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EXHIBIT 4.2
SEQUOIA MORTGAGE TRUST _______
COLLATERALIZED MORTGAGE BONDS
AMENDED AND RESTATED DEPOSIT TRUST AGREEMENT
Between
SEQUOIA MORTGAGE FUNDING CORPORATION,
as Depositor
and
________________________,
as Owner Trustee
dated as of ___________ ___, 199__
Sequoia Mortgage Trust 199__-__
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
ORGANIZATION
2.01. Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.02. Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.03. Purpose and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.04. Appointment of the Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.05. Declaration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.06. Issuance of Investor Certificate; Prohibition
of Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.07. Situs of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.08. Title to Trust Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
CONCERNING THE OWNER
3.01. Ownership Prior to Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.02. Prohibition of Disposition by Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.03. Lost, Stolen Mutilated or Destroyed Investor
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.04. Representations and Warranties of the Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.05. Covenants of Owner to Indemnify Bond Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV
PAYMENTS AND DISTRIBUTIONS
4.01. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.02. Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.03. Monthly Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.04. Reports to Internal Revenue Service and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
5.01. Authorization; Issuance of the Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.02. Pledge of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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5.03. In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.04. Action upon Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.05. No Duties Except as Specified in Agreement or
Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.06. No Action Except Under Specified Documents or
Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.07. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.08. Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.09. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13]
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
6.01. Acceptance of Trusts and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.02. Furnishing of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.03. Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.04. Representations and Warranties of the Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.05. No Segregation of Moneys; No Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.06. Reliance; Advice of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.07. Not Acting in Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VII
INDEMNIFICATION BY OWNER
7.01. Trust Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.02. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.03. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.04. Lien on Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
8.01. Termination of Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL TRUSTEES
9.01. Resignation of Owner Trustee; Appointment
of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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9.02. Appointment of Additional Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE X
MISCELLANEOUS
10.01. Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.02. No Legal Title to Trust Estate in Owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.03. Pledge of Collateral by Owner Trustee Is
Binding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.04. Limitations on Rights of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.05. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.06. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10.07. Separate Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10.08. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10.09. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10.11. No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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ARTICLE XI
OFFICERS
11.01. Appointment of Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.02. Officers to Provide Information to the
Owner Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
EXHIBIT A FORM OF INVESTOR CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
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AMENDED AND RESTATED DEPOSIT TRUST AGREEMENT dated as of
__________, 199_, by and between Sequoia Mortgage Funding Corporation, a
Delaware corporation, and _________________________________________, a Delaware
banking corporation.
WHEREAS, the Depositor and the Owner Trustee have entered into
a Trust Agreement, dated as of __________, 199_ (the "Trust Agreement"); and
WHEREAS, the Depositor and the Owner Trustee desire to amend
and restate the Trust Agreement in its entirety.
NOW THEREFORE, in consideration of the premises and mutual
agreements herein contained, the Trust Agreement is hereby amended and restated
in its entirety as follows:
ARTICLE I
DEFINITIONS
1.01. Definitions. For all purposes of this Agreement, the
following terms shall have the meanings set forth below:
"AGREEMENT" or "DEPOSIT TRUST AGREEMENT" means this Amended
and Restated Deposit Trust Agreement and any amendments or modifications
hereof.
"AUTHORIZED OFFICER" means any officer of the Owner Trustee
who is authorized to act for the Owner Trustee and whose name appears on a list
of such authorized officers furnished by the Owner Trustee, as such list may be
amended or supplemented from time to time, and any Officer of the Trust who is
authorized to act pursuant to Section 11.01 of this Agreement and whose name
appears on a list furnished by the Depositor to the Owner Trustee and the Bond
Trustee, as such list may be amended or supplemented from time to time.
"BANK" means ________________________ in its individual
capacity and not as Owner Trustee.
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"BOND AGREEMENTS" mean the Indenture, the Master Servicing
Agreement, the Bonds and the Underwriting Agreement.
"BONDHOLDERS" mean the holders from time to time of the Bonds.
"BONDS" mean the Sequoia Mortgage Trust _____ Collateralized
Mortgage Bonds issued by the Trust under the Indenture.
"BUSINESS DAY" means any day that is not (i) a Saturday or a
Sunday, or (ii) a day on which banking institutions in the City of New York,
the State of California or the city of Wilmington, Delaware, are authorized or
obligated by law or executive order to be closed.
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del.C. Section 3801 et seq, as the same may be amended from
time to time.
"CERTIFICATE DISTRIBUTION AMOUNT" has the meaning specified in
Section 3.09(c).
"CERTIFICATEHOLDER" or "HOLDER" means the Person in whose name
an Investor Certificate is registered in the Certificate Register except that,
any Investor Certificate registered in the name of the Issuer, the Owner
Trustee or the Indenture Trustee or any Affiliate of any of them shall be
deemed not to be outstanding and the registered Holder will not be considered a
Certificateholder or a Holder for purposes of giving any request, demand,
authorization, direction, notice, consent or waiver under the Indenture or the
Trust Agreement provided that, in determining whether the Indenture Trustee or
the Owner Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Certificates that the
Indenture Trustee or the Owner Trustee knows to be so owned shall be so
disregarded. Owners of Investor Certificates that have been pledged in
satisfaction of the Indenture Trustee or the Owner Trustee, as the case may be,
the pledgee's right so to act with respect to such Investor Certificates and
that the pledgee is not the Issuer, any other
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obligor upon the Investor Certificates or any affiliate of any of the foregoing
Persons.
"CERTIFICATE OF TRUST" means the Certificate of Trust to be
filed by the Owner Trustee for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"CERTIFICATE PAYING AGENT" means __________________.
"CERTIFICATE REGISTER" means the register maintained by the
Certificate Registrar in which the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges of Certificates.
"CERTIFICATE REGISTRAR" means, initially, ________________, in
its capacity as Certificate Registrar, or any successor to the Trustee in such
capacity.
"CLOSING DATE" has the meaning specified in the Indenture.
"COLLATERAL" means all of the Trust Estate, including the
Pledged Mortgages, rights to the Master Servicing Agreement, the Insurance
Policies, the Bond Account and the Distribution Account, that is from time to
time pledged as security for the Bonds under the Indenture.
"DEPOSITOR" means Sequoia Mortgage Funding Corporation, a
Delaware corporation.
"EXPENSES" has the meaning specified in Section 7.02.
"FISCAL YEAR" means the period from each January 1 to and
including the following December 31.
"INDENTURE" means the indenture between the Trust and the Bond
Trustee, providing for the issuance of the Bonds.
"INDENTURE TRUSTEE" means _________________________________,
a banking corporation organized and existing under
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the laws of _________________________________, as the trustee designated under
the Indenture.
"INITIAL PRINCIPAL BALANCE" means, with respect to the
Investor Certificates, $__________.
"INVESTOR CERTIFICATES" means the equity certificates each
representing undivided beneficial interests in the Trust in substantially the
form attached hereto as Exhibit A.
"MANAGEMENT AGREEMENT" means the agreement between the Trust
and Redwood Trust, Inc., substantially in the form annexed as Exhibit B hereto,
as such agreement may be amended or supplemented.
"MANAGER" means the Person acting in such capacity pursuant to
the Management Agreement or its successors or assigns.
"MASTER SERVICER" means ____________________________________,
a ________ corporation, which shall manage and supervise the administration and
servicing of the Pledged Mortgages securing the Bonds and the Servicers of such
Pledged Mortgages, or its successors or assigns.
"MASTER SERVICING AGREEMENT" means the Master Servicing
Agreement among the Trust, the Indenture Trustee and the Master Servicer,
pursuant to which the Master Servicer will be obligated to manage and supervise
the administration and servicing of the Pledged Mortgages by the Servicers, as
such agreement may be amended or supplemented from time to time as permitted
thereby.
"NET PROCEEDS FROM THE BONDS" means the proceeds received by
the Trust from the issue and sale of the Bonds, less the costs and expenses
incurred in connection with the issue and sale of the Bonds.
"OFFICER" means those officers referred to in Article XII.
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"OPERATIVE AGREEMENTS" mean the Indenture, the Underwriting
Agreement, the Management Agreement, the Master Servicing Agreement, the
Investor Certificate, the Mortgage Loan Purchase Agreement and each other
document contemplated by any of the foregoing or this Agreement to which the
Owner Trustee or the Trust is a party.
"OWNER TRUSTEE" means ________________________, not in its
individual capacity but solely as trustee under this Agreement, and any
successor trustee hereunder.
"PERIODIC FILINGS" mean any filings or submissions that the
Trust is required to make with respect to the Bonds, including without
limitation filings pursuant to the Securities and Exchange Act of 1934, as
amended, and filings with any stock exchange or self-regulatory organization.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"PERCENTAGE INTEREST" means, with respect to any Investor
Certificate, the percentage obtained by dividing the denomination specified on
such Investor Certificate by the Initial Principal Balance of the Investor
Certificates.
"PLEDGED MORTGAGES" means those [fixed/floating] rate,
[fully-amortizing] conventional mortgage loans secured by first liens on one-
to four-family residences as are Granted to the Indenture Trustee pursuant to
the Indenture (including any REO Property).
"PROPOSER" means the Certificateholder making a written
request pursuant to Section 5.07.
"QUALIFIED REIT SUBSIDIARY" means any subsidiary of Redwood
which satisfies the requirements of Section 856(i)(2) of the Internal Revenue
Code of 1986, as amended.
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"REDWOOD" means Redwood Trust, Inc., a Maryland corporation.
"SECRETARY OF STATE" means the Secretary of State of the State
of Delaware.
"SERVICER" means any Person with which the Master Servicer has
entered into a Servicing Agreement for the servicing of all or a portion of the
Pledged Mortgages pursuant to Section 3(b) of the Master Servicing Agreement.
"SERVICING AGREEMENT" means any servicing agreement between
the Master Servicer and the related Servicer relating to servicing and/or
administration of certain Pledged Mortgages as provided in Section 3(b) of the
Master Servicing Agreement.
"SINGLE CERTIFICATE" means an Investor Certificate in the
denomination of $1,000.
"TRUST" means the trust established by this Agreement.
"TRUST ESTATE" means all right, title and interest of the
Owner Trustee, subject to the lien of the Indenture, in and to the Collateral
and any other property contributed by the Depositor, including without
limitation all distributions, payments, proceeds, insurance proceeds or
requisition and indemnity payments with respect thereto. Notwithstanding the
foregoing, "Trust Estate" shall not include any amounts paid or payable as
compensation or indemnity to the Bank.
"UNDERWRITING AGREEMENT" means the underwriting agreement
relating to the sale of the Bonds substantially in the form filed as an exhibit
to the registration statement with respect to the Bonds.
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ARTICLE II
ORGANIZATION
2.01. Name. The trust established under this Agreement may
be referred to as "Sequoia Mortgage Trust 199_-_" in which name the Owner
Trustee and the Officers may conduct the activities contemplated hereby.
2.02. Office. The office of the Trust shall be in care of
the Owner Trustee, at the address set forth in Section 10.05 or at such other
address within the State of Delaware as the Owner Trustee may designate by
notice to the Certificateholders.
2.03. Purpose and Powers. The purpose of the Trust is to
issue and administer the Bonds and the Certificates, to receive and own the
Collateral, to maintain and administer the Collateral, to pledge the Collateral
to secure the Bonds pursuant to the Indenture and to distribute the Net
Proceeds from the Bonds to the Depositor, all for the benefit of the
Certificateholders. The Trust shall not have power to perform any act or
engage in any business whatsoever except for the foregoing and any activity
that is both necessary to the foregoing and within the contemplation of the
Indenture.
2.04. Appointment of the Owner Trustee. The Depositor hereby
appoints the Bank as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein and in the Business
Trust Statute. The Owner Trustee acknowledges receipt in trust from the
Depositor, as of the date hereof, of the sum of Ten Dollars ($10.00)
constituting the initial Trust Estate.
The Owner Trustee is hereby authorized to execute the Bond
Agreements and the Management Agreement on behalf of the Trust. The Owner
Trustee is hereby authorized to take all actions required or permitted to be
taken by it as Issuer (as defined in the Indenture) under the Indenture and is
hereby directed to comply with the terms of the Indenture. Effective as of the
date of execution, the Owner Trustee shall have all the rights, powers and
duties set forth herein and in the Business
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Trust Statute with respect to accomplishing the purposes of the Trust.
2.05. Initial Capital Contribution; Declaration of Trust.
The Depositor hereby sells, assigns, transfers, conveys and sets over to the
Trust, as of the date hereof, the sum of $10. 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 receipt of the Pledged
Mortgage pursuant to Section 3 of the Mortgage Loan Purchase Agreement, which
shall constitute the Trust Estate. The Owner Trustee hereby declares that it
will hold the Trust Estate upon the trusts set forth herein and for the use and
benefit of the Certificateholders. It is the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Statute and
that this Agreement constitute the governing instrument of such business trust.
No later than the Closing Date, the Owner Trustee shall cause the filing of the
Certificate of Trust with the Secretary of State. It is the intention of the
parties hereto that, for federal and state income and state and local franchise
tax purposes, the Trust shall not be treated as (i) an association subject
separately to taxation as a corporation (other than as a "qualified REIT
subsidiary" as defined in Section 856(i) of the Code), (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, and that the
Bonds 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 Business Trust
Statute with respect to accomplishing the purposes of the Trust.
2.06. Issuance of Initial Investor Certificate. (a) Upon the
formation of the Trust by the contribution by the Depositor pursuant to Section
2.04 and until the conveyance of
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the Pledged Mortgages pursuant to Section 3 of the Mortgage Loan Purchase
Agreement and the issuance of the Investor Certificates, and thereafter except
as otherwise permitted hereunder, the Depositor shall be the sole
Certificateholder.
2.07. Liability of the Holders of the Investor Certificates.
The Holders of the Investor 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 (including Expenses, to the
extent not paid out of the Trust Estate); provided however, that the Holders of
the Investor Certificates shall not be liable for payments required to be made
on the Bonds or the Investor Certificates, or for any losses incurred by a
Certificateholder in the capacity of an investor in the Investor Certificates
or a Bondholder in the capacity of an investor in the Bonds. In addition, any
third party creditors of the Trust, including the Insurer (other than in
connection with the obligations described in the following sentence for which
the Holders of the Investor Certificates shall not be liable) shall be deemed
third party beneficiaries of this paragraph. The Holders of the Investor
Certificates shall be liable for any entity level taxes imposed on the Trust.
The obligations of the Holders of the Investor Certificates under this
paragraph shall be evidenced by the Investor Certificates.
2.08. 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 only office of the Trust will be as described in Section 2.02 hereof.
2.09. Title to Trust Property. Title to all of the Trust
Estate shall be vested in the Trust until this Agreement terminates pursuant to
Article VIII hereof; provided, however, that if the laws of any jurisdiction
require that title to any part of the Trust Estate be vested in the trustee of
the Trust, then title to that part of the Trust Estate shall be deemed to be
vested in the Owner Trustee or any co-trustee or separate trustee, as the case
may be, appointed pursuant to Article VI of this Agreement.
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2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee as follows:
(a) Upon the receipt of the Trust Estate by the Owner
Trustee on behalf of the Trust under this Agreement, the Trust will
own the Trust Estate free and clear of any lien (other than the lien
of the Indenture) and the Owner Trustee will have the right on behalf
of the Trust to grant and deliver the Collateral to the Indenture
Trustee in accordance with the Indenture and Section 5.01 of this
Agreement.
(b) This Agreement has been duly and validly authorized,
executed and delivered by, and constitutes a valid and binding
agreement of, the Depositor, enforceable in accordance with its terms,
subject, as to enforceability of remedies, to applicable bankruptcy,
insolvency, reorganization or other laws affecting creditors' rights
generally and to general principles of equity and equitable remedies
(regardless of whether the enforceability of such remedies is
considered in a proceeding at law or in equity).
2.11. Tax Treatment. The Depositor has structured the
transactions evidenced by Operative Agreements with the intention that (i) the
Bonds qualify under applicable tax laws as indebtedness secured by the Trust
Estate and (ii) the Trust formed hereby be disregarded as an entity separate
from the Depositor unless and until the date when either (a) there is more than
one Investor Certificateholder or (b) any Series of Bonds is recharacterized as
an equity interest in the Trust for federal income tax purposes. In such
event, the Trust is intended to be classified as a partnership for federal
income tax purposes. The Depositor, the Owner Trustee and the Manager agree to
report the transactions contemplated hereby in accordance with the above stated
intentions unless and until determined to the contrary by an applicable.
2.12. Investment Company. Neither the Company nor any holder
of an Investor Certificate shall take any action which
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would cause the Trust to become an "investment company" which would be required
to register under the Investment Company Act.
ARTICLE III
THE INVESTOR CERTIFICATES
3.01. The Investor Certificates. The Investor Certificates
shall be issued in the form of one or more Investor Certificates each
representing not less than a 10% Percentage Interest. The Investor
Certificates shall initially be registered in the name of the Depositor. The
Investor 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 3.02. Investor 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
Investor Certificates or did not hold such offices at the date of
authentication and delivery of such Investor 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 an Investor Certificate duly registered in such Person's name pursuant to
Section 3.03.
3.02. Authentication of Investor Certificates. The Owner
Trustee shall cause all Investor 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 Investor Certificate shall entitle
its Holder to any benefit under this Trust Agreement or be valid for any
purpose unless there shall appear on such Investor Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by
the Owner Trustee or the Certificate Registrar by
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manual signature; such authentication shall constitute conclusive evidence that
such Investor Certificate shall have been duly authenticated and delivered
hereunder. All Investor Certificates shall be dated the date of their
authentication.
3.03. Registration of and Limitations on Transfer and
Exchange of Investor 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 Investor Certificates and of transfers and exchanges of
Investor Certificates as herein provided. _____________________ shall be the
initial Certificate Registrar. 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 Investor Certificate, upon surrender for registration of
transfer of any Investor Certificate at the office or agency maintained
pursuant to Section 3.09, 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 Investor 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, Investor
Certificates may be exchanged for other Investor Certificates of authorized
denominations of a like aggregate amount upon surrender of the Investor
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.09.
Every Investor 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 Investor 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.
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No service charge shall be made for any registration of
transfer or exchange of Investor 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 Investor 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 of an Investor Certificate shall be made unless
such transfer 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
(i) (a) an investment letter (in substantially the form attached hereto as
Exhibit C) in form and substance reasonably satisfactory to the Certificate
Registrar and the Depositor certifying to the Trust, the Owner Trustee, the
Certificate Registrar and the Depositor that such transferee is a "qualified
institutional buyer" under Rule 144A under the Securities Act, or (b) an
investment letter (in substantially the form attached hereto as Exhibit E),
acceptable to and in form and substance reasonably satisfactory to the
Certificate Registrar and the Depositor, which investment letters shall not be
an expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Master Servicer or the Depositor, or (c) a certificate (in substantially the
form attached hereto as Exhibit F) in form and substance reasonably
satisfactory to the Certificate Registrar and the Depositor certifying that
such transferee is a Person involved in the organization or operation of the
Trust or an affiliate of such a Person within the meaning of Rule 3a-7 of the
Investment Company Act of 1940, as amended (including but not limited to the
Company) and (ii) the Certificate of Non-Foreign Status (in substantially the
form attached hereto as Exhibit F) 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
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Certificate Registrar or the Depositor. The Holder of an Investor Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Trust, the Owner Trustee, 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 an Investor Certificate shall be made unless
the Certificate Registrar shall have received either (i) a representation
letter from the proposed transferee of such Investor Certificate to the effect
that such proposed transferee is not an employee benefit plan subject to the
fiduciary responsibility provisions of ERISA, or Section 4975 of the Code, or a
Person acting on behalf of any such plan or using the assets of any such plan,
which representation letter shall not be an expense of the Trust, Owner
Trustee, the Certificate Registrar, the Master Servicer or the Depositor or
(ii) in the case of any such certificate presented for registration in the name
of an employee benefit plan subject to the fiduciary responsibility provisions
of 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, in form and substance reasonably satisfactory to, and addressed and
delivered to, the Trust, the Certificate Registrar and the Depositor, to the
effect that the purchase or holding of such Investor Certificate will not
result in the assets of the Trust Estate being deemed to be "plan assets" and
subject to the fiduciary responsibility provisions of ERISA or the prohibited
transaction provisions of the Code, will not constitute or result in a
prohibited transaction within the meaning of Section 406 or Section 407 of
ERISA or Section 4975 of the Code, and will not subject the Trust, the Owner
Trustee, the Certificate Registrar or the Depositor to any obligation or
liability including obligations or liabilities under ERISA or Section 4975 of
the Code) in addition to those explicitly undertaken in this Trust Agreement
which Opinion of Counsel shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar or Depositor.
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As long as two or more Persons are holders of Investor
Certificates, the Investor Certificates may only be transferred in accordance
with the following provisions: before any Investor Certificates may be
transferred to any Person, the Owner Trustee shall have received the consent to
such transfer by holder of Investor Certificates representing ownership of more
than 50% of the beneficial interest in the Trust, excluding for this purpose
the beneficial interest represented by the Investor Certificates owned by the
transferor or (unless the transferor and its Affiliates are the only holders of
Investor Certificates) any Affiliate thereof; provided, however, that no
consent shall be required to a transfer of Investor Certificates to the
Depositor upon the Closing Date.
No offer, sale, transfer or other disposition (including
pledge) of any Investor Certificate shall be made to any transferee unless such
transferee certifies to the Owner Trustee that the net worth of such transferee
equals or exceeds $500,000 other than its interest in the Investor
Certificates. The foregoing requirement shall not apply to the Depositor so
long as it is the Holder of 100% of the Investor Certificates, but shall apply
to the Depositor upon any sale of a portion of the Investor Certificates.
No offer, sale, transfer or other disposition (including any
pledge or sale under a repurchase transaction) of any Investor 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 purposes (other than a
Qualified REIT Subsidiary), (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.
Notwithstanding the foregoing, the provisions of this paragraph shall not apply
to the initial transfer of the Investor Certificates to the Depositor.
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No offer, sale, transfer or other disposition (including
pledge) of any Investor Certificate shall be made to any affiliate of the
Depositor or the Issuer, other than the initial transfer of the Investor
Certificate to the Depositor.
3.04. Lost, Stolen, Mutilated or Destroyed Investor
Certificates. If (a) a mutilated Investor Certificate is surrendered to the
Certificate Registrar, or (b) the Certificate Registrar receives evidence to
its satisfaction that the Investor Certificate has been destroyed, lost or
stolen, and there is delivered to the Certificate Registrar proof of ownership
satisfactory to the Certificate Registrar, together with such security or
indemnity as required by the Certificate Registrar and the Owner Trustee to
save each of them harmless, then in the absence of notice to the Certificate
Registrar or the Owner Trustee that such Investor 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 Investor Certificates, a new Investor Certificate of like tenor and
denomination. In connection with the issuance of any new Investor Certificate
under this Section 3.04, 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 Investor Certificate issued pursuant to this Section
3.04 shall constitute conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Investor
Certificate shall be found at any time.
3.05. 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 Investor Certificate is registered in the Certificate Register
as the owner of such Investor 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
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Trustee, the Certificate Registrar or any Certificate Paying Agent shall be
bound by any notice to the contrary.
3.06. Access to List of Certificateholders' Names and
Addresses. The Certificate Registrar shall furnish or cause to be furnished to
the Depositor or the Owner Trustee, within 15 days after receipt by the
Certificate Registrar of a written request therefor from the Depositor or the
Owner Trustee, a list, in such form as the Depositor 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 an Investor Certificate, shall be deemed to have agreed
not to hold any of the Trust, the Depositor, 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.
3.07. Covenants of Certificateholders to Indemnify Indenture
Trustee. The Certificateholders shall be liable to the Indenture Trustee for
the payment of the Indenture Trustee's fees, indemnity and expenses pursuant to
Section 6.07 of the Indenture in the event that the Trust fails to pay such
fees, indemnity and expenses but only to the extent payable out of amounts
actually received by the Certificateholders from distributions of the Trust
pursuant to Section 4.01 hereof made on or before the date of demand for such
payment by the Indenture Trustee.
3.08. Maintenance of Office or Agency. The Owner Trustee on
behalf of the Trust, shall maintain in ___________, Delaware, an office or
offices or agency or agencies where Investor 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 Investor Certificates and the
Operative Documents may be served. The Owner Trustee initially designates the
Corporate Trust Office as its office for such purposes. The Owner Trustee
shall give prompt written notice to the Depositor and the Certificateholders of
any change in the location of the Certificate Register or any such office or
agency.
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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 Investor Certificates and Section 4.01 hereof from payments remitted to
the Certificate Paying Agent by the Trustee pursuant to Section 3.01 of the
Indenture. The Trust hereby appoints _________________________ as Certificate
Paying Agent and _______________________________ 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 Investor 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 it has actual knowledge in the making of any
payment required to be made with respect to the Investor 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) 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 Investor 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
Investor Certificates of any applicable withholding taxes imposed
thereon and with respect to any applicable reporting requirements in
connection therewith;
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(vi) deliver to the Owner Trustee a copy of the
report to Bondholders prepared with respect to each Payment Date by
the Master Servicer pursuant to Section 8.06 of the Indenture; and
(vii) 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. _________________________________
shall be permitted to resign as Certificate Paying Agent upon 30 days written
notice to the Owner Trustee; provided _________________________________________
is also resigning as Paying Agent under the Indenture at such time. In the
event that ___________________________________________ shall no longer be 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 this Section 3.09 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, 6.06 and 7.01 shall apply to the
Certificate Paying Agent to the extent applicable. 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 Trustee, each remittance received by the Certificate Paying Agent
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with respect to payments made pursuant to the Indenture. The Certificate
Paying Agent shall make all distributions to Investor Certificates, from moneys
on deposit in the Certificate Distribution Account.
(d) The Certificate Paying Agent shall be paid by the
Indenture Trustee.
ARTICLE IV
PAYMENTS AND DISTRIBUTIONS
4.01. Payments. (a) Any amounts paid to the Owner Trustee
by the Indenture Trustee free and clear of the lien of the Indenture shall be
applied in the following order:
(i) to pay any amounts owing to the Owner Trustee or the
Bank, as the case may be, as then due under this Agreement;
(ii) to pay fees then due under the Management Agreement;
and
(iii) to pay any operating expenses of the Trust.
Any sums remaining after such application shall be distributed monthly to the
Certificateholders pursuant to Section 3(h)(viii) of the Master Servicing
Agreement no later than the ____________ day of each [month] or, if such day is
not a Business Day, on the next succeeding Business Day. All Net Proceeds from
the Bonds shall be distributed to, or at the direction of, the Depositor in
immediately available funds.
All payments to be made under this Agreement by the Owner
Trustee shall be made only from the income and proceeds, including Net Proceeds
From the Bonds, of the Trust Estate and only to the extent that the Owner
Trustee has received such income or proceeds. The Bank shall not be liable to
the Owner, the Indenture Trustee or the Manager for any amounts payable
pursuant to this Section 4.01 except to the extent that non-
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payment is due to the Owner Trustee's acts or omissions amounting to willful
misconduct or gross negligence.
(b) In the event that any withholding tax is imposed on the
distributions (or allocations of income) to the Certificateholders, such tax
shall reduce the amount otherwise distributable to the Certificateholders in
accordance with this Section 4.01. 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 own 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 Bondholders.
4.02. Method of Payment. Subject to Section 8.01(c),
distributions required to be made to the Certificateholders on any Payment Date
as provided in Section 4.01 shall be made to the Certificateholders of record
on the preceding Record Date either by, in the case of any Certificateholder
owning Certificates having a Percentage Interest of 100%, 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.
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4.03. Tax Returns. The Master Servicer 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 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 4.01 of this Trust Agreement with respect to income or
distributions to Certificateholders and prepare or cause to be prepared the
appropriate forms relating thereto. The Owner Trustee shall sign all tax and
information returns prepared or caused to be prepared by the Master Servicer
pursuant to this Section 4.03 at the request of the Master Servicer, and in
doing so shall rely entirely upon, and shall have no liability for information
or calculations provided by, the Master Servicer.
4.04. Statements to Certificateholders. On each Payment
Date, the Certificate Paying Agent shall send to each Certificateholder the
statement or statements provided to the Owner Trustee and the Certificate
Paying Agent by the Master Servicer pursuant to Section 8.06 of the Indenture
with respect to such Payment Date.
4.05. Reports to Internal Revenue Service and Others. The
Trust will (i) cause to be prepared all Periodic Filings, (ii) make such
elections and file such tax returns relating to the Trust as the Depositor may
direct in a notice delivered to the Owner Trustee in accordance with Section
10.05, and (iii) cause to be mailed to the Depositor any or all of such reports
and tax returns within 90 days of the end of the Fiscal Year; provided,
however, that the Trust shall be deemed to be in compliance with this provision
by its execution of the Management Agreement.
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ARTICLE V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE; ACTION BY CERTIFICATEHOLDERS
5.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Operative 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 Operative 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,
to take all actions required of the Trust pursuant to the Operative Documents.
5.02. 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 Operative Documents to
which the Trust is a party and to administer the Trust in the interest of the
Certificateholders, subject to the Operative Documents and in accordance with
the provisions of this Trust Agreement.
5.03. Action Upon Instruction. (a) Subject to Article V and
in accordance with the terms of the Operative 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 V.
(b) Notwithstanding the foregoing, the Owner Trustee
shall not be required to take any action hereunder or under any Operative
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
Operative Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide
between alternative courses of action permitted or required by
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the terms of this Trust Agreement or under any Operative Document, or in the
event that the Owner Trustee is unsure as to the application of any provision
of this Trust Agreement or any Operative 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
(with a copy to the Insurer) 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 received, the
Owner Trustee shall not be liable on account of such action to any Person. If
the Owners 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 Operative 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.
5.04. 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 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
Operative Documents and (iii) in accordance with any document or instruction
delivered to the Owner Trustee pursuant to Section 5.03; and no implied duties
or obligations shall be read into this Trust Agreement or any Operative
Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or
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continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Trust Agreement or any Operative 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 Trust Estate that result form actions by, or claims against the Owner
Trustee that are not related to the ownership or the administration of the
Trust Estate.
5.05. Restrictions. (a) The Owner Trustee shall not take
any action (x) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (y) that, to the actual knowledge of the Owner Trustee, would
result in the Trust becoming taxable as a corporation (other than as a
Qualified REIT Subsidiary) for federal income tax purposes or (z) would result
in the amendment or modification of the Operative Documents or this Trust
Agreement without the prior written consent of the Insurer. The
Certificateholders shall not direct the Owner Trustee to take action that would
violate the provisions of this Section 5.05.
(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 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 [3.09(a)] of the Indenture.
5.06. 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:
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(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 owning under the Pledged Mortgages) 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 owning under the Pledged Mortgages);
(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
Business Trust Statute);
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Bondholder is required;
(d) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Bondholder is not required
and such amendment materially adversely affects the interests of the
Certificateholders; or
(e) the appointment pursuant to the Indenture of a
successor Bond 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 Bond Registrar, Paying Agent,
Indenture Trustee, Certificate Registrar or Certificate Paying Agent of its
obligations under the Indenture or this Trust Agreement, as applicable.
5.07. Action by Certificateholders with Respect to Certain
Matters. (a) The Owner Trustee shall not have the power, except upon the
direction of the Certificateholders, and with the consent of the Insurer, to
(i) remove the Master Servicer under the Master Servicing Agreement pursuant to
Sections 7(a) thereof or (ii) except as expressly provided in the Operative
Documents, sell the Pledged Mortgages after the termination of the Indenture.
The Owner Trustee shall take the actions referred to in the preceding sentence
only upon written instructions signed by the Certificateholders and with the
consent of the Insurer.
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(b) Upon the written request of any Certificateholder (a
"Proposer"), the Owner Trustee shall distribute promptly to all
Certificateholders any request for action or consent of Certificateholders
submitted by such Proposer, with a copy to the Manager and the Insurer. The
Owner Trustee shall provide a reasonable method for collecting responses to
such request and shall tabulate and report the results thereof to the
Certificateholders, the Manager and the Insurer. The Owner Trustee shall have
no responsibility or duty to determine if any such proposed action or consent
is permitted under the terms of this Trust Agreement or applicable law.
5.08. 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 with the consent of the Insurer, the
Bondholders 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 and one day following termination of this Trust Agreement.
5.09. 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 Operative Documents or would be contrary to Section 2.03 nor shall the
Owner Trustee be obligated to follow any such direction, if given.
5.10. 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 Investor Certificates evidencing not
less than a majority of the outstanding Percentage Interests of the Investor
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 Investor Certificates evidencing not less
than a majority of the outstanding Percentage
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Interests of the Investor Certificates at the time of the delivery of such
notice.
5.11. Optional Redemption. Upon receipt of written
instructions provided to the Owner Trustee by the Holder or Holders of 100% of
the Investor Certificates, the Owner Trustee shall cause the Issuer to redeem
the Bonds in accordance with Section 10.01 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 Indenture Trustee an amount
equal to the aggregate redemption price specified under Section 10.01 of the
Indenture, which shall be applied by the Indenture Trustee solely to make such
redemption payments. The Owner Trustee shall not have the power to exercise
the right of the Issuer to redeem the Bonds pursuant to Section 10.01 of the
Indenture, except as provided above.
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
6.01. Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform the same but only upon
the terms of this Agreement. The Owner Trustee also agrees to disburse all
moneys actually received by it constituting part of the Trust Estate upon the
terms of this Agreement. The Bank shall not be answerable or accountable under
any circumstances, except (i) for its own wilful misconduct or gross
negligence, (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 6.04, (iii) for liabilities arising from the
failure by the Bank to perform obligations expressly undertaken by it in the
last sentence of Section 5.04(a), or (iv) for taxes, fees or other charges on
based on or measured by any fees, commissions or compensation received by the
Bank in connection with any of the transactions contemplated by this Agreement,
the Operative Agreements or the Bonds. In particular, but not by way of
limitation:
(a) The Bank shall not be liable for any error of
judgment, not constituting gross negligence, made in good faith by a
responsible officer of the Owner Trustee;
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(b) The Bank shall not be liable with respect to
any action taken or omitted to be taken by the Owner Trustee in good
faith in accordance with the instructions of the Certificateholders;
(c) No provision of this Agreement shall require
the Bank to expend or risk funds or otherwise incur any financial
liability in the performance of any of the Owner Trustee's rights or
powers hereunder if the Bank 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;
(d) Under no circumstance shall the Bank be
liable for indebtedness evidenced by any Bond;
(e) The Bank shall not be liable with respect to
any action taken or omitted to be taken by the Manager under the
Management Agreement and the Bank shall not be obligated to perform
any obligations or duties under this Agreement or the Bond Agreements
which are to be performed by the Manager under the Management
Agreement;
(f) The Bank shall not be responsible for or in
respect of the recitals herein, the validity or sufficiency of this
Agreement or for the due execution hereof by the Depositor or for the
form, character, genuineness, sufficiency, value or validity of any
Collateral or for or in respect of the validity or sufficiency of the
Indenture, and the Bank shall in no event assume or incur any
liability, duty or obligation to any Bondholder, the Depositor or to
the Certificateholders, other than as expressly provided for herein;
and
(g) Under no circumstances shall the Bank be
responsible for the action or inaction of the Officers, the Manager or
the Master Servicer, nor shall the Bank be responsible for monitoring
the performance of the Officers' duties hereunder, the Manager's
duties under the Management Agreement or the Master Servicer's duties
under the Master Servicing Agreement.
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6.02. Furnishing of Documents. The Owner Trustee will
furnish to the Certificateholders and the Manager, promptly upon receipt
thereof, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee hereunder or under the Bond Agreements unless the
Certificateholders and the Manager shall have already received the same.
6.03. Books and Records. The Owner Trustee shall keep or
cause to be kept proper books of record and account of all the transactions
under this Agreement, including a record of the name and address of the Holders
of the Investor Certificates.
6.04. Representations and Warranties of the Bank. The Bank
represents and warrants as follows:
(a) the Bank is a banking corporation duly
created, validly existing and in good standing under the laws of the
State of Delaware and has the full corporate power, authority and
legal right to execute, deliver and perform this Agreement, the
Indenture and each of the other Operative Agreements to which it or
the Owner Trustee, as the case may be, is a party; the execution and
delivery by the Bank of this Agreement, and by the Owner Trustee of
the Indenture and each of the other Operative Agreements to which it
is a party and the performance by the Bank or the Owner Trustee, as
the case may be, of its obligations under this Agreement, the
Indenture and each of the other Operative Documents to which it is a
party have been duly authorized by all necessary corporate action on
the part of the Bank and, assuming the due authorization, execution
and delivery thereof by the other parties thereto, constitutes a
legal, valid and binding obligation of the Bank or the Owner Trustee,
as the case may be, enforceable against the Bank or the Owner Trustee,
as the case may be, in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be
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36
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought;
(b) neither the Bank nor anyone authorized to act
on its behalf has offered any interest in and to the Trust for sale
to, or solicited any offer to acquire any of the same from, anyone;
(c) the execution and delivery by the Bank of,
and the performance by it and the Owner Trustee, as the case may be,
of their obligations under this Agreement, the Indenture and the other
Operative Documents to which they are a party are not in violation of
any indenture, agreement or other instrument, license, judgment or
order applicable to the Bank;
(d) the execution and delivery by the Bank of,
and its and the Owner Trustee's performance of their obligations
under, this Agreement, the Indenture and the other Operative Documents
to which they are a party do not require the consent or approval of,
the giving of notice to, or the registration with, or the taking of
any other action with respect to, any governmental authority or agency
of the State of Delaware (except as may be required by the Delaware
securities law or the Business Trust Statute or as may be required to
enforce the lien of the Indenture); and
(e) no litigation is pending or, to the best of
the Bank's knowledge, threatened against the Bank or the Owner
Trustee, as the case may be, that would materially and adversely
affect the execution, delivery or enforceability of this Agreement,
the Investor Certificates, the Bonds, the Indenture or any of the
other Operative Documents to which it is a party, or the ability of
the Bank or the Owner Trustee, as the case may be, to perform any of
its obligations thereunder in accordance with the terms thereof.
6.05. No Segregation of Moneys; No Interest. Except as
otherwise provided herein or in the Indenture, moneys received by the Owner
Trustee hereunder need not be segregated in any manner except to the extent
required by law and may be deposited
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under such general conditions as may be prescribed by law, and neither the
Owner Trustee nor the Bank shall be liable for any interest thereon.
6.06. 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, bond
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 manner of ascertainment 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 and by the
treasurer or any assistant treasurer or the secretary or any assistant
secretary 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 its exercise or administration of the trusts and
powers hereunder, including its obligations under Section 5.02(b) and any
duties or obligations under the Indenture and under the other Operative
Documents, the Owner Trustee may employ agents and attorneys and enter into
agreements (including the Management Agreement and the Master Servicing
Agreement) with any of them, and the Owner Trustee shall not be answerable for
the default or misconduct of any such agents or attorneys if such agents or
attorneys shall have been selected by the Owner Trustee with reasonable care.
If, and to the extent, the Depositor shall have failed to reimburse the Trustee
for all reasonable expenses incurred pursuant to this Section 6.06(b), as
provided in Section 7.01, the Owner Trustee may seek reimbursement therefor
from the Trust Estate.
(c) In the administration of the trusts hereunder or in
the performance of its duties and obligations under any of the Bond Agreements,
the Owner Trustee may consult with counsel,
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accountants and other skilled Persons to be selected and employed by it, and
the Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the reasonable advice or opinion of any
such counsel, accountants or other skilled Persons and not contrary to this
Agreement. If, and to the extent, the Depositor shall have failed to reimburse
the Trustee for all reasonable expenses incurred pursuant to this Section
6.06(c), as provided in Section 7.01, the Owner Trustee may seek reimbursement
therefor from the Trust Estate.
6.07. Not Acting in Individual Capacity. Except as provided
in this Article VI, in accepting the trusts hereby created the Owner Trustee
acts solely as 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 the Bond Agreements shall look only to the Trust
Estate for payment or satisfaction thereof.
6.08. Corporate Existence. Subject to Section 9.01, the Bank
will keep in full effect its existence, rights and franchises as a bank and
trust company under the laws of the State of Delaware.
ARTICLE VII
INDEMNIFICATION BY DEPOSITOR
7.01. Trust Expenses. The Depositor shall pay (or reimburse
the Bank for) all reasonable expenses of the Owner Trustee hereunder,
including, without limitation, the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may employ in connection with the exercise and performance of its
rights and duties under the Bond Agreements.
7.02. Indemnification. The Depositor hereby agrees to assume
liability for, and indemnify the Bank and its successors, assigns, agents and
servants, against and from, any and all liabilities, obligations, losses,
damages, taxes, claims, actions, suits, costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature
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39
whatsoever (collectively, "Expenses") which may be imposed on, incurred by or
asserted at any time against the Bank (whether or not indemnified against by
other parties) in any way relating to or arising out of this Agreement, any
Bond Agreement, the Collateral, the administration of the Trust Estate or the
action or inaction of the Owner Trustee hereunder, except only that the
Depositor shall not be required to indemnify the Bank for Expenses arising or
resulting from any of the matters described in the third sentence of Section
6.01. The indemnities contained in this Section 7.02 shall survive the
termination of this Agreement.
7.03. Compensation. The Bank shall receive as compensation
for the Owner Trustee's services hereunder such ordinary fees as are fair,
reasonable and customary for the performance of such services and as may
heretofore and from time to time hereafter be separately agreed upon between
the Depositor and the Owner Trustee. The Bank shall be compensated reasonably
for any extraordinary services rendered by the Owner Trustee hereunder.
7.04. Lien on Trust Estate. The Bank shall have a lien on
the Trust Estate for any compensation or indemnity due hereunder, such lien to
be subject only to prior liens of the Indenture. The Bank shall not bring any
proceedings to foreclose on such lien if and to the extent the Trust Estate is
subject to the lien of the Indenture.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
8.01. Termination of Trust Agreement. (a) This Agreement
and the trusts created hereby shall terminate and the Trust Estate shall,
subject to the Indenture and Section 4.01, be distributed to the
Certificateholders, and this Agreement shall be of no further force or effect,
upon the earlier of (i) the sale or other final disposition by the Indenture
Trustee or the Owner Trustee, as the case may be, of all the Trust Estate and
the final distribution by the Indenture Trustee or the Owner Trustee, as the
case may be, of all moneys or other property or
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proceeds of the Trust Estate in accordance with the terms of the Indenture and
Section 4.01, and (ii) the expiration of 21 years from the death of the
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. James's, living on the date of this
Agreement. The bankruptcy of any Certificateholder shall not operate to
terminate this Agreement, nor entitle such Certificateholder's legal
representatives to claim an accounting or to take any action or proceeding in
any court for a partition or winding up of the Trust Estate, nor otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.01(a), neither the
Depositor nor the Certificateholders shall be entitled to revoke the Trust
established hereunder.
(c) Notice of any termination of the Trust, specifying
the Payment Date upon which Certificateholders shall surrender their Investor
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 and the Insurer mailed within five Business
Days of receipt of notice of the final payment on the Bonds from the Indenture
Trustee, stating (i) the Payment Date upon or with respect to which final
payment of the Investor Certificates shall be made upon presentation and
surrender of the Investor 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
Investor 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 Investor
Certificates, the Certificate Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Payment Date pursuant to
Section 4.01.
In the event that all of the Certificateholders shall not
surrender their Investor Certificates for cancellation within
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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 Investor 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 Investor Certificates was to have been made
pursuant to Section 3.03 of the Indenture, all the Investor 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 Investor
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 Holders of the Investor
Certificates.
(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 of the Business Trust Statute.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL TRUSTEES
9.01. Resignation of Owner Trustee; Appointment of Successor.
(a) The Owner Trustee may resign at any time without cause by giving at least
60 days' prior written notice to the Owner, such resignation to be effective on
the acceptance of appointment by a successor Owner Trustee under (b) below. In
addition, the Owner Trustee may be removed (i) at any time by the Depositor,
without cause, by an instrument in writing delivered to the Owner Trustee, such
removal to be effective upon the acceptance of appointment by a successor Owner
Trustee under Section 9.01(b) or (ii) by action of the Certificateholders
holding Percentage Interests aggregating at least 66 2/3%. In
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case of the resignation or removal of the Owner Trustee, the Depositor may
appoint a successor Owner Trustee by an instrument signed by the Depositor. If
a successor Owner Trustee shall not have been appointed within 30 days after
the giving of written notice of such resignation or the delivery of the written
instrument with respect to such removal, the Owner Trustee or the Depositor may
apply to any court of competent jurisdiction to appoint a successor Owner
Trustee to act until such time, if any, as a successor shall have been
appointed as above provided. Any successor Owner Trustee so appointed by such
court shall immediately and without further act be superseded by any successor
Owner Trustee appointed as above provided within one year from the date of the
appointment by such court.
(b) Any successor Owner Trustee, however appointed, shall
execute and deliver to the predecessor Owner Trustee an instrument accepting
such appointment, and thereupon such successor Owner Trustee, without further
act, shall become vested with all the estates, properties, rights, powers,
duties and trusts of the predecessor Owner Trustee in the trusts hereunder with
like effect as if originally named the Owner Trustee herein; but nevertheless,
upon the written request of such successor Owner Trustee, such predecessor
Owner Trustee shall execute and deliver an instrument (presented to it in
execution form) transferring to such successor Owner Trustee, upon the trusts
herein expressed, all the estates, properties, rights, powers, duties and
trusts of such predecessor Owner Trustee, and such predecessor Owner Trustee
shall duly assign, transfer, deliver and pay over to such successor Owner
Trustee all moneys or other property then held or subsequently received by such
predecessor Owner Trustee upon the trusts herein expressed.
(c) Any successor Owner Trustee, however appointed, shall
be a bank or trust company satisfying the provisions of Section 3807(a) of the
Business Trust Statute and having a combined capital and surplus of at least
$50,000,000, if there be such an institution willing, able and legally
qualified to perform the duties of the Owner Trustee hereunder upon reasonable
or customary terms.
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(d) Any corporation into which the Owner Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Owner
Trustee shall be a party, or any corporation to which substantially all the
corporate trust business of the Owner Trustee may be transferred, shall,
subject to the terms of (c) above, be the Owner Trustee under this Agreement
without further act.
(e) Upon the happening of any of the events described in
this Section 9.01, the successor Owner Trustee shall cause an amendment to the
Certificate of Trust to be filed with the Secretary of State, in accordance
with the provisions of Section 3810 of the Business Trust Statute, indicating
the change with respect to the Owner Trustee's identity.
9.02. Appointment of Additional Trustees. At any time or
times for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Owner
Trustee, by an instrument in writing, may appoint one or more individuals or
corporations to act as separate trustee or separate trustees of all or any part
of the Trust Estate to the full extent that a local law makes it necessary for
such separate trustee or separate trustees to act alone. No trustee shall be
liable for the acts or omissions of any other trustee appointed hereunder.
ARTICLE X
MISCELLANEOUS
10.01. Supplements and Amendments. At the written request of
the Depositor, this Agreement (other than Sections 8.01 and 10.02 and this
Section 10.01) shall be amended by a written instrument signed by the Owner
Trustee and the Depositor, but if in the opinion of the Owner Trustee any
instrument required to be so executed adversely affects any right, duty or
liability of, or immunity or indemnity in favor of, the Owner Trustee under
this Agreement or any of the documents contemplated hereby to which the Owner
Trustee is a party, or would cause or result in any conflict with or breach of
any terms, conditions or
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provisions of, or default under, the charter documents or bylaws of the Bank or
any Operative Agreement, the Owner Trustee may in its sole discretion decline
to execute such instrument.
10.02. No Legal Title to Trust Estate in Certificateholders.
The Certificateholders shall not have legal title to any part of the Trust
Estate and shall only be entitled to receive distributions with respect to its
undivided beneficial interest therein pursuant to Section 4.01 once all amounts
then owing with respect to the Bonds have been paid in accordance with the
Indenture. No transfer, by operation of law of any right, title and interest
of the Certificateholders in and to its undivided beneficial interest in the
Trust Estate or hereunder shall operate to terminate this Agreement or the
trusts hereunder or entitle any successor transferee to an accounting or to the
transfer to it of legal title to any part of the Trust Estate.
10.03. Pledge of Collateral by Owner Trustee Is Binding. The
pledge of the Collateral to the Indenture Trustee by the Trust made under the
Indenture and pursuant to the terms of this Agreement shall bind the
Certificateholders and shall be effective to transfer or convey the rights of
the Trust and the Certificateholders in and to such Collateral to the extent
set forth in the Indenture. No purchaser or other grantee shall be required to
inquire as to the authorization, necessity, expediency or regularity of such
pledge or as to the application of any proceeds with respect thereto by the
Owner Trustee.
10.04. Limitations on Rights of Others. Nothing in this
Agreement, whether express or implied (except for Section 7.04), shall be
construed to give to any Person other than the Trust and the Certificateholders
any legal or equitable right in the Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein;
provided, however, that the parties hereto acknowledge and agree that the
Indenture Trustee is a third-party beneficiary under Section 3.05 hereof.
10.05. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and delivered by
hand or mailed by certified mail, postage
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prepaid, if to the Owner Trustee or the Trust, addressed to it at
_______________________________________________________________________________
__________________________________, Attention: Corporate Trust Administration or
to such other address as the Owner Trustee may have set forth in a written
notice to the Certificateholders and the Depositor addressed to it at the
address set forth for such Certificateholders in the register maintained by the
Owner Trustee. Whenever any notice in writing is required to be given by the
Owner Trustee or the Manager, such notice shall be deemed given and such
requirement satisfied if such notice is mailed by certified mail, postage
prepaid, addressed as provided above.
10.06. Severability. Any provision of this Agreement which
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.
10.07. Separate Counterparts. This 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.
10.08. Successors and Assigns. All representations,
warranties, covenants and agreements contained herein shall be binding upon,
and inure to the benefit of, the Owner Trustee and its successors and assigns
and the Depositor and each Certificateholder and its respective successors, all
as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Certificateholder shall bind the successors of such
Certificateholder.
10.09. 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.
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10.10. Governing Law. This Agreement shall in all respects
be governed by, and construed in accordance with, the laws of the State of
Delaware without reference to the conflict of laws provisions thereof,
including all matters of construction, validity and performance.
10.11. No Petition. The Owner Trustee, by entering into this
Agreement, the Certificateholders, by accepting the Investor Certificates, and
the Indenture Trustee and each Bondholder, by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against the Depositor or the Issuer, or join in any institution against the
Depositor or the Issuer of, any bankruptcy proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Investor Certificate, the Bonds, this Agreement or any of the
Operative Agreements.
ARTICLE XI
OFFICERS
11.01. Appointment of Officers. The Trust may have one or
more Officers who are hereby empowered to take and are responsible for
performing all ministerial duties on behalf of the Trust pursuant to this
Agreement and Operative Agreements, including, without limitation, the
execution of the Officers' Certificate (as defined in the Indenture), the
Issuer Order (as defined in the Indenture), the Issuer Request (as defined in
the Indenture), the annual compliance report required under Section 3.10 of the
Indenture, and annual reports, documents and other reports which the Trust is
required to file with the Securities and Exchange Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended. Each
of the Chairman of the Board, the Chief Executive Officer, the President, each
Senior Vice President and each Vice President of the Depositor is hereby
appointed as an Officer of the Trust. The Depositor shall promptly deliver to
the Owner Trustee and the Indenture Trustee a list of its officers who shall
become the Officers of the Trust pursuant to this Section 11.01.
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11.02. Officers to Provide Information to the Owner Trustee.
It shall be the duty of each Officer to keep the Owner Trustee reasonably
informed as to material events relating to the Trust, including, without
limitation, all claims pending or threatened against the Trust, the purchase
and sale of any material portion of the Trust Estate and the execution by such
Officer on behalf of the Trust of any material agreements or instruments.
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IN WITNESS WHEREOF, the parties hereto have caused this
Deposit Trust Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above written.
,
---------------------------------------
not in its individual capacity
but solely as Owner Trustee
By:
------------------------------------
Its:
-----------------------------------
SEQUOIA MORTGAGE FUNDING
CORPORATION
By:
------------------------------------
Its:
-----------------------------------
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EXHIBIT A
[Form of Investor Certificate]
[Face]
THIS INVESTOR 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 3.03 OF THE TRUST AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS INVESTOR CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE
TRANSFEREE OF THIS INVESTOR CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS
NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS
OF 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 INVESTOR CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF 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 OR HOLDING OF THIS INVESTOR CERTIFICATE WILL
NOT RESULT IN THE ASSETS OF THE TRUST ESTATE BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF THE CODE, WILL NOT CONSTITUTE OR RESULT IN
A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR SECTION 407 OF
ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE OWNER TRUSTEE OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY.
NO TRANSFER OF THIS INVESTOR CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF
A-1
50
NON-FOREIGN STATUS CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR
CORPORATION UNDER U.S. LAW.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF 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 OPERATIVE DOCUMENTS.
A-2
51
Certificate No.
Original principal amount ("Denomination") of this
Investor Certificate: $___________
Aggregate Denominations of all Investor Certificates: $
Pass-Through Rate:
Cut-Off Date:
First Payment Date ____________, _______
CUSIP NO. ___________
SEQUOIA MORTGAGE TRUST 199_-_
Evidencing a fractional undivided equity interest in the Trust Estate,
the property of which consists primarily of the Mortgage Collateral in Sequoia
Mortgage Trust 199_-_ (the "Trust"), a Delaware business trust formed by
SEQUOIA MORTGAGE FUNDING CORP., AS DEPOSITOR,
pursuant to the Trust Agreement referred to below.
This certifies that [name of Holder] is the registered owner of the
Percentage Interest represented hereby.
The Trust was created pursuant to a Trust Agreement dated as of
___________ (as amended and supplemented from time to time, the "Trust
Agreement") between the Depositor and ___________________, as owner trustee (as
amended and supplemented from time to time, the "Owner Trustee", which term
includes any successor entity under the Trust Agreement), a summary of certain
of the pertinent provisions of which is set forth hereinafter. This Investor
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
Investor Certificate by virtue of the acceptance hereof assents and by which
such Holder is bound.
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This Investor Certificate is one of a duly authorized issue of Trust
Certificates, Series 199_-_ (herein called the "Investor 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 Investor Certificates and the terms upon which the Investor
Certificates are executed and delivered. All terms used in this Investor
Certificate which are defined in the Trust Agreement shall have the meanings
assigned to them in the Trust Agreement. The Trust Estate consists of the
Mortgage Collateral in the Sequoia Mortgage Trust 199_-_ [and a Bond Insurance
Policy]. The rights of the Holders of the Investor Certificates are
subordinated to the rights of the Holders of the Bonds, as set forth in the
Indenture.
There will be distributed on the ___________ day of each month or, if
such ___________ day is not a Business Day, the next Business Day (each, a
"Payment Date"), commencing in ___________, to the Person in whose name this
Investor Certificate is registered at the close of business on the last
Business Day of the month preceding the month of such Payment Date (the "Record
Date"), such Certificateholder's Percentage Interest (obtained by dividing the
Denomination of this Investor Certificate by the aggregate Denominations of all
Investor Certificates) in the amount to be distributed to Certificateholders on
such Payment Date.
The Certificateholder, by its acceptance of this Investor Certificate,
agrees that it will look solely to the funds on deposit in the [Certificate
Distribution 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 Investor 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 Investor Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Investor Certificate are
subordinated to the rights of the Bondholders as described in the Indenture,
dated as of
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__________, between the Trust and _____________, as Indenture Trustee (the
"Indenture").
The Depositor and each Certificateholder, by acceptance of an Investor
Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Investor Certificates for federal, state and local income tax
purposes as an equity interest in the Trust.
Each Certificateholder, by its acceptance of an Investor 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 Investor Certificates, the Bonds, the Trust Agreement or any of the
Operative Documents.
Distributions on this Investor 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 Investor 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 Investor 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 Investor
Certificate at the office or agency maintained by the Certificate Registrar for
that purpose by the Trust in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Investor
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 Investor
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Certificate shall not entitle the Holder hereof to any benefit under the Trust
Agreement or be valid for any purpose.
THIS INVESTOR 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.
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IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Investor Certificate to be duly
executed.
__________________________, not in its
individual capacity but solely as Owner
Trustee
Dated: By:
-----------------------------------
Authorized Signatory
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[REVERSE OF INVESTOR CERTIFICATE]
The Investor Certificates do not represent an obligation of, or an
interest in, the Depositor, the Master Servicer, the Indenture Trustee, 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 Operative Documents. In
addition, this Investor 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 Collateral, all as more
specifically set forth herein. 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 the consent of the Insurer and an
Opinion of Counsel to the Owner Trustee to the effect that such amendment
complies with the provisions of the Trust Agreement and, if the Depositor was
not the holder of 100% of the Investor Certificates, 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 the
Rating Agencies that the amendment will not result in the downgrading or
withdrawal of the rating then assigned to any Bond. If the purpose of the
amendment is to prevent the imposition of any federal or state taxes at any
time that any Bond or Investor Certificate 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
A-8
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letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any Bond or (b) the
consent of Holders of the Investor Certificates evidencing a majority of the
Percentage Interests of the Investor 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 Investor Certificate without the consent of the related
Certificateholder, or (ii) reduce the aforesaid percentage of Investor
Certificates the Holders of which are required to consent to any such amendment
without the consent of the Holders of all such Investor Certificates then
outstanding.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Investor Certificate is registerable in
the Certificate Register upon surrender of this Investor Certificate for
registration of transfer at the offices or agencies of the Certificate
Registrar maintained by the Trust in the Borough of Manhattan, The City of New
York, 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 Investor
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
_____________________.
Except as provided in the Trust Agreement, the Investor Certificates
are issuable only in a minimum Percentage Interest of 10%. As provided in the
Trust Agreement and subject to certain limitations therein set forth, Investor
Certificates are exchangeable for new Investor 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.
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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 Investor
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.
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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 Investor Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
--------------------------------------------------------------------------------
to transfer said Investor 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 Investor 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.
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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)
X-00
00
XXXXXXX X
CERTIFICATE OF TRUST OF
SEQUOIA MORTGAGE TRUST 199_-_
THIS Certificate of Trust of Sequoia Mortgage Trust 199_-_
(the "Trust"), dated ________, __, is being duly executed and filed by
_________________________, a Delaware banking corporation, as trustee, to form
a business trust under the Delaware Business Trust Act (12 DEL. CODE, Sections
3801 ET SEQ.)
1. NAME. The name of the business trust formed hereby is
Sequoia Mortgage Trust 199_-_.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware is ___________,
__________________________, _________, __________, Attention:
_________________________________.
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.
,
--------------------------------------
not in its individual capacity but
solely as owner trustee under a
Trust Agreement dated as of ____, __,
By:
------------------------------------
Name:
Title:
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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 to 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 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the
Owner Trustee and the Depositor (as defined in the
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Trust Agreement (the "Agreement"), dated as of ______, ___ between Sequoia
Mortgage Funding Corporation, as Depositor and ____________, as Owner Trustee
pursuant to Section 3.03 of the Agreement and _________________ as indenture
trustee, as follows:
a. The Buyer understands that 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 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.
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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 Trustee, Owner Trustee, 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, a 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 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 would not constitute or result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code, and would not subject the
Depositor, the Master Servicer, the Trustee or the Trust to any obligation or
liability (including liabilities under ERISA or Section 4975 of the Code) in
addition to those undertaken in the Agreement or any other liability.]
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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:
------------------------------- -------------------------------
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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
----------
(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.
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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
units 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.
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___ INVESTMENT ADVISOR. 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 of 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
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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 and 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 144A
Yes No 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 not 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:
-----------------------------------
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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 of the Buyer's family of Investment Companies, the cost of such
securities was used.
____ The Buyer owned $__________ in securities (other that 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).
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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 advisor 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:
-----------------------------------
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EXHIBIT D
CERTIFICATE OF NON-FOREIGN STATUS
This certificate of Non-Foreign status ("certificate") is delivered
pursuant to Section 3.03 of the Trust Agreement, dated as of _________ __,
19____ (the "Trust Agreement") between Sequoia Mortgage Funding Corporation, as
depositor and ___________________, as owner trustee, in connection with the
acquisition of, transfer to or possession by the undersigned, whether as
beneficial owner (the "Beneficial Owner"), or nominee on behalf of the
Beneficial Owner of the Investor Certificates, (the "Investor 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 Investor 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 an
Non-resident alien for purposes of U.S.
Income Taxation;
2. My (The Beneficial Owner's) name and home
address are:
________________________________________
________________________________________
________________________________________; and
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73
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.
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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.
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75
EXHIBIT E
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
[CERTIFICATE REGISTRAR]
RE: SEQUOIA MORTGAGE TRUST 199_-_
INVESTOR CERTIFICATES, 199_-_,
(THE "INVESTOR CERTIFICATES")
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned
certificates, we certify that (a) we understand that the Investor 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 Investor Certificates, (c) we have had the opportunity to ask questions
of and receive answers from the depositor concerning the purchase of the
Investor Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Investor
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 Investor
Certificates for investment for our own account and not with a view to any
distribution of such Investor Certificates (but without prejudice to our right
at all times to sell or otherwise dispose of the Investor Certificates in
accordance with clause (g) below), (f) we have not offered or sold any Investor
Certificates to, or solicited offers to buy any Investor Certificates from, any
person, or otherwise approached or
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76
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 Investor 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 Investment Letter that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Investor Certificate has
executed and delivered to you an Investment Letter to substantially the same
effect as this Investment Letter, 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
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XXXXXXX X
TRANSFER CERTIFICATE
[Owner Trustee]
[Certificate Paying Agent]
Re: PROPOSED TRANSFER OF INVESTOR CERTIFICATES
Ladies and Gentlemen:
This certification is being made by __________________ (the "Proposed
Transferee") in connection with the proposed transfer to the Proposed
Transferee of a trust certificate (the "Investor Certificate") representing __%
fractional undivided interest in Sequoia Mortgage Trust 199_-_ (the "Trust")
created pursuant to a Deposit Trust Agreement, dated as of ___________ __, 199_
(such agreement, as amended, being referred to herein as the "Deposit Trust
Agreement") between Sequoia Mortgage Funding Corporation and
____________________, as Owner Trustee. Initially capitalized terms used but
not defined herein have the meanings assigned to them in the Deposit Trust
Agreement. The Proposed Transferee hereby certifies as follows:
1. The undersigned is a Person involved in the organization or
operation of the Trust or an affiliate of such a Person within the meaning of
Rule 3a-7 of the Investment Company Act.
2. The Proposed Transferee understands that (a) the Investor
Certificates have not been and will not be registered or qualified under the
Securities Act, or the securities laws of any state, (b) neither the Trust nor
the Owner Trustee is required, and neither intends, to so register or qualify
the Investor Certificates, and (c) the Investor Certificates cannot be resold
unless (i) they are registered and qualified under the Securities Act and the
applicable state securities laws or (ii) an exemption from registration and
qualification is available.
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3. The Proposed Transferee is acquiring the Investor Certificate for
its own account for investment only and not with a view to or for sale or other
transfer in connection with any distribution of the Investor Certificate in any
manner that would violate the Securities Act or any applicable state securities
laws.
4. The Proposed Transferee (a) is an accredited investor having such
knowledge and experience in financial and business matters,and in particular in
such matters related to securities similar to the Investor Certificate, such
that it is capable of evaluating the merits and risks of investment in the
Investor Certificate and (b) is able to bear the economic risks of such an
investment.
5. The Proposed Transferee will not authorize nor has it authorized
any person (a) to offer, pledge, sell, dispose of or otherwise transfer any
Investor Certificate, any interest in any Investor Certificate or any other
similar security to any person in any manner, (b) to solicit any offer to buy
or to accept a pledge, disposition or other transfer of any Investor
Certificate, any interest in any Investor Certificate or any other similar
security from any person in any manner, (c) otherwise to approach or negotiate
with respect to any Investor Certificate, any interest in any Investor
Certificate or any other similar security with any person in any manner, (d) to
make any general solicitation by means of general advertising or in any other
manner, or (e) to take any other action that would constitute a distribution of
any Investor Certificate under the Securities Act, that would render the
disposition of any Investor Certificate a violation of Section 5 of the
Securities Act or any state securities law, or that could require registration
or qualification pursuant thereto. Neither the Proposed Transferee nor anyone
acting on its behalf has offered any Investor Certificate for sale or made any
general solicitation by means of general advertising or in any other manner
with respect to the Investor Certificate. The Proposed Transferee will not
sell or otherwise transfer any Investor Certificates, except in compliance with
the provisions of the Deposit Trust Agreement.
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79
Date:
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Name of Proposed Transferee
---------------------------------------
Signature
---------------------------------------
Name
---------------------------------------
Title
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