided in this Trust Agreement, to take all
actions required of the Trust pursuant to the Basic Documents.
Section 4.02. General Duties. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant
to the terms of this Trust Agreement and the Basic Documents to which the
Trust is a party and to administer the Trust in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Trust Agreement.
Section 4.03. Action upon Instruction. (a) Subject to Article IV and
in accordance with the terms of the Basic Documents, the Certificateholders
may by written instruction direct the Owner Trustee in the management of the
Trust. Such direction may be exercised at any time by written instruction of
the Certificateholders pursuant to Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document if the
Owner Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of the
Owner Trustee or is contrary to the terms hereof or of any Basic Document or
is otherwise contrary to law.
(c) Whenever the Owner Trustee is required to decide between alternative
courses of action permitted or required by the terms of this Trust Agreement
or under any Basic Document, or in the event that the Owner Trustee is unsure
as to the application of any provision of this Trust Agreement or any Basic
Document or any such provision is ambiguous as to its application, or is, or
appears to be, in conflict with any other applicable provision, or in the
event that this Trust Agreement permits any determination by the Owner
Trustee or is silent or is incomplete as to the course of action that the
Owner Trustee is required to take with respect to a particular set of facts,
the Owner Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and to the extent the
Owner Trustee acts in good faith in accordance with any written instruction
of the Certificateholders, the Owner Trustee shall not be liable on account
of such action to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action not inconsistent with this Trust
Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for such action or inaction.
Section 4.04. No Duties Except as Specified under Specified Documents or
in Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Owner Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Owner Trustee is a party, except as
expressly provided (i) in accordance with the powers granted to and the
authority conferred upon the Owner Trustee pursuant to this Trust Agreement,
(ii) in accordance with the Basic Documents and (iii) in accordance with any
document or instruction delivered to the Owner Trustee pursuant to Section
4.03; and no implied duties or obligations shall be read into this Trust
Agreement or any Basic Document against the Owner Trustee. The Owner Trustee
shall have no responsibility for filing any financing or continuation
statement many public office at anytime or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder or to
prepare or file any Securities and Exchange Commission filing for the Trust
or to record this Trust Agreement or any Basic Document. The Owner Trustee
nevertheless agrees that it will, at its own cost and expense, promptly take
all action as may be necessary to discharge any liens on any part of the
Owner Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the
Owner Trust Estate.
Section 4.05. Restrictions. (a) The Owner Trustee or the Depositor
(or an Affiliate thereof) shall not take any action (x) that is inconsistent
with the purposes of the Trust set forth in Section 2.03, (y) that, to the
actual knowledge of the Owner Trustee based on an Opinion of Counsel rendered
by a law firm generally recognized to be qualified to opine concerning the
tax aspects of asset securitization, would result in the Trust becoming
taxable as a corporation for federal income tax purposes or (z) would result
in the amendment or modification of the Basic Documents or this Trust
Agreement. The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the Trust's
properties or assets, including those included in the Trust Estate, to any
person unless (a) it shall have received an Opinion of Counsel rendered by a
law firm generally recognized to be qualified to opine concerning the tax
aspects of asset securitization to the effect that such transaction will not
have any material adverse tax consequence to the Trust or any
Certificateholder and (b) such conveyance or transfer shall not violate the
provisions of Section 3.16(b) of the Indenture.
Section 4.06. Prior Notice to Certificateholders with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not
take action unless at least 30 days before the taking of such action, the
Owner Trustee shall have notified the Certificateholders in writing of the
proposed action and the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims or
lawsuits brought in connection with the collection of cash distributions due
and owing under the Mortgage Loans) and the compromise of any action, claim
or lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of cash distributions due
and owing under the Mortgage Loans);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Statutory
Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the
Certificateholders; and
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Trust
Agreement of a successor Certificate Registrar or Certificate Paying Agent or
the consent to the assignment by the Note Registrar, Paying Agent, Indenture
Trustee, Certificate Registrar or Certificate Paying Agent of its obligations
under the Indenture or this Trust Agreement, as applicable.
Section 4.07. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the
direction of the Certificateholders to, except as expressly provided in the
Basic Documents, sell the Mortgage Loans after the termination of the
Indenture. The Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed by the
Certificateholders.
Section 4.08. Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary proceeding
in bankruptcy relating to the Trust without the unanimous prior approval of
all Certificateholders and the consent of the Noteholders and the Owner
Trustee and the delivery to the Owner Trustee by each such Certificateholder
of a certificate certifying that such Certificateholder reasonably believes
that the Trust is insolvent. This paragraph shall survive for one year
following termination of this Trust Agreement.
Section 4.09. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or to refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Trust Agreement or
any of the Basic Documents or would be contrary to Section 2.03, nor shall
the Owner Trustee be obligated to follow any such direction, if given.
Section 4.10. Majority Control. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Trust Agreement
may be taken by the Holders of Certificates evidencing not less than a
majority Percentage Interest of the Certificates. Except as expressly
provided herein, any written notice of the Certificateholders delivered
pursuant to this Trust Agreement shall be effective if signed by Holders of
Certificates evidencing not less than a majority Percentage Interest of the
Certificates at the time of the delivery of such notice.
Section 4.11. Optional Redemption. Upon receipt of written instructions
provided to the Owner Trustee by the Holder of the Certificates, or, if there
is no single Holder, the Majority Certificateholder, the Owner Trustee shall
cause the Issuer to redeem the Notes in accordance with Section 8.07 of the
Indenture and shall provide all necessary notices on behalf of the Issuer to
effect the foregoing, provided that such Holder or Holders shall deposit with
the Securities Administrator an amount equal to the aggregate redemption
price specified under Section 8.07 of the Indenture. The Owner Trustee shall
not have the power to exercise the right of the Issuer to redeem the Notes
pursuant to Section 8.07 of the Indenture, except as provided above.
ARTICLE V
Application of Trust Funds
Section 5.01. Distributions. (a) On each Payment Date, the Certificate
Paying Agent shall in accordance with the directions of the Securities
Administrator given pursuant to the Indenture distribute to the
Certificateholders, on a pro rata basis based on the Certificate Percentage
Interests thereof, all funds on deposit in the Certificate Distribution
Account and available therefor (as provided in Section 3.05 of the Indenture)
for such Payment Date as reduced by any amount owing to the Owner Trustee
hereunder and any Expenses of the Trust remaining unpaid.
(b) In the event that any withholding tax is imposed on the distributions
(or allocations of income) to a Certificateholder, such tax shall reduce the
amount otherwise distributable to the Certificateholder in accordance with
this Section 5.01. The Certificate Paying Agent is hereby authorized and
directed to retain or cause to be retained from amounts otherwise
distributable to the Certificateholders sufficient funds for the payment of
any tax that is legally owed by the Trust (but such authorization shall not
prevent the Owner Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings). The amount of any withholding tax
imposed with respect to a Certificateholder shall be treated as cash
distributed to such Certificateholder at the time it is withheld by the
Certificate Paying Agent and remitted to the appropriate taxing authority. If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the
Certificate Paying Agent may in its sole discretion withhold such amounts in
accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the
creditors of the Trust, including the Noteholders.
Section 5.02. Method of Payment. Subject to Section 8.01(c),
distributions required to be made to Certificateholders on any Payment Date
as provided in Section 5.01 shall be made to each Certificateholder of record
on the preceding Record Date by wire transfer, in immediately available
funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have
provided to the Certificate Registrar appropriate written instructions at
least five Business Days prior to such Payment Date or, if not, by check
mailed to such Certificateholder at the address of such Holder appearing in
the Certificate Register.
Section 5.03. Tax Returns. The Securities Administrator shall (a)
maintain (or cause to be maintained) the books of the Trust on a calendar
year basis using the accrual method of accounting, (b) deliver (or cause to
be delivered) to each Noteholder and Certificateholder as may be required by
the Code and applicable Treasury Regulations, such information as may be
required to enable each Certificateholder to prepare its federal and state
income tax returns, (c) prepare and file or cause to be prepared and filed
such tax returns relating to the Trust as may be required by the Code and
applicable Treasury Regulations (making such elections as may from time to
time be required or appropriate under any applicable state or federal
statutes, rules or regulations) and (d) collect or cause to be collected any
withholding tax as described in and in accordance with Section 5.01 of this
Trust Agreement with respect to income or distributions to Certificateholders
and prepare or cause to be prepared the appropriate forms relating thereto;
provided, however, that the Securities Administrator shall not be required to
compute the Issuer's gross income except to the extent it can do so without
unreasonable effort or expense based upon income statements furnished to it
and provided, further, that the Securities Administrator shall not be
required to prepare and file partnership tax returns on behalf of the Issuer
unless the Securities Administrator receives (i) an Opinion of Counsel
reasonably satisfactory to it (which shall not be at the Securities
Administrator's expense, but shall be at the expense of the Depositor or
other party furnishing such opinion) as to the necessity of such filings, and
(ii) reasonable additional compensation for the preparation and filing of
such additional returns. The Owner Trustee hereby grants permission to the
Securities Administrator to sign all tax and information returns prepared by
the Securities Administrator pursuant to this Section 5.03 at the request of
the Securities Administrator, and in doing so shall rely entirely upon, and
shall have no liability for information or calculations provided by, the
Securities Administrator.
Section 5.04. Statements to Certificateholders. On each Payment Date,
the Securities Administrator shall make available to each Certificateholder
the statement or statements provided to the Owner Trustee by the Securities
Administrator pursuant to Section 7.05 of the Indenture with respect to such
Payment Date.
ARTICLE VI
Concerning the Owner Trustee
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Trust Agreement. The
Owner Trustee and the Certificate Paying Agent also agree to disburse all
moneys actually received by it constituting part of the Owner Trust Estate
upon the terms of the Basic Documents and this Trust Agreement. The Owner
Trustee shall not be answerable or accountable hereunder or under any Basic
Document under any circumstances, except (i) for its own willful misconduct,
gross negligence or bad faith or grossly negligent failure to act or (ii) in
the case of the inaccuracy of any representation or warranty contained in
Section 6.03 expressly made by the Owner Trustee. In particular, but not by
way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) The Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Certificateholders permitted under this Trust Agreement;
(b) No provision of this Trust Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights, duties or powers
hereunder or under any Basic Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to it;
(c) Under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(d) The Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Trust Agreement or for the due execution
hereof by the Depositor or for the form, character, genuineness, sufficiency,
value or validity of any of the Owner Trust Estate, or for or in respect of
the validity or sufficiency of the Basic Documents, the Notes, the
Certificates, other than the certificate of authentication on the
Certificates, if executed by the Owner Trustee and the Owner Trustee shall in
no event assume or incur any liability, duty, or obligation to any Noteholder
or to any Certificateholder, other than as expressly provided for herein or
expressly agreed to in the Basic Documents;
(e) The execution, delivery, authentication and performance by it of this
Trust Agreement will not require the authorization, consent or approval of,
the giving of notice to, the filing or registration with, or the taking of
any other action with respect to, any governmental authority or agency;
(f) The Owner Trustee shall not be liable for the default or misconduct
of the Depositor, Indenture Trustee, Certificate Registrar or the Master
Servicer under any of the Basic Documents or otherwise and the Owner Trustee
shall have no obligation or liability to perform the obligations of the Trust
under this Trust Agreement or the Basic Documents that are required to be
performed by the Indenture Trustee under the Indenture or the Seller under
the Mortgage Loan Purchase Agreement.
(g) The Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it or duties imposed by this Trust Agreement, or
to institute, conduct or defend any litigation under this Trust Agreement or
otherwise or in relation to this Trust Agreement or any Basic Document, at
the request, order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner
Trustee to perform any discretionary act enumerated in this Trust Agreement
or in any Basic Document shall not be construed as a duty, and the Owner
Trustee shall not be answerable for other than its gross negligence or
willful misconduct in the performance of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish
to the Securityholders promptly upon receipt of a written reasonable request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Trust under the Basic Documents.
Section 6.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Trust Agreement;
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Trust Agreement, and this Trust
Agreement will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order binding
on it, or constitute any default under its charter documents or bylaws or any
indenture, mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound;
(d) This Trust Agreement assuming due authorization, execution and
delivery by the Owner Trustee and the Depositor, constitutes a valid, legal
and binding obligation of the Owner Trustee, enforceable against it in
accordance with the terms hereof subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general principles of
equity, regardless of whether such enforcement is considered in a proceeding
in equity or at law;
(e) The Owner Trustee is not in default with respect to any order or
decree of any court or any order, regulation or demand of any Federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Owner Trustee or its properties or might have consequences
that would materially adversely affect its performance hereunder; and
(f) No litigation is pending or, to the best of the Owner Trustee's
knowledge, threatened against the Owner Trustee which would prohibit its
entering into this Trust Agreement or performing its obligations under this
Trust Agreement.
Section 6.04. Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion,
note, or other document or paper believed by it to be genuine and believed by
it to be signed by the proper party or parties. The Owner Trustee may accept
a certified copy of a resolution of the board of directors or other governing
body of any corporate party as conclusive evidence that such resolution has
been duly adopted by such body and that the same is in full force and effect.
As to any fact or matter the method of determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by
the treasurer or other authorized officers of the relevant party, as to such
fact or matter and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith
in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in the
performance of its duties and obligations under this Trust Agreement or the
Basic Documents, the Owner Trustee (i) may act directly or through its
agents, attorneys, custodians or nominees (including persons acting under a
power of attorney) pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents, attorneys, custodians or nominees (including persons acting under a
power of attorney) if such persons have been selected by the Owner Trustee
with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted
in good faith by it in accordance with the opinion or advice of any such
counsel, accountants or other such Persons and not contrary to this Trust
Agreement or any Basic Document.
Section 6.05. Not Acting in Individual Capacity. Except as provided in
this Article VI, in accepting the trusts hereby created Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by
reason of the transactions contemplated by this Trust Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or
satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates or Related
Documents. The recitals contained herein and in the Certificates (other than
the signatures of the Owner Trustee on the Certificates) shall be taken as
the statements of the Depositor, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Trust Agreement, of
any Basic Document or of the Certificates (other than the signatures of the
Owner Trustee on the Certificates) or the Notes, or of any Related Documents,
or of MERS or the MERS® System. The Owner Trustee shall at no time have any
responsibility or liability with respect to the sufficiency of the Owner
Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Trust Agreement or the Noteholders under the
Indenture, including compliance by the Depositor or the Seller with any
warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation, or any
action of the Certificate Paying Agent, the Certificate Registrar, the
Indenture Trustee or the Securities Administrator taken in the name of the
Owner Trustee.
Section 6.07. Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may, subject to Section 3.04,
become the owner or pledgee of Certificates or Notes and may deal with the
Depositor, the Seller, the Certificate Paying Agent, the Certificate
Registrar and the Indenture Trustee in transactions with the same rights as
it would have if it were not Owner Trustee.
Section 6.08. Payments from Owner Trust Estate. All payments to be made
by the Owner Trustee under this Trust Agreement or any of the Basic Documents
to which the Owner Trustee is a party shall be made only from the income and
proceeds of the Owner Trust Estate or from other amounts required to be
provided by the Certificateholders and only to the extent that the Owner
Trust shall have received income or proceeds from the Owner Trust Estate or
the Certificateholders to make such payments in accordance with the terms
hereof. Wilmington Trust Company, in its individual capacity, shall not be
liable for any amounts payable under this Trust Agreement or any of the Basic
Documents to which the Owner Trustee is a party.
Section 6.09. Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither Wilmington Trust Company
nor the Owner Trustee shall be required to take any action in any
jurisdiction other than in the State of Delaware if the taking of such action
will, even after the appointment of a co-trustee or separate trustee in
accordance with Section 9.05 hereof, (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration
with or the taking of any other action in respect of, any state or other
governmental authority or agency of any jurisdiction other than the State of
Delaware; (ii) result in any fee, tax or other governmental charge under the
laws of the State of Delaware becoming payable by Wilmington Trust Company;
or (iii) subject Wilmington Trust Company to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising
from acts unrelated to the consummation of the transactions by Wilmington
Trust Company or the Owner Trustee, as the case may be, contemplated hereby.
Section 6.10. Liability of Certificate Registrar and Certificate Paying
Agent. All provisions affording protection or rights to or limiting the
liability of the Owner Trustee, including the provisions of this Agreement
permitting the Owner Trustee to resign, merge or consolidate, shall inure as
well to the Certificate Registrar and Certificate Paying Agent.
Section 6.11. Derivative Contracts. (a) At the direction of the
Seller, the Owner Trustee shall, on behalf of the Trust, enter into
derivative contracts for the benefit of the Certificates; provided however
the counterparty to such derivative contract shall not be an Affiliate of the
Depositor. Any acquisition of a derivative contract shall be accompanied by
(i) an appropriate amendment to this Agreement, and (ii) any Opinion of
Counsel required by Section 10.01.
(b) All collections, proceeds and other amounts in respect of the
derivative contracts payable by the derivative counterparty shall be
distributed to the Certificates on the Payment Date following receipt thereof
by the Certificate Paying Agent.
(c) Any derivative contract that provides for any payment obligation
on the part of the Trust must (i) be without recourse to the assets of the
Trust, (ii) contain a non-petition covenant provision from the derivative
counterparty, (iii) limit payment dates thereunder for payments, if any, by
the Trust to Payment Dates (iv) contain a provision limiting any cash
payments due to the derivative counterparty on any, day under such derivative
contract solely to funds available therefor in the Certificate Distribution
Account available to make payments to the Holders of the Certificates on such
Payment Date, and (v) provide for copies of all notices and correspondence to
be provided to the Certificate Paying Agent.
(d) Each derivative contract must (i) provide for the direct payment
of any amounts by the derivative counterparty thereunder to the Certificate
Distribution Account at least one Business Day prior to the related Payment
Date, (ii) contain an assignment of all of the Trust's rights (but none of
its obligations) under such derivative contract to the Owner Trustee on
behalf the Certificateholders and shall include an express consent to the
derivative counterparty to such assignment, (iii) provide that in the event
of the occurrence of an Event of Default, such derivative contract shall
terminate upon the direction of a 50.01% or greater Percentage Interest of
the Certificates, and (iv) prohibit the derivative counterparty from
"setting-off' or "netting" other obligations of the Trust and its Affiliates
against such derivative counterparty's payment obligations thereunder.
(e) The Seller shall determine, in its sole discretion, whether any
derivative contract conforms to the requirements of Section 6.11(c) and (d).
(f) Neither the Seller nor the Depositor shall have any direct or
indirect obligation under the derivative contracts.
ARTICLE VII
Compensation of Owner Trustee
Section 7.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon by the Owner Trustee and the Depositor before the date
hereof pursuant to the Fee Agreement. In the event that the Depositor fails
to pay such fees on any Payment Date, the Owner Trustee shall be entitled to
such fee from funds on deposit in the Payment Account prior to any
distributions to the Noteholders on such Payment Date. Additionally, the
Owner Trustee shall be reimbursed from amounts on deposit in the Payment
Account, in accordance with Section 4.05(a)(x) of the Sale and Servicing
Agreement for its reasonable expenses hereunder and under the Basic
Documents, including the reasonable compensation, expenses and disbursements
of such agents, representatives, experts and counsel as the Owner Trustee may
reasonably employ in connection with the exercise and performance of its
rights and its duties hereunder and under the Basic Documents.
Section 7.02. Indemnification. The Depositor shall indemnify, defend and
hold harmless the Owner Trustee, the Certificate Registrar and the
Certificate Paying Agent, solely in its capacity as Certificate Registrar and
Certificate Paying Agent, and their respective successors, assigns, agents
and servants (collectively, the "Indemnified Parties") from and against, any
and all liabilities, obligations, losses, damages, taxes, claims, actions and
suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature
whatsoever (collectively, "Expenses") which may at any time be imposed on,
incurred by, or asserted against any Indemnified Party in any way relating to
or arising out of this Trust Agreement, the Basic Documents, the Owner Trust
Estate, the administration of the Owner Trust Estate or the action or
inaction of the Owner Trustee, the Certificate Registrar and the Certificate
Paying Agent, solely in its capacity as Certificate Paying Agent, hereunder,
provided, that:
(i) the Depositor shall not be liable for or required to indemnify an
Indemnified Party, as applicable, from and against Expenses arising or
resulting from such Indemnified Party's own willful misconduct, gross
negligence or bad faith or, as to the Owner Trustee, as a result of any
inaccuracy of a representation or warranty of the Owner Trustee
contained in Section 6.03 expressly made by the Owner Trustee;
(ii) with respect to any such claim, the Indemnified Party shall have given
the Depositor written notice thereof promptly after the Indemnified
Party shall have actual knowledge thereof; provided, however, that
failure to give such notice shall not affect the indemnification of the
Indemnified Party except to the extent the Depositor is materially
prejudiced by such failure;
(iii) while maintaining control over its own defense, the Depositor shall
consult with the Indemnified Party in preparing such defense; and
(iv) notwithstanding anything in this Agreement to the contrary, the
Depositor shall not be liable for settlement of any claim by an
Indemnified Party entered into without the prior consent of the
Depositor which consent shall not be unreasonably withheld.
The indemnities contained in this Section shall survive the resignation
or termination of the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent or the termination of this Trust Agreement. In
addition, upon written notice to the Owner Trustee, the Certificate Registrar
or the Certificate Paying Agent and with the consent of the Owner Trustee,
the Certificate Registrar or the Certificate Paying Agent which consent shall
not be unreasonably withheld, the Depositor has the right to assume the
defense of any claim, action or proceeding against the Owner Trustee, the
Certificate Registrar or the Certificate Paying Agent.
ARTICLE VIII
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement. (a) This Trust Agreement
(other than Article VII) and the Trust shall terminate and be of no further
force or effect upon the earlier of (i) the final distribution of all moneys
or other property or proceeds of the Owner Trust Estate in accordance with
the terms of the Indenture and this Trust Agreement and (ii) the distribution
of all of the assets of the Owner Trust Estate, in accordance with written
instructions provided to the Owner Trustee by the Majority Certificateholder,
following the optional redemption of the Notes by the Certificateholder or
Majority Certificateholder, as applicable, pursuant to Section 8.07 of the
Indenture; provided in each case that all amounts owing to the Noteholders to
the extent payable from the Owner Trust Estate or proceeds thereof have been
paid in full and that all obligations under the Indenture have been
discharged. The bankruptcy, liquidation, dissolution, death or incapacity of
any Certificateholder shall not (x) operate to terminate this Trust Agreement
or the Trust or (y) entitle such Certificateholder's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or the Owner
Trust Estate or (z) otherwise affect the rights, obligations and liabilities
of the parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date
upon which Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution and
cancellation, shall be given by the Certificate Paying Agent by letter to
Certificateholders mailed within five Business Days of receipt of notice of
the final payment on the Notes from the Securities Administrator, stating (i)
the Payment Date upon or with respect to which final payment of the
Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Certificate Paying Agent therein
designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the Certificates
at the office of the Certificate Payment Agent therein specified. The
Certificate Paying Agent shall give such notice to the Owner Trustee and the
Certificate Registrar at the time such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates, the Certificate Paying
Agent shall cause to be distributed to Certificateholders amounts
distributable on such Payment Date pursuant to Section 5.01.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Certificate 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. Subject to applicable laws with respect to
escheat of funds, if within one year following the Payment Date on which
final payment of the Certificates was to have been made pursuant to Section
3.03 of the Indenture, all the Certificates shall not have been surrendered
for cancellation, the Certificate Paying Agent may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Trust Agreement. Any funds remaining in the Certificate
Distribution Account after exhaustion of such remedies shall be distributed
by the Certificate Paying Agent to the Depositor.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with
the provisions of Section 3810(c) of the Statutory Trust Statute.
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation satisfying the provisions of
Section 3807(a) of the Statutory Trust Statute; authorized to exercise
corporate trust powers; having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and having (or having a parent that has) a rating of at least
Baa3 by Moody's and/or at least BBB- by Standard and Poor's or is otherwise
acceptable to the Rating Agencies. If such corporation shall publish reports
of condition at least annually pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. In case at any time the Owner Trustee shall cease
to be eligible in accordance with the provisions of this Section 9.01, the
Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at any
time resign and be discharged from the trusts hereby created by giving 30
days prior written notice thereof to the Depositor. Upon receiving such
notice of resignation, the Depositor shall promptly appoint a successor Owner
Trustee, by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Owner Trustee and to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.01 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Depositor may remove the Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 9.03 and payment of all fees and expenses
owed to the outgoing Owner Trustee. The Depositor shall provide notice of
such resignation or removal of the Owner Trustee to each of the Rating
Agencies.
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to
the Indenture Trustee and to its predecessor Owner Trustee an instrument
accepting such appointment under this Trust Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become
effective, and such successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Trust Agreement, with like effect
as if originally named as Owner Trustee. The predecessor Owner Trustee shall
upon payment of its fees and expenses deliver to the successor Owner Trustee
all documents and statements and monies held by it under this Trust
Agreement; and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully
and certainly vesting and confirming in the successor Owner Trustee all such
rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, the Owner Trustee shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies.
Section 9.04. Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Trust Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Owner Trust Estate may at the time be located, the
Owner Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons to act as co-trustee, jointly with
the Owner Trustee, or as separate trustee or trustees, of all or any part of
the Owner Trust Estate, and to vest in such Person, in such capacity, such
title to the Trust or any part thereof and, subject to the other provisions
of this Section, such powers, duties, obligations, rights and trusts as the
Owner Trustee may consider necessary or desirable. No co-trustee or separate
trustee under this Trust Agreement shall be required to meet the terms of
eligibility as a successor Owner Trustee pursuant to Section 9.01 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed upon
the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Owner Trust
Estate or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(b) No trustee under this Trust Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Trust
Agreement; and
(c) The Owner Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Trust
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Trust Agreement, specifically including
every provision of this Trust Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Owner Trustee. Each such
instrument shall be filed with the Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Trust Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed,
all of its estates, properties, rights, remedies and trusts shall vest in and
be exercised by the Owner Trustee, to the extent permitted by law, without
the appointment of a new or successor co-trustee or separate trustee.
ARTICLE X
Miscellaneous
Section 10.01. Amendments. (a) This Trust Agreement may be amended from
time to time by the parties hereto as specified in this Section, provided
that any amendment, except as provided in subparagraph (e) below, be
accompanied by an Opinion of Counsel addressed to the Owner Trustee, the
Certificate Registrar and the Certificate Paying Agent and obtained by the
Depositor to the effect that such amendment (i) complies with the provisions
of this Section and (ii) would not cause the Trust to be subject to an entity
level tax for federal income tax purposes.
(b) If the purpose of the amendment (as detailed therein) is to correct
any mistake, eliminate any inconsistency, cure any ambiguity or deal with any
matter not covered (i.e. to give effect to the intent of the parties and, if
applicable, to the expectations of the Holders), it shall not be necessary to
obtain the consent of any Noteholders or Certificateholders, but the Owner
Trustee, the Certificate Registrar and the Certificate Paying Agent shall be
furnished with (A) a letter from each of the Rating Agencies that the
amendment will not result in the downgrading or withdrawal of the rating then
assigned to any Note or the rating then assigned to any Note or (B) an
Opinion of Counsel obtained by the Depositor to the effect that such action
will not adversely affect in any material respect the interests of any
Noteholders or Certificateholders.
(c) If the purpose of the amendment is to prevent the imposition of any
federal or state taxes at any time that any Security is outstanding, it shall
not be necessary to obtain the consent of any Noteholders or
Certificateholders, but the Owner Trustee, the Certificate Registrar and the
Certificate Paying Agent shall be furnished with an Opinion of Counsel
obtained by the Depositor that such amendment is necessary or helpful to
prevent the imposition of such taxes and is not materially adverse to any
Noteholders or Certificateholders.
(d) If the purpose of the amendment is to add or eliminate or change any
provision of the Trust Agreement other than as contemplated in (b) and (c)
above, the amendment shall require (A) an Opinion of Counsel obtained by the
Depositor to the effect that such action will not adversely affect in any
material respect the interests of any Noteholders or Certificateholders and
(B) either (a) a letter from each of the Rating Agencies that the amendment
will not result in the downgrading or withdrawal of the rating then assigned
to any Note or (b) the consent of Holders of Certificates evidencing a
majority Percentage Interest of the Certificates and the consent of
Noteholders representing at least 51% of the Note Principal Balance of the
Notes; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments received that are
required to be distributed on any Certificate without the consent of the
related Certificateholder, or (ii) reduce the aforesaid percentage of
Certificates the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all such Certificates then
outstanding.
(e) If the purpose of the amendment is to provide for the holding of any
of the Certificates in book-entry form, it shall require the consent of
Holders of all such Certificates then outstanding; provided, that the Opinion
of Counsel specified in subparagraph (a) above shall not be required.
(f) If the purpose of the amendment is to provide for the issuance of
additional certificates representing an interest in the Trust, it shall not
be necessary to obtain the consent of any Noteholders or Certificateholders,
but the Owner Trustee, the Certificate Registrar and the Certificate Paying
Agent shall be furnished with (A) an Opinion of Counsel obtained by the
Depositor to the effect that such action will not adversely affect in any
material respect the interests of any Noteholders or Certificateholders and
(B) a letter from each of the Rating Agencies that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to any
Notes.
(g) Promptly after the execution of any such amendment or consent, the
Depositor shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and the
Rating Agencies. It shall not be necessary for the consent of
Certificateholders, Noteholders or the Indenture Trustee pursuant to this
Section 10.01 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents (and any other
consents of Certificateholders provided for in this Trust Agreement or in any
other Basic Document) and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any agreement to
which the Trust is a party, other than this Trust Agreement, the Owner
Trustee, the Certificate Registrar and the Certificate Paying Agent shall be
entitled to receive and conclusively rely upon an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the documents
subject to such amendment and that all conditions precedent in the Basic
Documents for the execution and delivery thereof by the Trust or the Owner
Trustee, as the case may be, have been satisfied.
(i) No amendment or agreement affecting the rights or duties of the
Certificate Registrar or the Certificate Paying Agent may be entered into
without the consent of the affected party.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State of the State of Delaware.
Section 10.02. No Legal Title to Owner Trust Estate. The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate solely by virtue of their status as a Certificateholder. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided beneficial interest therein only in accordance with Articles
V and VIII. No transfer, by operation of law or otherwise, of any right,
title or interest of the Certificateholders to and in their ownership
interest in the Owner Trust Estate shall operate to terminate this Trust
Agreement or the trusts hereunder or entitle any transferee to an accounting
or to the transfer to it of legal title to any part of the Owner Trust Estate.
Section 10.03. Limitations on Rights of Others. Except for Section 2.07,
the provisions of this Trust Agreement are solely for the benefit of the
Owner Trustee, the Depositor, the Certificateholders and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Trust Agreement (other than Section 2.07), whether express or
implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Owner Trust Estate or under or in
respect of this Trust Agreement or any covenants, conditions or provisions
contained herein.
Section 10.04. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt, to the Owner Trustee at: Wilmington Trust Company,
▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
Attention: Corporate Trust Administration; to the Depositor at: Structured
Asset Mortgage Investments II Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇; Attention: Legal; to the Indenture Trustee, the Certificate Registrar
and the Certificate Paying Agent at it's Corporate Trust Office; to Standard
& Poor's at: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; to ▇▇▇▇▇'▇ Investors
Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; or, as
to each party, at such other address as shall be designated by such party in
a written notice to each other party.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Trust Agreement shall be conclusively presumed to
have been duly given, whether or not the Certificateholder receives such
notice.
(c) A copy of any notice delivered to the Owner Trustee or the Trust
shall also be delivered to the Depositor.
Section 10.05. Severability. Any provision of this Trust Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 10.06. Separate Counterparts. This Trust Agreement may be
executed by the parties hereto in separate counterparts, each of which when
so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 10.07. Successors and Assigns. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, each of the Depositor, the Owner Trustee and its successors,
and each Certificateholder and its successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a Certificateholder shall bind the successors and
assigns of such Certificateholder.
Section 10.08. No Petition. The Owner Trustee, by entering into this
Trust Agreement and each Certificateholder, by accepting a Certificate,
hereby covenant and agree that they will not at any time institute against
the Depositor or the Trust, or join in any institution against the Depositor
or the Trust of, any bankruptcy proceedings under any United States federal
or state bankruptcy or similar law in connection with any obligations to the
Certificates, the Notes, this Trust Agreement or any of the Basic Documents.
This Section shall survive for one year following the termination of this
Trust Agreement.
Section 10.09. No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, the Seller, the Owner Trustee, the Indenture
Trustee, the Certificate Registrar, the Certificate Paying Agent or any
Affiliate thereof and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Trust
Agreement, the Certificates or the Basic Documents.
Section 10.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. Integration. This Trust Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof
and supersedes all prior agreements and understandings pertaining thereto.
Section 10.13. Obligations. The execution and delivery of this Trust
Agreement by ▇▇▇▇▇ Fargo Bank, National Association is not in its individual
capacity but solely in its capacity as Securities Administrator, and solely
for purposes of its appointment and agreement to serve as Certificate
Registrar and Certificate Paying Agent. The Securities Administrator shall
have no duties or obligations under this Agreement except for those duties
expressly set forth in this Agreement as duties of the Certificate Registrar
or Certificate Paying Agent, and no implied duties shall be read into this
Agreement on the part of the Securities Administrator (or Certificate Paying
Agent or Certificate Registrar). In entering into this Agreement and with
respect to all matters arising under this Agreement, the Securities
Administrator shall enjoy and be protected by all of the rights, powers,
benefits, immunities, indemnities and other protections granted to it under
Article VI of the Indenture, whether acting in its capacity as Certificate
Registrar or as Certificate Paying Agent.
IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
STRUCTURED ASSET MORTGAGE INVESTMENT II INC.,
as Depositor
By:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
WILMINGTON TRUST COMPANY,
as Owner Trustee
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Financial
Services Officer
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
acting not individually but solely as
Securities Administrator, Certificate
Registrar and Certificate Paying Agent
By: ________________
Name:
Title:
EXHIBIT A
Form of Certificate
[Face]
THIS CERTIFICATE IS SUBORDINATE TO THE NOTES AS DESCRIBED IN THE
INDENTURE.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN OPINION OF COUNSEL AS DESCRIBED IN THE TRUST
AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING
AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER U.S. LAW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT
AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.04 OF THE TRUST AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER FROM THE
TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE"), OR A PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF ANY SUCH PLAN, OR (ii) IF THIS CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN SUBJECT TO ERISA, OR SECTION
4975 OF THE CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR
A TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER PERSON WHO IS USING THE ASSETS OF
ANY SUCH PLAN TO EFFECT SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT
THAT THE PURCHASE OF CERTIFICATES IS PERMISSIBLE UNDER APPLICABLE LAW, WILL
NOT CONSTITUTE OR RESULT IN ANY PROHIBITED TRANSACTION UNDER ERISA OR SECTION
4975 OF THE CODE AND WILL NOT SUBJECT THE DEPOSITOR, THE OWNER TRUSTEE, THE
CERTIFICATE REGISTRAR OR THE MASTER SERVICER TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA OR SECTION 4975 OF THE
CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE TRUST AGREEMENT, WHICH OPINION
OF COUNSEL SHALL NOT BE AN EXPENSE OF THE DEPOSITOR, THE OWNER TRUSTEE, THE
CERTIFICATE REGISTRAR, THE SECURITIES ADMINISTRATOR OR THE MASTER SERVICER.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
SELLER, THE CERTIFICATE REGISTRAR, THE CERTIFICATE PAYING AGENT, THE
DEPOSITOR, THE MASTER SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE
TRUST AGREEMENT OR THE BASIC DOCUMENTS.
Certificate No.
Cut-off Date: September 1,
2004
Date of Amended and First Payment Date:
Restated Trust Agreement: October 25, 2004
September 30, 2004
Master Servicer: Certificate Interest Rate:
▇▇▇▇▇ Fargo Bank, National Weighted Average Pass-Through
Association Rate
MORTGAGEIT TRUST Series 2004-1
Evidencing a fractional undivided equity interest in the Owner Trust
Estate, the property of which consists primarily of the Mortgage Loans in
MortgageIT Trust 2004-1 (the "Trust"), a Delaware statutory trust formed by
STRUCTURED ASSET MORTGAGE INVESTMENT II INC., as depositor, pursuant to the
Trust Agreement referred to below.
This certifies that is the registered owner of the
Percentage Interest represented hereby.
The Trust was created pursuant to a Short Form Trust Agreement, dated
as of September 22, 2004, between the Depositor and Wilmington Trust Company,
as owner trustee (the "Owner Trustee", which term includes any successor
entity under the Trust Agreement) (the "Short Form Trust Agreement") as
amended and restated by the Amended and Restated Trust Agreement dated as of
September 30, 2004 (as amended and supplemented from time to time, together
with the Short Form Trust Agreement, the "Trust Agreement") among the
Depositor, the Owner Trustee and ▇▇▇▇▇ Fargo Bank, National Association, in
its capacity as Securities Administrator, as certificate registrar and
certificate paying agent, a summary of certain of the pertinent provisions of
which is set forth hereinafter. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement, to
which Trust Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This Certificate is one of a duly authorized issue of Trust
Certificates, Series 2004-1 (herein called the "Certificates") issued under
the Trust Agreement to which reference is hereby made for a statement of the
respective rights thereunder of the Depositor, the Owner Trustee and the
Holders of the Certificates and the terms upon which the Certificates are
executed and delivered. All terms used in this Certificate which are defined
in the Trust Agreement shall have the meanings assigned to them in the Trust
Agreement. The Owner Trust Estate consists of the Mortgage Loans in the
MortgageIT Trust 2004-1. The rights of the Holders of the Certificates are
subordinated to the rights of the Holders of the Notes, as set forth in the
Indenture.
There will be distributed on the 25th day of each month or, if such
25th day is not a Business Day, the next Business Day (each, a "Payment
Date"), commencing on October 25, 2004, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of the month immediately preceding such Payment Date (the "Record Date"),
such Certificateholder's Percentage Interest in the amount to be distributed
to Certificateholders on such Payment Date.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Payment Account that
have been released from the Lien of the Indenture for payment hereunder and
that neither the Owner Trustee in its individual capacity nor the Depositor
is personally liable to the Certificateholders for any amount payable under
this Certificate or the Trust Agreement or, except as expressly provided in
the Trust Agreement, subject to any liability under the Trust Agreement.
The Holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to
the rights of the Noteholders as described in the Indenture, dated as of
September 30, 2004, among the Trust, Deutsche Bank National Trust Company, as
Indenture Trustee and ▇▇▇▇▇ Fargo Bank, National Association, as Securities
Administrator (the "Indenture").
The Depositor and each Certificateholder, by acceptance of a
Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Certificates for federal, state and local income tax
purposes as an equity interest in the Trust.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, or join in any institution against the Depositor or the Trust
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Trust Agreement or any of the Basic Documents.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Certificate Paying Agent by wire transfer or check mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Certificate Paying Agent of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the office or agency maintained by the Certificate Registrar for that purpose
by the Trust, as provided in Section 3.08 of the Trust Agreement.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency
specified in such notice.
No transfer, sale, pledge or other disposition of a Certificate shall
be made unless such transfer, sale, pledge or other disposition is exempt
from the registration requirements of the Securities Act and any applicable
state securities laws or is made in accordance with said Act and laws. In the
event of any such transfer, the Certificate Registrar or the Depositor shall
prior to such transfer require the transferee to execute (A) either (i) (a)
an investment letter in substantially the form attached to the Agreement as
Exhibit C (or in such form and substance reasonably satisfactory to the
Certificate Registrar and the Depositor) which investment letter shall not be
an expense of the Trust, the Owner Trustee, the Securities Administrator, the
Certificate Registrar, the Master Servicer or the Depositor and which
investment letter states that, among other things, such transferee (1) is a
"qualified institutional buyer" as defined under Rule 144A, acting for its
own account or the accounts of other "qualified institutional buyers" as
defined under Rule 144A, and (2) is aware that the proposed transferor
intends to rely on the exemption from registration requirements under the
Securities Act of 1933, as amended, provided by Rule 144A or (ii) (a) a
written Opinion of Counsel acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from said Act and laws or is being made
pursuant to said Act and laws, which Opinion of Counsel shall not be an
expense of the Trust, the Owner Trustee, the Securities Administrator, the
Certificate Registrar, the Master Servicer or the Depositor and (b) the
transferee executes a representation letter, substantially in the form of
Exhibit D to the Agreement, and the transferor executes a representation
letter, substantially in the form of Exhibit E to the Agreement, each
acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor certifying the facts surrounding such transfer,
which representation letters shall not be an expense of the Trust, the Owner
Trustee, the Securities Administrator, the Certificate Registrar, the Master
Servicer or the Depositor and (B) the Certificate of Non-Foreign Status (in
substantially the form attached to the Agreement as Exhibit D) acceptable to
and in form and substance reasonably satisfactory to the Certificate
Registrar and the Depositor, which certificate shall not be an expense of the
Trust, the Owner Trustee, the Securities Administrator, the Certificate
Registrar or the Depositor. The Holder of a Certificate desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trust, the Owner
Trustee, the Indenture Trustee, the Certificate Paying Agent, the Certificate
Registrar, the Master Servicer and the Depositor against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of Certificates or any interest therein shall be made to
any Person unless the Depositor, the Owner Trustee, the Securities
Administrator, the Certificate Registrar and the Master Servicer are provided
with an Opinion of Counsel which establishes to the satisfaction of the
Depositor, the Owner Trustee, the Securities Administrator, the Certificate
Registrar and the Master Servicer that the purchase of Certificates is
permissible under applicable law, will not constitute or result in any
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Depositor, the Owner Trustee, the Securities Administrator, the
Certificate Registrar or the Master Servicer to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the
Code) in addition to those undertaken in the Trust Agreement, which Opinion
of Counsel shall not be an expense of the Depositor, the Owner Trustee, the
Securities Administrator, the Certificate Registrar or the Master Servicer.
In lieu of such Opinion of Counsel, a Person may provide a certification in
the form of Exhibit G to the Agreement, which the Depositor, the Owner
Trustee, the Securities Administrator, the Certificate Registrar and the
Master Servicer may rely upon without further inquiry or investigation.
Neither an Opinion of Counsel nor a certification will be required in
connection with the initial transfer of any such Certificate by the Depositor
to an affiliate of the Depositor (in which case, the Depositor or any
affiliate thereof shall have deemed to have represented that such affiliate
is not a Plan or a Person investing Plan Assets of any Plan) and the Owner
Trustee shall be entitled to conclusively rely upon a representation (which,
upon the request of the Owner Trustee, shall be a written representation)
from the Depositor of the status of such transferee as an affiliate of the
Depositor.
No offer, sale, transfer, pledge, hypothecation or other disposition
(including any pledge, sale or transfer under a repurchase transaction or
securities loan) of any Certificate shall be made to any transferee unless,
prior to such disposition, the proposed transferor delivers to the Owner
Trustee an Opinion of Counsel, rendered by a law firm generally recognized to
be qualified to opine concerning the tax aspects of asset securitization, to
the effect that such transfer (including any disposition permitted following
any default under any pledge or repurchase transaction) will not cause the
Trust to be (i) treated as an association taxable as a corporation for
federal income tax and relevant state income and franchise tax purposes, (ii)
taxable as a taxable mortgage pool as defined in Section 7701(i) of the Code
or (iii) taxable as a "publicly traded partnership" as defined in Treasury
Regulation section 1.7704-1 for federal income tax purposes and relevant
state franchise or income tax purposes.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, or an authenticating
agent by manual signature, this Certificate shall not entitle the Holder
hereof to any benefit under the Trust Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
MORTGAGEIT TRUST SERIES 2004-1
BY: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
Dated: September 30, 2004 By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Securities Administrator
By:
Authorized Signatory
or ,
as Authenticating Agent of the Trust
By:
Authorized Signatory
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Seller, the Master Servicer, the Servicer, the Special
Servicer, the Securities Administrator, the Indenture Trustee, the
Certificate Paying Agent, the Certificate Registrar, the Owner Trustee or any
Affiliates of any of them and no recourse may be had against such parties or
their assets, except as expressly set forth or contemplated herein or in the
Trust Agreement or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in
right of payment to certain collections and recoveries with respect to the
Mortgage Loans, all as more specifically set forth herein and in the Trust
Agreement. A copy of the Trust Agreement may be examined by any
Certificateholder upon written request during normal business hours at the
principal office of the Depositor and at such other places, if any,
designated by the Depositor.
The Trust Agreement permits the amendment thereof as specified below,
provided that any amendment be accompanied by an Opinion of Counsel to the
Owner Trustee to the effect that such amendment complies with the provisions
of the Trust Agreement and, if MortgageIT Holdings, Inc. was not the Majority
Certificateholder, would not cause the Trust to be subject to an entity level
tax. If the purpose of the amendment is to correct any mistake, eliminate any
inconsistency, cure any ambiguity or deal with any matter not covered, it
shall not be necessary to obtain the consent of any Holder, but the Owner
Trustee shall be furnished with a letter from each of the Rating Agencies
that the amendment will not result in the downgrading or withdrawal of the
rating then assigned to any Note or the rating then assigned to any Note. If
the purpose of the amendment is to prevent the imposition of any federal or
state taxes at any time that any Security is outstanding, it shall not be
necessary to obtain the consent of the any Holder, but the Owner Trustee
shall be furnished with an Opinion of Counsel that such amendment is
necessary or helpful to prevent the imposition of such taxes and is not
materially adverse to any Holder. If the purpose of the amendment is to add
or eliminate or change any provision of the Trust Agreement, other than as
specified in the preceding two sentences, the amendment shall require either
(a) a letter from each of the Rating Agencies that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to any
Note or the rating then assigned to any Note or (b) the consent of Holders of
the Certificates evidencing a majority of the Percentage Interests of the
Certificates and the Indenture Trustee; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the time of,
payments received that are required to be distributed on any Certificate
without the consent of the related Certificateholder, or (ii) reduce the
aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment without the consent of the Holders of all such
Certificates then outstanding.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained
by the Trust, as provided in the Trust Agreement, 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 of authorized
denominations evidencing the same aggregate interest in the Trust will be
issued to the designated transferee. The initial Certificate Registrar
appointed under the Trust Agreement is ▇▇▇▇▇ Fargo Bank, National Association.
Except as provided in the Trust Agreement, the Certificates are
issuable only in a minimum Certificate Percentage Interest of 10%. As
provided in the Trust Agreement and subject to certain limitations therein
set forth, Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent,
or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Owner Trustee, the Certificate Paying Agent, the Certificate Registrar or
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate as and when provided in accordance
with the terms of the Trust Agreement.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of
assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
*/
Signature Guaranteed:
*/
*/ NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must
be guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available
funds to
for the account of , account
number
, or, if mailed by check, to .
Applicable statements should be mailed to .
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT B
CERTIFICATE OF TRUST OF
MortgageIT Trust 2004-1
THIS Certificate of Trust of MortgageIT Trust 2004-1 (the
"Trust"), dated September 22, 2004, is being duly executed and filed by
Wilmington Trust Company, a Delaware banking corporation, as trustee, to form
a statutory trust under the Delaware Statutory Trust Act (12 Del. Code, §
3801 et seq.).
1. Name. The name of the statutory trust formed hereby is
MortgageIT Trust 2004-1.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware is Wilmington Trust Company,
▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
Wilmington Trust Company,
not in its individual capacity but
solely as owner trustee under a
Trust Agreement dated as of
September 22, 2004
By:
Name:
Title:
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
The undersigned seller, as registered holder (the "Seller"),
intends to transfer the Rule 144A Securities described above to the
undersigned buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of
the Rule 144A Securities, any interest in the Rule 144A Securities or any
other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security from, or
otherwise approached or negotiated with respect to the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security with,
any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Rule 144A Securities under the
Securities Act of 1933, as amended (the "1933 Act"), or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the 1933
Act or require registration pursuant thereto, and that the Seller has not
offered the Rule 144A Securities to any person other than the Buyer or
another "qualified institutional buyer" as defined in Rule 144A under the
▇▇▇▇ ▇▇▇.
2. The Buyer warrants and represents to, and covenants with, the Owner
Trustee, the Certificate Registrar and the Depositor (as defined in the
Amended and Restated Trust Agreement (the "Agreement"), dated as of September
30, 2004, among Structured Asset Mortgage Investments II Inc., as Depositor,
Wilmington Trust Company, as Owner Trustee, and ▇▇▇▇▇ Fargo Bank, National
Association in its capacity as Securities Administrator, as Certificate
Registrar and Certificate Paying Agent) pursuant to Section 3.04 of the
Agreement and Deutsche Bank National Trust Company, as indenture trustee, as
follows:
a. The Buyer understands that the Rule 144A Securities have not been
registered under the 1933 Act or the securities laws of any state.
b. The Buyer considers itself a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of
investment in the Rule 144A Securities.
c. The Buyer has been furnished with all information regarding the Rule
144A Securities that it has requested from the Seller, the Indenture
Trustee, the Owner Trustee or the Master Servicer.
d. Neither the Buyer nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security
from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the
Rule 144A Securities under the 1933 Act or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the
1933 Act or require registration pursuant thereto, nor will it act, nor
has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term is
defined in Rule 144A under the 1933 Act and has completed either of the
forms of certification to that effect attached hereto as Annex 1 or
Annex 2. The Buyer is aware that the sale to it is being made in
reliance on Rule 144A. The Buyer is acquiring the Rule 144A Securities
for its own account or the accounts of other qualified institutional
buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
1933 Act.
3. The Buyer warrants and represents to, and covenants with, the Seller,
the Indenture Trustee, Owner Trustee, the Certificate Registrar, Master
Servicer and the Depositor that either (1) the Buyer is (A) not an employee
benefit plan (within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")), or a plan (within the
meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986 ("Code")),
which (in either case) is subject to ERISA or Section 4975 of the Code (both
a "Plan"), and (B) is not directly or indirectly purchasing the Rule 144A
Securities on behalf of, as investment manager of, as named fiduciary of, as
trustee of, or with "plan assets" of a Plan, or (2) the Buyer understands
that registration of transfer of any Rule 144A Securities to any Plan, or to
any Person acting on behalf of any Plan, will not be made unless such Plan
delivers an opinion of its counsel, addressed and satisfactory to the
Certificate Registrar, the Owner Trustee, the Master Servicer and the
Depositor, to the effect that the purchase and holding of the Rule 144A
Securities by, on behalf of or with "plan assets" of any Plan is permissible
under applicable law, would not constitute or result in a prohibited
transaction under ERISA or Section 4975 of the Code, and would not subject
the Depositor, the Owner Trustee, the Securities Administrator, the
Certificate Registrar or the Master Servicer to any obligation or liability
(including liabilities under ERISA or Section 4975 of the Code) in addition
to those undertaken in the Agreement, which Opinion of Counsel shall not be
an expense of the Depositor, the Owner Trustee, the Securities Administrator,
the Certificate Registrar or the Master Servicer.
4. This document may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together,
shall constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
__________________________ __________________________
Print Name of Seller Print Name of Buyer
By: __________________________ By:__________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. __________________________ No. __________________________
Date: __________________________ Date: __________________________
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $ 1 in securities (except for
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule
144A) and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
___ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the
business of which is substantially confined to banking and is
supervised by the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements.
___ Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a State or territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality
of the State or its political subdivisions, for the benefit of its
employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Adviser. The Buyer is an investment adviser registered under
the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers Act
of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established
and maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees, or (b) employee benefit plans within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, but is not a trust fund that includes as participants individual
retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part
of an unsold allotment to or subscription by the Buyer, if the Buyer is a
dealer, (iii) bank deposit Notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject
to a repurchase agreement and (vii) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph. Further, in determining
such aggregate amount, the Buyer may have included securities owned by
subsidiaries of the Buyer, but only if such subsidiaries are consolidated
with the Buyer in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such
securities were not included if the Buyer is a majority-owned, consolidated
subsidiary of another enterprise and the Buyer is not itself a reporting
company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
_____ _____ Will the Buyer be purchasing the Rule
Yes No 144A Securities only for the Buyer's
own account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for the
account of a third party (including any separate account) in reliance on Rule
144A, the Buyer will only purchase for the account of a third party that at
the time is a "qualified institutional buyer" within the meaning of Rule
144A. In addition, the Buyer agrees that the Buyer will not purchase
securities for a third party unless the Buyer has obtained a current
representation letter from such third party or taken other appropriate steps
contemplated by Rule 144A to conclude that such third party independently
meets the definition of "qualified institutional buyer" set forth in Rule
144A.
7. The Buyer will notify each of the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice is given, the Buyer's purchase of Rule 144A Securities will constitute
a reaffirmation of this certification as of the date of such purchase.
________________________________
Print Name of Buyer
By: __________________________
Name:
Title
Date: __________________________
--------
1 Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case, Buyer
must own and/or invest on a discretionary basis at least $10,000,000 in
securities.
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and
(ii) as marked below, the Buyer alone, or the Buyer's Family of Investment
Companies, owned at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year. For purposes of determining the amount of securities owned by the Buyer
or the Buyer's Family of Investment Companies, the cost of such securities
was used.
____ The Buyer owned $ in securities (other than
the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $ in securities (other
than the excluded securities referred to below) as of the end of
the Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer or are part of the Buyer's
Family of Investment Companies, (ii) bank deposit Notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each of the
parties to which this certification is made are relying and will continue to
rely on the statements made herein because one or more sales to the Buyer
will be in reliance on Rule 144A. In addition, the Buyer will only purchase
for the Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
Print Name of Buyer
By: __________________________
Name:
Title:
IF AN ADVISER:
__________________________
Print Name of Buyer
Date: __________________________
EXHIBIT D
CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status ("certificate") is delivered
pursuant to Section 3.02 of the Amended and Restated Trust Agreement, dated
as of September 30, 2004 (the "Trust Agreement"), among Structured Asset
Mortgage Investments II Inc., as Depositor, Wilmington Trust Company, as
Owner Trustee and ▇▇▇▇▇ Fargo Bank, National Association, in its capacity as
Securities Administrator, as Certificate Registrar and Certificate Paying
Agent, in connection with the acquisition of, transfer to or possession by
the undersigned, whether as beneficial owner for U.S. federal income tax
purposes (the "Beneficial Owner"), or nominee on behalf of the Beneficial
Owner of the Certificates, Series 2004-1 (the "Certificate"). Capitalized
terms used but not defined in this certificate have the respective meanings
given them in the Trust Agreement.
Each holder must complete Part I, Part II (if the holder is a nominee), and
in all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form W-9
relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446 of
the Internal Revenue Code (relating to withholding tax on foreign partners)
do not apply in respect of the Certificate held by the undersigned, the
undersigned hereby certifies:
Part I. Complete Either A or B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is ) not a non-resident alien for purposes
of U.S. income taxation;
2. My (The Beneficial Owner's) name and home address are:
; and
3. My (The Beneficial Owner's) U.S. taxpayer identification number (Social
Security Number) is .
B. Corporate, Partnership or Other Entity as Beneficial Owner
1. (Name of the Beneficial Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as
those terms are defined in the Code and Treasury
Regulations;
2. The Beneficial Owner's office address and place of incorporation (if
applicable) is
; and
3. The Beneficial Owner's U.S. employer identification number is
.
Part II. Nominees
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this certificate has been made in reliance upon
information contained in:
an IRS Form W-9
a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that
the form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part III. Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees
to notify the Trust within sixty (60) days of the date that the Beneficial
Owner becomes a foreign person. The undersigned understands that this
certificate may be disclosed to the Internal Revenue Service by the Trust and
any false statement contained therein could be punishable by fines,
imprisonment or both.
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct
and complete and will further declare that I will inform the Trust of any
change in the information provided above, and, if applicable, I further
declare that I have the authority* to sign this document.
__________________________
Name
__________________________
Title (if applicable)
__________________________
Signature and Date
*Note: If signed pursuant to a power of attorney, the power of attorney must
accompany this certificate.
EXHIBIT E
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Wilmington Trust Company, as Owner Trustee
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: MortgageIT Trust 2004-1 Trust Certificates,
Series 2004-1 (the "Certificates")
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned Certificates,
we certify that (a) we understand that the Certificates are not being
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities laws and are being transferred to us in a transaction that
is exempt from the registration requirements of the Act and any such laws,
(b) we are an "accredited investor," as defined in Regulation D under the
Act, and have such knowledge and experience in financial and business matters
that we are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and
all matters relating thereto or any additional information deemed necessary
to our decision to purchase the Certificates, (d) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act
of 1974, as amended, or a plan that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan, (e) we are acquiring the Certificates for investment for our own
account and not with a view to any distribution of such Certificates (but
without prejudice to our right at all times to sell or otherwise dispose of
the Certificates in accordance with clause (g) below), (f) we have not
offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, or taken any other action which would result in
a violation of Section 5 of the Act, and (g) we will not sell, transfer or
otherwise dispose of any Certificates unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Act or is exempt from such registration requirements, and if requested, we
will at our expense provide an Opinion of Counsel satisfactory to the
addressees of this certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a
certificate to substantially the same effect as this certificate, and (3) the
purchaser or transferee has otherwise complied with any conditions for
transfer set forth in the Trust Agreement.
Very truly yours,
[TRANSFEREE]
By:__________________________
Authorized Officer
EXHIBIT F
TRANSFEROR CERTIFICATE
Wilmington Trust Company, as Owner Trustee
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Proposed Transfer of Trust Certificates, MortgageIT Trust ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇:
This certification is being made by ____________________ (the
"Transferor") in connection with the proposed Transfer to
_____________________ (the "Transferee") of a trust certificate (the "Trust
Certificate") representing ___% fractional undivided interest in MortgageIT
Trust 2004-1 (the "Trust") created pursuant to a Trust Agreement, dated as of
September 22, 2004 (such agreement, as amended by the Amended and Restated
Trust Agreement dated September 30, 2004, being referred to herein as the
"Trust Agreement") among Structured Asset Mortgage Investments II Inc. (the
"Company"), Wilmington Trust Company, as Owner Trustee (the "Owner Trustee")
and ▇▇▇▇▇ Fargo Bank, National Association, in its capacity as Securities
Administrator, as certificate registrar and certificate paying agent (the
"Certificate Registrar"). Initially capitalized terms used but not defined
herein have the meanings assigned to them in the Deposit Trust Agreement. The
Transferor hereby certifies, represents and warrants to, and covenants with,
the Company, the Owner Trustee and the Certificate Registrar that:
Neither the Transferor nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Trust Certificate,
any interest in any Trust Certificate or any other similar security to any
person in any manner, (b) has solicited any offer to buy or to accept a
pledge, disposition or other transfer of any Trust Certificate, any interest
in any Trust Certificate or any other similar security from any person in any
manner, (c) has otherwise approached or negotiated with respect to any Trust
Certificate, any interest in any Trust Certificate or any other similar
security with any person in any manner, (d) has made any general solicitation
by means of general advertising or in any other manner, or (e) has taken any
other action, that (as to any of (a) through (e) above) would constitute a
distribution of the Trust Certificates under the Securities Act of 1933 (the
"Act"), that would render the disposition of any Trust Certificate a
violation of Section 5 of the Act or any state securities law, or that would
require registration or qualification pursuant thereto. The Transferor will
not act in any manner set forth in the foregoing sentence with respect to any
Trust Certificate. The Transferor has not and will not sell or otherwise
transfer any of the Trust Certificates, except in compliance with the
provisions of the Trust Agreement.
Date: __________________________
Name of Transferor
__________________________
Signature
__________________________
Name
__________________________
Title
EXHIBIT G
[DATE]
Wilmington Trust Company, as Owner Trustee
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Proposed Transfer of Trust Certificates,
MortgageIT Trust 2004-1 (the "Certificates")
Gentlemen:
This certification is being made by (the "Transferee") in
connection with the proposed Transfer by (the "Transferor") of a
trust certificate (the "Trust Certificate") representing __% fractional
undivided interest in MortgageIT Trust 2004-1 (the "Trust") created pursuant
to a Trust Agreement, dated as of September 22, 2004 (such agreement, as
amended by the Amended and Restated Trust Agreement dated September 30, 2004,
being referred to herein as the "Trust Agreement") among Structured Asset
Mortgage Investments II Inc. (the "Company"), Wilmington Trust Company, as
Owner Trustee (the "Owner Trustee") and ▇▇▇▇▇ Fargo Bank, National
Association, in its capacity as Securities Administrator, as certificate
registrar and certificate paying agent (the "Certificate Registrar").
Initially capitalized terms used but not defined herein have the meanings
assigned to them in the Trust Agreement. The Transferor hereby certifies,
represents and warrants to, and covenants with, the Company, the Owner
Trustee and the Certificate Registrar that:
(i) either (a) or (b) is satisfied, as marked below:
___ a. The Transferor is not any employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or the Internal Revenue Code of 1986 (the "Code"), a
Person acting, directly or indirectly, on behalf of any such plan or
any Person acquiring such Certificates with "plan assets" of a Plan
within the meaning of the Department of Labor regulation promulgated at
29 C.F.R. §2510.3-101; or
___ b. The Transferor is an employee benefit plan subject to
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986 (the "Code"), a Person
acting, directly or indirectly, on behalf of any such plan or any
Person acquiring such Certificates with "plan assets" of a Plan within
the meaning of the Department of Labor regulation promulgated at 29
C.F.R. §2510.3-101 and will provide the Depositor, the Owner Trustee,
the Securities Administrator, the Certificate Registrar and the Master
Servicer with an Opinion of Counsel, satisfactory to the Depositor, the
Owner Trustee, the Securities Administrator, the Certificate Registrar
and the Master Servicer, to the effect that the purchase and holding of
a Certificate by or on behalf of the Transferor is permissible under
applicable law, will not constitute or result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments) and will not
subject the Depositor, the Owner Trustee, the Securities Administrator,
the Certificate Registrar or the Master Servicer to any obligation or
liability (including liabilities under ERISA or Section 4975 of the
Code) in addition to those undertaken in the Trust Agreement, which
Opinion of Counsel shall not be an expense of the Depositor, the Owner
Trustee, the Securities Administrator, the Certificate Registrar or the
Master Servicer; and
(ii) the Transferor is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406
and 407 of ERISA and Section 4975 of the Code and understands that each
of the parties to which this certification is made is relying and will
continue to rely on the statements made in this paragraph.
Very truly yours,
By: _____________________________
Name: _____________________________
Title:_____________________________
