TRUST AGREEMENT
Exhibit
4.3
THIS
TRUST AGREEMENT, dated as of [____________], 2007, is made by and among SunTrust
Mortgage Securitization, LLC, a Delaware limited liability company, as depositor
(the “Depositor”), [___________________], a [_____________________], as owner
trustee (the “Owner Trustee”) and is acknowledged and agreed as described herein
by SunTrust Mortgage, Inc., a Virginia corporation (“SunTrust”). The
Depositor and the Owner Trustee hereby agree as follows:
1. The
trust created hereby shall be known as SunTrust
[ ]
Trust, Series 200[ ]-[_] (the “Trust”), in which name the Owner Trustee may
conduct the business of the Trust, make and execute contracts, and xxx and
be
sued.
2. The
Depositor hereby assigns, transfers, conveys and sets over to the Owner Trustee
the sum of $1. The Owner Trustee hereby acknowledges receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Owner Trustee hereby declares that it will hold the
trust estate in trust for the Depositor. It is the intention of the
parties hereto that the Trust created hereby constitute a statutory trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.§ 3801 et
seq. (the “Statutory Trust Statute”) and that this
document constitute the governing instrument of the Trust. The Owner
Trustee is hereby authorized and directed to execute and file a certificate
of
trust with the Delaware Secretary of State in the form attached hereto as
Exhibit A.
3. (a) Except
as otherwise expressly required in Section 2 of this Trust Agreement, the Owner
Trustee shall not have any duty or liability with respect to the administration
of the Trust, the investment of the Trust’s property or the payment of dividends
or other distributions of income or principal to the Trust’s beneficiaries, and
no implied obligations shall be inferred from this Trust Agreement on the part
of the Owner Trustee. The Owner Trustee is authorized and directed to
enter into such other documents and take such other action as the Depositor
specifically directs in written instructions delivered to the Owner Trustee,
provided, however, the Owner Trustee shall not be required to take any action
if
the Owner Trustee shall determine or shall be advised by counsel that such
action is likely to result in personal liability or is contrary to applicable
law or any agreement to which the Owner Trustee is a party. The Owner
Trustee shall not be liable for the acts or omissions of the Depositor or any
other person who acts on behalf of the Trust nor shall the Owner Trustee be
liable for any act or omission by the Owner Trustee in good faith in accordance
with the directions of the Depositor.
(b) The
Owner Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to the same but only upon the terms of this Trust
Agreement. The Owner Trustee shall not be personally liable under any
circumstances, except for its own willful misconduct or gross
negligence. In particular, but not by way of limitation:
A. The
Owner Trustee shall not be personally liable for any error of judgment made
in
good faith by any officer or employee of the Owner Trustee;
B. No
provision of this Trust Agreement shall require the Owner Trustee to expend
or
risk its personal funds or otherwise incur any financial liability in the
performance of its rights or duties hereunder, if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
C. Under
no circumstance shall the Owner Trustee be personally liable for any
representation, warranty, covenant or indebtedness of the Trust;
D. The
Owner Trustee shall not be personally responsible for or in respect of the
genuineness, form or value of the Trust property, the validity or sufficiency
of
this Trust Agreement or for the due execution hereof by the
Depositor;
E. In
the event the Owner Trustee is unsure as to the course of action to be taken
by
it hereunder, the Owner Trustee may request instructions from the Depositor
and
to the extent the Owner Trustee follows such instructions in good faith the
Owner Trustee shall not be liable to any person. In the event that no
instructions are provided within the time requested by the Owner Trustee, the
Owner Trustee shall have no duty or liability for its failure to take any action
or for any action it takes in good faith;
F. All
funds deposited with the Owner Trustee hereunder may be held in a non-interest
bearing trust account and the Owner Trustee shall not be liable for any interest
thereon or for any loss as a result of the investment thereof at the direction
of the Depositor;
G. To
the extent that, at law or in equity, the Owner Trustee has duties and
liabilities relating thereto to the Depositor or the Trust, the Depositor agrees
that such duties and liabilities are replaced by the terms of this Trust
Agreement.
H. The
Owner Trustee shall incur no liability to anyone in acting in good faith upon
any document believed by the Owner Trustee to be genuine and believed by the
Owner Trustee 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 entity 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 Depositor, 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.
I. In
the exercise or administration of the trusts hereunder, the Owner Trustee (i)
may act directly or, at the expense of the Trust, through agents or attorneys,
and the Owner Trustee shall not be liable for the default or misconduct of
such
attorneys or agents if such agents and attorneys shall have been selected by
the
Owner Trustee in good faith, and (ii) may, at the expense of the Trust, consult
with counsel, accountants and other experts, and it shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
advice or opinion of any such counsel, accountants or other
experts.
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J. Except
as expressly provided in this Section 3, in accepting and performing the trusts
hereby created, the Owner Trustee acts solely as Owner Trustee hereunder and
not
in its individual capacity, and all persons having any claim against the Owner
Trustee by reason of the transactions contemplated by this Trust Agreement
shall
look only to the Trust’s property for payment or satisfaction
thereof.
4. For
good and valuable consideration, receipt of which is hereby acknowledged,
SunTrust hereby agrees to (i) compensate the Owner Trustee for its services
hereunder in an amount separately agreed to by SunTrust and the Owner Trustee,
(ii) reimburse the Owner Trustee for all reasonable expenses not otherwise
reimbursed by the Trust (including reasonable fees and expenses of counsel
and
other experts) and (iii) indemnify, defend and hold harmless the Owner Trustee
and any of the officers, directors, employees and agents of the Owner Trustee
(each an “Indemnified Person”) from and against any and all losses, damages,
liabilities, claims, actions, suits, costs, expenses, disbursements (including
reasonable fees and expenses of its counsel), taxes and penalties of any kind
and nature whatsoever (collectively, “Expenses”), to the extent that such
Expenses arise out of or are imposed upon or asserted at any time against such
Indemnified Person with respect to the performance of this Trust Agreement,
the
creation, operation or termination of the Trust or the transactions contemplated
hereby; provided, however, that SunTrust shall not be required to
indemnify any Indemnified Person for any Expenses which are a result of the
willful misconduct or gross negligence of such Indemnified Person. In
the event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section, the Indemnified Party’s choice of legal counsel shall
be subject to the approval of SunTrust, which approval shall not be unreasonably
withheld. The obligations of SunTrust under this Section 4 shall
survive the termination of this Trust Agreement.
5. The
Owner Trustee may resign upon thirty days prior notice to the
Depositor. If no successor has been appointed within such thirty day
period, the Owner Trustee may, at the expense of the Trust, petition a court
of
competent jurisdiction to appoint a successor trustee.
6. Upon
written instructions from the Depositor, the Owner Trustee shall dissolve and
terminate the Trust and file in accordance with 12 Del.C. § 3810 a
Certificate of Cancellation with the Delaware Secretary of Sate.
7. This
Trust Agreement constitutes the entire agreement between the parties hereto
with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings between the parties.
8. This
Trust Agreement shall be governed by and 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.
9. This
Trust Agreement may be executed in one or more counterparts, each of which
when
so executed shall be an original and all of which when taken together shall
constitute but one and the same instrument.
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10. This
Trust Agreement may be amended and restated by the parties hereto as necessary
to provide for the operation of the Trust; provided, however, that the Owner
Trustee shall not be required to enter into any amendment hereto which adversely
affects the rights, duties or immunities of the Owner Trustee.
[signature
page follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be
duly
executed by its respective officers hereunto duly authorized, as of the day
and
year first above written.
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as Depositor
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By:
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Name:
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Title:
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[____________________________________],
as Owner Trustee
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By:
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Name:
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Title:
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Acknowledged and Agreed, solely
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for purposes of Section 4:
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SUNTRUST MORTGAGE, INC.
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By:
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Name:
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Title:
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