STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., as Depositor WILMINGTON TRUST COMPANY, as Owner Trustee and WELLS FARGO BANK, N.A., not in its individual capacity, but solely in its capacity as Securities Administrator AMENDMENT TO AMENDED AND RESTATED...
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.,
as
Depositor
WILMINGTON
TRUST COMPANY,
as
Owner
Trustee
and
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity, but solely in its capacity as Securities
Administrator
Trust
Certificates,
Series
2007-2
Table
of Contents
ARTICLE
I
|
Section
1.01.
|
|
|
Section
1.02.
|
Other
Definitional Provisions.
|
ARTICLE
II
Organization
|
Section
2.01.
|
|
|
Section
2.02.
|
Office
|
|
Section
2.03.
|
|
|
Section
2.04.
|
|
|
Section
2.05.
|
Initial
Capital Contribution of Owner Trust Estate
|
|
Section
2.06.
|
Declaration
of Trust
|
|
Section
2.07.
|
Liability
of the Holders of the Certificates
|
|
Section
2.08.
|
Title
to Trust Property
|
|
Section
2.09.
|
|
|
Section
2.10.
|
Representations
and Warranties of the Depositor
|
|
Section
2.11.
|
Investment
Company
|
ARTICLE
III
Conveyance
of the Mortgage Loans; Certificates
|
Section
3.01.
|
Initial
Ownership
|
|
Section
3.02.
|
The
Certificates
|
|
Section
3.03.
|
Authentication
of Certificates
|
|
Section
3.04.
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
|
Section
3.05.
|
Persons
Deemed Certificateholders
|
|
Section
3.06.
|
Access
to List of Certificateholders' Names and Addresses
|
|
Section
3.07.
|
Maintenance
of Office or Agency
|
|
Section
3.08.
|
Securities
Administrator
|
ARTICLE
IV
Authority
and Duties of Owner Trustee
|
Section
4.01.
|
|
|
Section
4.02.
|
|
|
Section
4.03.
|
|
|
Section
4.04.
|
No
Duties Except as Specified under Specified Documents or in
Instructions
|
|
Section
4.05.
|
|
|
Section
4.06.
|
Prior
Notice to Certificateholders with Respect to Certain
Matters
|
|
Section
4.07.
|
Action
by Certificateholders with Respect to Certain Matters
|
|
Section
4.08.
|
Action
by Certificateholders with Respect to Bankruptcy
|
|
Section
4.09.
|
Restrictions
on Certificateholders' Power
|
|
Section
4.10.
|
Majority
Control
|
|
Section
4.11.
|
|
|
Section
4.12.
|
Optional
Purchase of Certain Mortgage Loans
|
ARTICLE
V
Application
of Trust Funds
|
Section
5.01.
|
|
|
Section
5.02.
|
|
|
Section
5.03.
|
Tax
Returns
|
|
Section
5.04.
|
Statements
to Certificateholders
|
ARTICLE
VI
Concerning
the Owner Trustee
|
Section
6.01.
|
Acceptance
of Trusts and Duties
|
|
Section
6.02.
|
Furnishing
of Documents
|
|
Section
6.03.
|
|
|
Section
6.04.
|
|
|
Section
6.05.
|
Not
Acting in Individual Capacity
|
|
Section
6.06.
|
Owner
Trustee Not Liable for Certificates or Related
Documents
|
|
Section
6.07.
|
Owner
Trustee May Own Certificates and Notes
|
|
Section
6.08.
|
Payments
from Owner Trust Estate
|
|
Section
6.09.
|
[RESERVED].
|
|
Section
6.10.
|
Liability
of Securities Administrator
|
ARTICLE
VII
|
Section
7.01.
|
Owner
Trustee's Fees and Expenses
|
|
Section
7.02.
|
Indemnification
|
ARTICLE
VIII
Termination
of Trust Agreement
|
Section
8.01.
|
Termination
of Trust Agreement
|
ARTICLE
IX
|
Section
9.01.
|
|
|
Section
9.02.
|
Replacement
of Owner Trustee
|
|
Section
9.03.
|
Successor
Owner Trustee
|
|
Section
9.04.
|
Merger
or Consolidation of Owner Trustee
|
|
Section
9.05.
|
Appointment
of Co-Trustee or Separate Trustee
|
ARTICLE
X
|
Section
10.01.
|
|
|
Section
10.02.
|
No
Legal Title to Owner Trust Estate
|
|
Section
10.03.
|
Limitations
on Rights of Others
|
|
Section
10.04.
|
|
|
Section
10.05.
|
Severability
|
|
Section
10.06.
|
|
|
Section
10.07.
|
Successors
and Assigns
|
|
Section
10.08.
|
No
Petition
|
|
Section
10.09.
|
|
|
Section
10.10.
|
Headings
|
|
Section
10.11.
|
GOVERNING
LAW
|
|
Section
10.12.
|
Integration
|
|
Section
10.13.
|
Obligations
|
ARTICLE
XI
|
Section
11.01.
|
|
|
Section
11.02.
|
Post-REMIC
Conversion
|
EXHIBITS
|
Exhibit
A -Form of Certificate
|
|
Exhibit
B - Certificate of Trust of Bear Xxxxxxx ARM Trust
2007-2
|
|
Exhibit
C - Form of Rule 144A Investment Representation
|
|
Exhibit
D - Form of Certificate of Non-Foreign Status
|
|
Exhibit
E - Form of Investment Letter
|
|
Exhibit
F - Form of Transferee Certificate
|
|
Exhibit
G - Form of ERISA Letter
|
|
Exhibit
H - Form of REMIC Class A Indenture
|
|
Exhibit
I - Form of Underlying REMIC Trust Pooling and Servicing
Agreement
|
This
Amendment to the Amended and Restated Trust Agreement, dated as of September
11,
2007 (as amended from time to time, this “Trust Agreement”), among Structured
Asset Mortgage Investments II Inc., a Delaware corporation, as depositor
(the
“Depositor”), Wilmington Trust Company, a Delaware banking corporation, as owner
trustee (the “Owner Trustee”) and Xxxxx Fargo Bank, N.A., not individually but
acting solely as Securities Administrator.
In
consideration of the mutual agreements herein contained, the Depositor and
the
Owner Trustee agree as follows:
WHEREAS,
the Depositor and the Owner Trustee have previously entered into the Trust
Agreement dated as of June 26, 2007 (the “Trust Agreement”).
In
consideration of the mutual agreements herein contained, the Depositor, the
Owner Trustee and the Securities Administrator agree as follows:
ARTICLE
I
Section
1.01. Definitions. For
all purposes of this Trust Agreement, except as otherwise expressly provided
herein or unless the context otherwise requires, capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in Appendix A
to
the Indenture, dated June 29, 2007, among Bear Xxxxxxx ARM Trust 2007-2, as
Issuing Entity, Citibank, N.A., as Indenture Trustee, and Xxxxx Fargo Bank,
N.A., as Securities Administrator, which is incorporated by reference herein.
All other capitalized terms used herein shall have the meanings specified
herein.
Section
1.02. Other
Definitional Provisions.
(a) All
terms
defined in this Trust Agreement shall have the defined meanings when used in
any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As
used
in this Trust Agreement and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in this
Trust
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Trust Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given
to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Trust Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Trust Agreement or in any such certificate or other document shall
control.
(c) The
words
“hereof,” “herein,” “hereunder” and words of similar import when used in this
Trust Agreement shall refer to this Trust Agreement as a whole and not to any
particular provision of this Trust Agreement; Article, Section and Exhibit
references contained in this Trust Agreement are references to Articles,
Sections and Exhibits in or to this Trust Agreement unless otherwise specified;
and the term “including” shall mean “including without limitation”.
(d) The
definitions contained in this Trust Agreement are applicable to the singular
as
well as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
(e) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE
II
Section
2.01. Name. The
trust created hereby (the “Trust”) shall be known as “Bear Xxxxxxx ARM Trust
2007-2”, in which name the Owner Trustee may conduct the business of the Trust,
make and execute contracts and other instruments on behalf of the Trust and
xxx
and be sued.
Section
2.02. Office. The
office of the Trust shall be in care of the Owner Trustee at the Corporate
Trust
Office or at such other address in Delaware as the Owner Trustee may designate
by written notice to the Certificateholders and the Depositor.
Section
2.03. Purposes
and Powers. The purpose of the Trust is to engage in the
following activities:
(i) to
issue
the Notes pursuant to the Indenture and the Certificates pursuant to this Trust
Agreement and to sell the Notes and the Certificates;
(ii) to
pay
the organizational, start-up and transactional expenses of the
Trust;
(iii) to
assign, grant, transfer, pledge and convey the Mortgage Loans pursuant to the
Indenture and to hold, manage and distribute to the Certificateholders pursuant
to Section 5.01 herein, any portion of the Mortgage Loans released from the
Lien
of, and remitted to the Trust pursuant to, the Indenture;
(iv) to
enter
into and perform its obligations under the Basic Documents to which it is to
be
a party;
(v) if
directed by holders of Certificates representing more than 50% of the beneficial
interests in the Trust, sell the Owner Trust Estate subsequent to the discharge
of the Indenture, all for the benefit of the Holders of the
Certificates;
(vi) to
cause
the events in connection with a REMIC Conversion to be satisfied and a REMIC
Conversion to occur, and any reasonable acts in furtherance of the
foregoing;
(vii) to
engage
in those activities, including entering into agreements, that are necessary,
suitable or convenient to accomplish the foregoing or are incidental thereto
or
connected therewith;
(viii) to
cause
the requirements for a REMIC Conversion to be satisfied and a REMIC Conversion
to occur, and to engage in any other reasonable acts in furtherance
of the foregoing, including the issuance of the Residual Certificates pursuant
to Section 11.01 hereof, in each case following the occurrence of a TMP Trigger
Event as described in Article XI of the Indenture; and
(ix) subject
to compliance with the Basic Documents, to engage in such other activities
as
may be required in connection with conservation of the Owner Trust Estate and
the making of distributions to the Certificateholders and the
Noteholders.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trust shall
not
engage in any activity other than in connection with the foregoing or other
than
as required or authorized by the terms of this Trust Agreement or the other
Basic Documents.
Section
2.04. Appointment
of Owner Trustee. The Depositor hereby appoints the Owner Trustee
as trustee of the Trust effective as of the date hereof, to have all the rights,
powers and duties set forth herein.
Section
2.05. Initial
Capital Contribution of Owner Trust Estate. The Depositor hereby
sells, assigns, transfers, conveys and sets over to the Trust, as of the date
hereof, the sum of $1. The Owner Trustee hereby acknowledges receipt in trust
from the Depositor, as of the date hereof, of the foregoing contribution, which
shall constitute the initial corpus of the Trust and shall be deposited in
the
Certificate Distribution Account. The Owner Trustee also acknowledges
on behalf of the Trust the receipt in trust of the Mortgage Loans and the rights
with respect to the representations and warranties made by the Seller under
the
Mortgage Loan Purchase Agreement and the Underlying Sellers under the related
Sale Agreements which shall constitute the Owner Trust Estate.
Section
2.06. Declaration
of Trust. The Owner Trustee hereby declares that it shall hold
the Owner Trust Estate in trust upon and subject to the conditions set forth
herein for the use and benefit of the Certificateholders, subject to the
obligations of the Trust under the Basic Documents. It is the intention of
the
parties hereto that the Trust constitute a “statutory trust” under the Statutory
Trust Statute and that this Trust Agreement constitute the governing instrument
of such statutory trust. It is the intention of the parties hereto
that, for federal and state income and state and local franchise tax purposes,
(i) the Trust not be classified as (A) an association taxable as a corporation,
(B) a publicly traded partnership or (C) a taxable mortgage pool, as long as,
in
the case of clause (C), either (1) a single person owns for federal income
tax
purposes, directly or indirectly through one or more entities disregarded as
entities separate from such person, a 100% interest in the Certificates and
each
Class of the Class X Notes and Class B Notes, or (2) two or more persons own
interests in the Certificates and Class of the Class X Notes and Class B Notes,
but only if each such person’s percentage interest in the Certificates is
identical to such person’s percentage interest in each Class of the Class X
Notes and Class B Notes, (ii) the Trust, as of the Closing Date and thereafter,
be disregarded as an entity separate from a Single Owner (and if at any other
time two or more Proportionate Owners own interests in the Certificates for
federal income tax purposes, be treated as a partnership), and (iii) the Senior
Notes be characterized as indebtedness to a Holder other than a Single
Owner. Except as otherwise provided in this Trust Agreement, the
rights of the Certificateholders will be those of equity owners of the Trust.
Effective as of the date hereof, the Owner Trustee shall have all rights, powers
and duties set forth herein and in the Statutory Trust Statute with respect
to
accomplishing the purposes of the Trust.
Section
2.07. Liability
of the Holders of the Certificates. The Holders of the
Certificates shall have the same limitation of personal liability as common
stockholders in a corporation, under the Delaware General Corporation Law;
provided, however, the Holders of the Certificates shall be liable for and
shall
promptly pay any entity level taxes imposed on the Trust.
Section
2.08. Title
to Trust Property. Legal title to the Owner Trust Estate shall be
vested at all times in the Trust as a separate legal entity except where
applicable law in any jurisdiction requires title to any part of the Owner
Trust
Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section
2.09. Situs
of Trust. The Trust will be located and administered in Delaware,
Maryland, Minnesota or New York. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the Delaware, Maryland,
Minnesota or New York. The Trust shall not have any employees in any state
other
than Delaware; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of Delaware
or taking actions outside the State of Delaware in order to comply with Section
2.03. Payments will be received by the Trust only in Delaware, Maryland,
Minnesota or New York, and payments will be made by the Trust only from
Delaware, Maryland, Minnesota or New York. The only office of the Trust
maintained by the Owner Trustee will be at the Corporate Trust Office in
Delaware.
Section
2.10. Representations
and Warranties of the Depositor. The Depositor hereby represents
and warrants to the Owner Trustee that:
(i) The
Depositor is duly organized and validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority
to
own its properties and to conduct its business as such properties are currently
owned and such business is presently conducted.
(ii) The
Depositor is duly qualified to do business as a foreign corporation in good
standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its property or the conduct
of
its business shall require such qualifications and in which the failure to
so
qualify would have a material adverse effect on the business, properties, assets
or condition (financial or other) of the Depositor.
(iii) The
Depositor has the power and authority to execute and deliver this Trust
Agreement and to carry out its terms; the Depositor has full power and authority
to convey and assign the property to be conveyed and assigned to and deposited
with the Trust as part of the Owner Trust Estate and the Depositor has duly
authorized such conveyance and assignment and deposit to the Trust by all
necessary corporate action; and the execution, delivery and performance of
this
Trust Agreement have been duly authorized by the Depositor by all necessary
corporate action.
(iv) The
consummation of the transactions contemplated by this Trust Agreement and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or by-laws of
the
Depositor, or any indenture, agreement or other instrument to which the
Depositor is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any
such indenture, agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor's knowledge,
any order, rule or regulation applicable to the Depositor of any court or of
any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
(v) The
Trust
is not required to register as an investment company under the Investment
Company Act and is not under the control of a Person required to so
register.
Section
2.11. Investment
Company. Neither the Depositor nor any holder of a Certificate
shall take any action which would cause the Trust to become an “investment
company” which would be required to register under the Investment Company
Act.
ARTICLE
III
Section
3.01. Initial
Ownership. Upon the formation of the Trust by the contribution by
the Depositor pursuant to Section 2.01 of the Sale and Servicing Agreement
and
until the conveyance of the Mortgage Loans pursuant to Section 2.01 of the
Sale
and Servicing Agreement and the issuance of the Certificates, and thereafter
except as otherwise permitted hereunder, the Depositor shall be the sole
Certificateholder.
Section
3.02. The
Certificates. The Certificates shall be issued in the form of one
or more Certificates, each representing not less than a 10% Certificate
Percentage Interest. The Certificates shall be executed on behalf of the Trust
by manual or facsimile signature of an authorized officer of the Owner Trustee
and authenticated in the manner provided in Section 3.03. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be validly issued and entitled to the benefit of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates. A Person shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such Person's acceptance of a Certificate
duly
registered in such Person's name, pursuant to Section 3.05.
A
transferee of a Certificate shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee's acceptance of a Certificate duly registered
in
such transferee's name pursuant to and upon satisfaction of the conditions
set
forth in Section 3.03
Section
3.03. Authentication
of Certificates. The Securities Administrator shall cause all
Certificates issued hereunder to be executed, 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 the authorized denomination. The Certificate shall
entitle its holder to any benefit under this Owner Trust Agreement or be valid
for any purpose unless there shall appear on the Certificates a certificate
of
authentication substantially in the form set forth in Exhibit A, executed by
the
Securities Administrator or by an authenticating agent of the Issuing Entity
by
manual signature; such authentication shall constitute conclusive evidence
that
the Certificate shall have been duly authenticated and delivered hereunder.
The
Certificates shall be dated the date of its authentication.
(a) Registration
of and Limitations on Transfer and Exchange of Certificates. The
Securities Administrator shall keep or cause to be kept, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Securities Administrator shall provide for the registration of Certificates
and
of transfers and exchanges of Certificates as herein provided. If the
Securities Administrator resigns or is removed, the Depositor shall appoint
a
successor securities administrator.
Subject
to satisfaction of the conditions set forth below with respect to the
Certificate, upon surrender for registration of transfer of any Certificate
at
the office or agency maintained pursuant to Section 3.07, the Owner Trustee
and
the Securities Administrator shall execute, authenticate and deliver in the
name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Securities Administrator. At the option of a Holder,
Certificates may be exchanged for other Certificates of authorized denominations
of a like aggregate amount upon surrender of the Certificates to be exchanged
at
the office or agency maintained pursuant to Section 3.07
Every
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory
to
the Securities Administrator duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Securities Administrator in accordance with its customary
practice.
No
service charge shall be made for any registration of transfer or exchange of
Certificates, but the Owner Trustee or the Securities Administrator may require
payment of a sum sufficient to cover any tax or governmental charge that may
be
imposed in connection with any transfer or exchange of
Certificates.
No
Person
shall become a Certificateholder until it shall establish its non-foreign status
by submitting to the Securities Administrator an IRS Form W-9 and the
Certificate of Non-Foreign Status set forth in Exhibit D hereto.
No
transfer, sale, pledge or other disposition of a Certificate shall be made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event
of
any such transfer, the Securities Administrator or the Depositor shall prior
to
such transfer require the transferee to execute (A) either (i) an investment
letter in substantially the form attached hereto as Exhibit C (or in such form
and substance reasonably satisfactory to the Securities Administrator and the
Depositor) which investment letter shall not be an expense of the Trust, the
Owner Trustee, the Master Servicer, the Securities Administrator, the Seller,
any Servicer or the Depositor and which investment letter states that, among
other things, such transferee (a) is a “qualified institutional buyer” as
defined under Rule 144A, acting for its own account or the accounts of other
“qualified institutional buyers” as defined under Rule 144A, and (b) is aware
that the proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act of 1933, as amended, provided by Rule
144A
or (ii) (a) a written Opinion of Counsel acceptable to and in form and substance
satisfactory to the Securities Administrator and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from said Act and laws or is being made
pursuant to said Act and laws, which Opinion of Counsel shall not be an expense
of the Trust, the Owner Trustee, the Master Servicer, the Securities
Administrator, the Seller, any Servicer or the Depositor and (b) the transferee
executes a representation letter, substantially in the form of Exhibit E to
the
Agreement, and transferor executes a representation letter, substantially in
the
form of Exhibit F hereto, each acceptable to and in form and substance
satisfactory to the Securities Administrator and the Depositor certifying the
facts surrounding such transfer, which representation letters shall not be
an
expense of the Trust, the Owner Trustee, the Master Servicer, the Securities
Administrator, the Seller, any Servicer or the Depositor and (B) the Certificate
of Non-Foreign Status (in substantially the form attached hereto as Exhibit
D)
acceptable to and in form and substance reasonably satisfactory to the
Securities Administrator and the Depositor, which certificate shall not be
an
expense of the Trust, the Owner Trustee, the Master Servicer, the Securities
Administrator, the Seller, any Servicer or the Depositor. No certification
will
be required in connection with the initial transfer of any such Certificate
by
the Issuing Entity to the Depositor and by the Depositor to one of its
Affiliates. The Holder of a Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trust, the Owner
Trustee, the Master Servicer, the Securities Administrator, the Seller, any
Servicer and the Depositor against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of Certificates or any interest therein shall be made to any Person
unless the Depositor, the Owner Trustee and the Securities Administrator are
provided with an Opinion of Counsel which establishes to the satisfaction of
the
Depositor, the Owner Trustee, the Securities Administrator, the Seller, any
Servicer and the Master Servicer that the purchase of Certificates is
permissible under applicable law, will not constitute or result in any
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Depositor, the Owner Trustee, the Securities Administrator, the
Seller, any Servicer or the Master Servicer to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in this Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Owner Trustee, the Securities
Administrator, the Seller, any Servicer or the Master Servicer. In lieu of
such
Opinion of Counsel, a Person acquiring such Certificates may provide a
certification in the form of Exhibit G to this Agreement, which the Depositor,
the Owner Trustee, the Securities Administrator, the Seller, any Servicer and
the Master Servicer may rely upon without further inquiry or investigation.
Neither an Opinion of Counsel nor a certification will be required in connection
with the initial transfer of any such Certificate from the Issuing Entity to
the
Depositor, or by the Depositor to an Affiliate of the Depositor (in which case,
the Depositor and such Affiliate, as applicable, shall be deemed to have
represented that such party is not a Plan or a Person investing Plan Assets
of
any Plan).
No
transfer, sale, pledge or
other disposition of a Certificate (other than a Residual Certificate)
shall be made, and the Securities Administrator shall refuse to register
any
such transfer, sale, pledge or other disposition, unless and until (1) the
proposed transferee shall have delivered to the Owner Trustee, the Securities
Administrator and the Indenture Trustee (I) in the case of a transfer, sale,
pledge or disposition, excluding a pledge to secure indebtedness or
a transfer, sale, pledge or disposition pursuant to any
repurchase agreement (but not excluding a disposition following a default
under
such indebtedness or repurchase transaction), (i) a certificate substantially
in
the form of Exhibit F hereto certifying that,
following such transfer, sale, pledge or disposition, the
proposed transferee will be either (A) a Single Owner or (B) a Proportionate
Owner and (ii) an opinion of
nationally recognized tax counsel (which opinion shall not be an expense
of the
Trust), addressed to the Securities Administrator, the Owner Trustee and
the
Indenture Trustee, to the effect that such transfer, sale, pledge or
disposition will not cause the Trust to be (x) treated as an association
taxable
as a corporation for federal income tax purposes or (y) taxable as a “publicly
traded partnership” as defined in Treasury Regulation Section 1.7704-1 for
federal income tax purposes, (II) an opinion of nationally recognized tax
counsel addressed to the Securities Administrator, the Owner Trustee and
the
Indenture Trustee (which opinion shall not be an expense of the Trust) to
the
effect that such transfer, sale,
pledge or disposition will not cause the Trust to be (x) treated
as an association taxable as a
corporation for federal income tax purposes, (y) treated
as a taxable
mortgage pool for federal income tax purposes or (z)
taxable
as a “publicly traded
partnership” as defined in Treasury Regulation Section
1.7704-1 for federal income tax
purposes, or (III) an opinion of nationally recognized tax counsel
addressed to the Securities Administrator, the Owner Trustee and the Indenture
Trustee (which opinion shall not be an expense of the Trust) to the effect
that
such transfer, sale, pledge or disposition will constitute a TMP Trigger
Event, and (2) in the case of any transfer, sale, pledge or other
disposition with respect to which the proposed transferee delivers the opinion
described in the immediately preceding clause (III), the REMIC Conversion associated
with
such TMP Trigger Event (and all conditions precedent thereto, including the
contribution to the Trust
or
provisions for payment
to various parties of certain additional funds by such proposed transferor
or
proposed transferee pursuant to Article XI hereof),
as described in Article XI hereof and
Article XI of the Indenture, has
been
consummated. The provisions of this
paragraph shall not apply to the initial transfer of the Certificates to
the Depositor (or an affiliate
thereof).
Following
the REMIC Conversion, each Holder of a Certificate shall consent and agree
to
any additional restrictions on the ability to transfer, pledge, sell or
otherwise dispose of such Certificate that may be imposed on such Holder by
amendment of this Trust Agreement by the parties hereto to ensure that any
such
transfer will not result in the imposition of tax on any REMIC created in
connection with such REMIC Conversion or adversely affect such REMIC, including,
but not limited to, a restriction on transfers of such Certificate to
“disqualified organizations” within the meaning of Section 860E of the Code or
to foreign Persons.
Section
3.04. Mutilated,
Destroyed, Lost or Stolen Certificates. If (a) any mutilated
Certificate shall be surrendered to the Securities Administrator, or if the
Securities Administrator shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Securities Administrator and the Owner Trustee such security or indemnity
as may be required by them to save each of them harmless, then in the absence
of
notice to the Securities Administrator or the Owner Trustee that such
Certificate has been acquired by a protected purchaser, the Owner Trustee shall
execute on behalf of the Trust and the Owner Trustee or the Securities
Administrator, shall authenticate and deliver, in exchange for or in lieu of
any
such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like
tenor and denomination. In connection with the issuance of any new Certificate
under this Section 3.04, the Owner Trustee or the Securities Administrator
may
require the payment of a sum sufficient to cover any expenses of the Owner
Trustee or the Securities Administrator (including fees and expenses of counsel)
and any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section 3.04 shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
Section
3.05. Persons
Deemed Certificateholders. Prior to due presentation of a
Certificate for registration of transfer, the Owner Trustee or any Securities
Administrator may treat the Person in whose name any Certificate is registered
in the Certificate Register as the owner of such Certificate for the purpose
of
receiving distributions pursuant to Section 5.02 and for all other purposes
whatsoever, and none of the Trust, the Owner Trustee or the Securities
Administrator shall be bound by any notice to the contrary.
Section
3.06. Access
to List of Certificateholders' Names and Addresses. The
Securities Administrator shall furnish or cause to be furnished to the Depositor
or the Owner Trustee, within 15 days after receipt by the Securities
Administrator 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 a Certificate, shall be deemed to have agreed not to hold any of
the
Trust, the Depositor or the Securities Administrator accountable by reason
of
the disclosure of its name and address, regardless of the source from which
such
information was derived.
Section
3.07. Maintenance
of Office or Agency. The Trust shall maintain an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trust in respect of the Certificates and the Basic Documents may be
delivered. The Trust initially designates the Corporate Trust Office
of the Securities Administrator as its office for purposes of delivery of
notices. The Securities Administrator shall give prompt written notice to the
Depositor, the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
Section
3.08. Securities
Administrator. (a) The Securities
Administrator shall make distributions to Certificateholders from the
Certificate Distribution Account on behalf of the Trust in accordance with
the
provisions of the Certificates and Section 5.01 hereof from payments remitted
to
the Securities Administrator pursuant to Section 3.03 of the Indenture. The
Trust hereby appoints the Securities Administrator and the Securities
Administrator hereby accepts such appointment and further agrees that it will
be
bound by the provisions of this Trust Agreement relating to the Securities
Administrator and shall:
(i) hold
all
sums held by it for the payment of amounts due with respect to the Certificates
in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein
provided;
(ii) give
the
Owner Trustee notice of any default by the Trust of which a Responsible Officer
of the Securities Administrator has actual knowledge in the making of any
payment required to be made with respect to the Certificates;
(iii) at
any
time during the continuance of any such default, upon the written request of
the
Owner Trustee forthwith pay to the Owner Trustee on behalf of the Trust all
sums
so held in Trust by such Securities Administrator ;
(iv) not
resign from its position as Securities Administrator except that it shall
immediately resign as Securities Administrator and forthwith pay to the Owner
Trustee on behalf of the Trust all sums held by it in trust for the payment
of
Certificates if at any time it ceases to meet the standards under this Section
3.08 required to be met by the Securities Administrator at the time of its
appointment;
(v) comply
with all requirements of the Code with respect to the withholding from any
payments made by it on any Certificates of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting requirements in
connection therewith; and
(vi) not
institute bankruptcy proceedings against the Issuing Entity in connection with
this Trust Agreement.
(b) The
Trust
may revoke such power and remove the Securities Administrator if it determines
in its sole discretion that the Securities Administrator shall have failed
to
perform its obligations under this Trust Agreement in any material respect.
In
the event that Xxxxx Fargo Bank, N.A. shall no longer be the Securities
Administrator under this Trust Agreement and under the Indenture, the Owner
Trustee shall appoint a successor to act as Securities Administrator (which
shall be a bank or trust company) and which shall also be the successor
securities administrator under the Indenture. The Owner Trustee shall cause
such
successor securities administrator or any additional Securities Administrator
appointed by the Owner Trustee to execute and deliver to the Owner Trustee
an
instrument to the effect set forth in Section 3.08(a) as it relates to the
Securities Administrator . The Securities Administrator shall return all
unclaimed funds to the Trust and upon removal of a Securities Administrator
such
Securities Administrator shall also return all funds in its possession to the
Trust. The provisions of Sections 6.01, 6.04, 6.05, 6.06, 6.07, 6.08 and 7.01
shall apply to the Securities Administrator to the same extent applicable to
the
Owner Trustee except where the context requires otherwise. Any reference in
this
Agreement to the Securities Administrator shall include any co-paying agent
unless the context requires otherwise.
(c) The
Securities Administrator shall establish and maintain with itself a trust
account (the “Certificate Distribution Account”) in which the Securities
Administrator shall deposit each remittance received by it with respect to
payments made pursuant to the Indenture. The Securities Administrator shall
make
all distributions to Certificates, from moneys on deposit in the Certificate
Distribution Account, in accordance with Section 5.01 hereof. The
funds in the Certificate Distribution Account shall be held
uninvested.
ARTICLE
IV
Section
4.01. General
Authority. The Owner Trustee is authorized and directed to
execute and deliver the Basic Documents to which the Trust is to be a party
and
each certificate or other document attached as an exhibit to or contemplated
by
the Basic Documents to which the Trust is to be a party and any amendment or
other agreement or instrument described herein, as evidenced conclusively by
the
Owner Trustee's execution thereof. In addition to the foregoing, the Owner
Trustee is authorized, but shall not be obligated, to take all actions required
of the Trust pursuant to the Basic Documents.
Section
4.02. General
Duties. It shall be the duty of the Owner Trustee to discharge
(or cause to be discharged) all of its responsibilities pursuant to the terms
of
this Trust Agreement and the other Basic Documents to which the Trust is a
party
and to administer the Trust in the interest of the Certificateholders, in
accordance with the provisions of this Trust Agreement and subject to the other
Basic Documents.
Section
4.03. Action
upon Instruction. (a) Subject to Article
IV and in accordance with the terms of the other Basic Documents, the
Certificateholders may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Article IV.
(b) Notwithstanding
the foregoing, the Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely
to
result in liability on the part of the Owner Trustee or is contrary to the
terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever
the Owner Trustee is required to decide between alternative courses of action
permitted or required by the terms of this Trust Agreement or under any Basic
Document, or in the event that the Owner Trustee is unsure as to the application
of any provision of this Trust Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this Trust
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take
with respect to a particular set of facts, the Owner Trustee shall promptly
give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificateholders, the Owner Trustee shall
not be liable on account of such action to any Person. If the Owner Trustee
shall not have received appropriate instruction within 10 days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action not inconsistent with this
Trust Agreement or the other Basic Documents, as it shall deem to be in the
best
interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for such action or inaction.
Section
4.04. No
Duties Except as Specified under Specified Documents or in
Instructions. The Owner Trustee shall not have any duty or
obligation to manage, make any payment with respect to, register, record, sell,
dispose of, or otherwise deal with the Owner Trust Estate, or to otherwise
take
or refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Owner Trustee is a party, except as expressly
provided (i) in accordance with the powers granted to and the authority
conferred upon the Owner Trustee pursuant to this Trust Agreement, (ii) in
accordance with the other Basic Documents and (iii) in accordance with any
document or instruction delivered to the Owner Trustee pursuant to Section
4.03;
and no implied duties or obligations shall be read into this Trust Agreement
or
any Basic Document against the Owner Trustee. The Owner Trustee shall have
no
responsibility for filing any financing or continuation statement in any public
office at anytime or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to prepare or file any
Securities and Exchange Commission filing for the Trust or to record this Trust
Agreement or any Basic Document. The Owner Trustee nevertheless agrees that
it
will, at its own cost and expense, promptly take all action as may be necessary
to discharge any liens on any part of the Owner Trust Estate that result from
actions by, or claims against, the Owner Trustee that are not related to the
ownership or the administration of the Owner Trust Estate.
Section
4.05. Restrictions. (a) The
Owner Trustee or the Depositor (or an Affiliate thereof) shall not take any
action (x) that is inconsistent with the purposes of the Trust set forth in
Section 2.03, or (y) that, to the actual knowledge of the Owner Trustee based
on
an Opinion of Counsel rendered by a law firm generally recognized to be
qualified to opine concerning the tax aspects of asset securitization, (1)
prior
to the REMIC Conversion, would result in the Trust becoming a taxable mortgage
pool for federal income tax purposes or failing to maintain its status as a
disregarded entity (or a partnership) for federal income tax purposes, and
(2)
may adversely affect any REMIC created in connection with a REMIC Conversion.
The Certificateholders shall not direct the Owner Trustee to take action that
would violate the provisions of this Section 4.05.
(b) The
Owner
Trustee shall not convey or transfer any of the Trust's properties or assets,
including those included in the Owner Trust Estate, to any person unless (i)(a)
it shall have received an Opinion of Counsel rendered by a law firm generally
recognized to be qualified to opine concerning the tax aspects of asset
securitization to the effect that such transaction will not have any material
adverse tax consequence to the Trust or any Certificateholder and (b) such
conveyance or transfer shall not violate the provisions of Section 3.13b) of
the
Indenture or (ii) such conveyance or transfer is made in connection with a
REMIC
Conversion as set forth in this Trust Agreement and Article XI of the Indenture.
Notwithstanding the foregoing, the Owner Trustee shall permit the Issuing Entity
to undertake any of the activities contemplated herein in connection with a
REMIC Conversion, as described in Section 11.01 herein.
Section
4.06. Prior
Notice to Certificateholders with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee
shall not take action unless at least 30 days before the taking of such action,
the Owner Trustee shall have notified the Certificateholders in writing of
the
proposed action and the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative
direction:
(a) the
initiation of any claim or lawsuit by the Trust (except claims or lawsuits
brought in connection with the collection of cash distributions due and owing
under the Mortgage Loans) and the compromise of any action, claim or lawsuit
brought by or against the Trust (except with respect to the aforementioned
claims or lawsuits for collection of cash distributions due and owing under
the
Mortgage Loans);
(b) the
election by the Trust to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Statutory Trust
Statute);
(c) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is required;
(d) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is not required and such amendment materially
adversely affects the interest of the Certificateholders; and
(e) the
appointment pursuant to the Indenture of a successor securities administrator
or
indenture trustee or pursuant to this Trust Agreement of a successor securities
administrator or the consent to the assignment by the Securities Administrator
or Indenture Trustee of its obligations under the Indenture or this Trust
Agreement, as applicable.
Section
4.07. Action
by Certificateholders with Respect to Certain Matters. The Owner
Trustee shall not have the power, except upon the direction of the
Certificateholders to, except as expressly provided in the Basic Documents,
sell
the Mortgage Loans after the termination of the Indenture. The Owner Trustee
shall take the actions referred to in the preceding sentence only upon written
instructions signed by the Certificateholders.
Section
4.08. Action
by Certificateholders with Respect to Bankruptcy. The Owner
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the consent of the Owner Trustee and the delivery to
the
Owner Trustee by each such Certificateholder of a certificate certifying that
such Certificateholder reasonably believes that the Trust is insolvent. This
paragraph shall survive for one year following termination of this Trust
Agreement.
Section
4.09. Restrictions
on Certificateholders' Power. The Certificateholders shall not
direct the Owner Trustee to take or to refrain from taking any action if such
action or inaction would be contrary to any obligation of the Trust or the
Owner
Trustee under this Trust Agreement or any of the other Basic Documents or would
be contrary to Section 2.03, nor shall the Owner Trustee be obligated to follow
any such direction, if given.
Section
4.10. Majority
Control. Except as expressly provided herein, any action that may
be taken by the Certificateholders under this Trust Agreement may be taken
by
the Holders of Certificates evidencing not less than a majority Percentage
Interest of the Certificates. Except as expressly provided herein, any written
notice of the Certificateholders delivered pursuant to this Trust Agreement
shall be effective if signed by Holders of Certificates evidencing not less
than
a majority Percentage Interest of the Certificates at the time of the delivery
of such notice.
Section
4.11. Optional
Redemption. Upon receipt of written instructions provided to the
Securities Administrator by the Majority Certificateholder, the Issuing Entity
shall redeem the Notes in accordance with Section 8.07 of the Indenture and
the
Securities Administrator shall provide all necessary notices on behalf of the
Issuing Entity to effect the foregoing, provided that such Holder shall deposit
with the Securities Administrator an amount equal to the aggregate redemption
price specified under Section 8.07 of the Indenture. The Issuing Entity shall
not have the power to exercise the right to redeem the Notes pursuant to Section
8.07 of the Indenture, except as provided above. Upon redemption of
the Notes by the Issuing Entity as a result of the purchase of such Notes by
the
Certificateholder pursuant to Section 8.07 of the Indenture, as applicable,
the
Owner Trustee shall cause the release of the related Mortgage Loans from the
Trust Estate to the Certificateholder.
Section
4.12. Optional
Purchase of Certain Mortgage Loans. The Certificateholder will
have the option to purchase, at any one time, up to 1.00% (and in any case,
at
least five (5) Mortgage Loans) of the Mortgage Loans, by aggregate Scheduled
Principal Balance of the Mortgage Loans as of such date, at a purchase price
equal to the Repurchase Price. The Mortgage Loans that may be
purchased by the Certificateholder pursuant to this paragraph will be selected
by the Certificateholder in its sole discretion. If at any time the
Certificateholder exercises such option, it shall immediately notify or cause
to
be notified the Indenture Trustee and the related Custodian by a certification
in the form of Exhibit B (which certification shall include a statement to
the
effect that all amounts required to be deposited in the Protected Account
pursuant to Section 3.05 have been or will be so deposited) of an Officer of
the
Certificateholder and shall request delivery to it of the Mortgage File. Upon
receipt of such certification and request, the related Custodian on behalf
of
the Indenture Trustee shall promptly release the related Mortgage Files to
the
Certificateholder. Notwithstanding the foregoing, following a REMIC
Conversion, the aforementioned optional repurchase right will
terminate.
ARTICLE
V
Section
5.01. Distributions. (a)
On each Payment Date, the Securities Administrator shall in accordance
with the directions given pursuant to the Indenture or REMIC Class A Indenture,
as applicable, distribute to the Certificateholders, on a pro rata basis, based
on the Certificate Percentage Interests thereof, or in such other manner as
directed in the REMIC Class A Indenture or this Trust Agreement, in the case
of
the Residual Certificates, all funds on deposit in the Certificate Distribution
Account and available therefor (as provided in Section 3.03 of the Indenture
or
REMIC Class A Indenture, as applicable) for such Payment Date as reduced by
any
amount owing to the Owner Trustee hereunder and any Expenses of the Trust
remaining unpaid.
(b) In
the
event that any withholding tax is imposed on the distributions (or allocations
of income) to a Certificateholder, such tax shall reduce the amount otherwise
distributable to the Certificateholder in accordance with this Section 5.01.
The
Securities Administrator 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
Securities Administrator and remitted to the appropriate taxing authority.
If
there is a possibility that withholding tax is payable with respect to a
distribution, the Securities Administrator may in its sole discretion withhold
such amounts in accordance with this paragraph (b).
(c) Distributions
to Certificateholders shall be subordinated to the creditors of the Trust,
including the Noteholders or holders of REMIC Class A Notes, as
applicable.
Section
5.02. Method
of Payment. Subject to Section 8.01(c), distributions required to
be made to Certificateholders on any Payment Date as provided in Section 5.01
shall be made to each Certificateholder of record on the preceding Record Date
by wire transfer, in immediately available funds, to the account of such Holder
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Securities Administrator
appropriate written instructions at least five Business Days prior to such
Payment Date or, if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register.
Section
5.03. Tax
Returns. The Securities Administrator shall (a) maintain (or
cause to be maintained) the books of the Trust on a calendar year basis using
the accrual method of accounting, (b) deliver to the Securities Administrator
to
be forwarded 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 5.01 of this Trust Agreement with respect to income or
distributions to Certificateholders and prepare or cause to be prepared the
appropriate forms relating thereto; provided, however, that (except as provided
in the following paragraph) the Securities Administrator shall not be required
to prepare and file corporation tax returns or partnership tax returns or any
other tax returns on behalf of the Issuing Entity or do any additional tax
work
caused by any change in the tax treatment of the Notes or Trust from the
treatment contemplated hereunder on the Closing Date unless the Securities
Administrator receives (i) an Opinion of Counsel reasonably satisfactory to
it
(which shall not be at the Securities Administrator's expense, but shall be
at
the expense of the Depositor or other party furnishing such opinion) as to
the
necessity of such filings or work, and (ii) reasonable additional compensation
for the preparation and filing of such additional returns or any such additional
tax work. The Issuing Entity hereby grants permission to the Securities
Administrator to sign, to the extent permitted by law, all tax and information
returns prepared or caused to be prepared by the Securities Administrator
pursuant to this Section 5.03 at the request of the Securities Administrator,
and in doing so, the Owner Trustee and the Certificateholders shall rely
entirely upon, and shall have no liability for information or calculations
provided by, the Securities Administrator.
Subsequent
to a REMIC Conversion, the Securities Administrator shall prepare and file,
or
cause to be prepared and filed, in a timely manner, with the Internal Revenue
Service and applicable state or local tax authorities, a U.S. Real Estate
Mortgage Investment Conduit Income Tax Return (Form 1066 or any successor form
adopted by the Internal Revenue Service), and other income tax or information
returns for each taxable year with respect to any REMIC created in connection
with such REMIC Conversion or with respect to the Trust, in each case,
containing such information and in the manner as may be required by the Code
or
state or local tax laws, regulations or rules, and shall furnish, or cause
to be
furnished, to the Holders of the Certificates or REMIC Securities the schedules,
statements or information required by such Holders for tax reporting purposes
at
such times and in such manner as may be required by the Code or state or local
tax laws, regulations or rules. In addition, subsequent to a REMIC
Conversion, the Securities Administrator shall perform the other duties relating
to the tax matters of the Trust and each REMIC created in connection with such
REMIC Conversion as may be specified in the REMIC Class A Indenture, and the
Owner Trustee shall cooperate and furnish upon the request of the Securities
Administrator any records, information and materials in its possession
relating to the Trust and each such REMIC as may be necessary for the Securities
Administrator to prepare the aforementioned returns, schedules and statements
required to be furnished to the taxing authorities or Holders of the
Certificates or REMIC Securities with respect to the Trust and each such REMIC
and to perform such other tax duties.
Section
5.04. Statements
to Certificateholders. On each Payment Date, the Securities
Administrator shall make available to each Certificateholder the statement
or
statements provided to the Owner Trustee by the Securities Administrator
pursuant to Section 7.04 of the Indenture with respect to such Payment
Date.
ARTICLE
VI
Section
6.01. Acceptance
of Trusts and Duties. The Owner Trustee accepts the trusts hereby
created and agrees to perform its duties hereunder with respect to such trusts
but only upon the terms of this Trust Agreement. The Owner Trustee and the
Securities Administrator also agree to disburse all moneys actually received
by
each of them constituting part of the Owner Trust Estate upon the terms of
this
Trust Agreement and the other Basic Documents. The Owner Trustee shall not
be
answerable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct, gross negligence
or
bad faith or grossly negligent failure to act or (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 6.03 expressly
made by the Owner Trustee. In particular, but not by way of limitation (and
subject to the exceptions set forth in the preceding sentence):
(a) The
Owner
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in accordance with the instructions of the Certificateholders or
any
other Person permitted under this Trust Agreement;
(b) No
provision of this Trust Agreement or any Basic Document shall require the Owner
Trustee to expend or risk funds or otherwise incur any financial liability
in
the performance of any of its rights, duties or powers hereunder or under any
Basic Document if the Owner Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(c) Under
no
circumstances shall the Owner Trustee be liable for indebtedness evidenced
by or
arising under any of the Basic Documents, including the principal of and
interest on the Notes;
(d) The
Owner
Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Trust Agreement or for the due execution hereof by the
Depositor or any other Person or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate, or for or
in
respect of the validity or sufficiency of the Basic Documents, the Notes, the
Certificates and the Owner Trustee shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to any Certificateholder,
other than as expressly provided for herein or expressly agreed to in the other
Basic Documents;
(e) The
execution, delivery, authentication and performance by it of this Trust
Agreement will not require the authorization, consent or approval of, the giving
of notice to, the filing or registration with, or the taking of any other action
with respect to, any governmental authority or agency;
(f) The
Owner
Trustee shall not be liable for the default or misconduct of the Depositor,
Indenture Trustee, Securities Administrator or the Master Servicer under any
of
the Basic Documents or otherwise and the Owner Trustee shall have no obligation
or liability to perform the obligations of the Trust or the Owner Trustee under
this Trust Agreement or the other Basic Documents that are required to be
performed by the Depositor, Indenture Trustee, Securities Administrator or
the
Master Servicer under any of the Basic Documents or otherwise.
(g) The
Owner
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it or duties imposed by this Trust Agreement, or to institute, conduct
or defend any litigation under this Trust Agreement or otherwise or in relation
to this Trust Agreement or any Basic Document, at the request, order or
direction of any of the Certificateholders, unless such Certificateholders
have
offered to the Owner Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Trust Agreement or in any Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for other
than its gross negligence or willful misconduct in the performance of any such
act.
(h) In
no
event shall the Owner Trustee be liable for any damages in the nature of
special, indirect or consequential damages, however styled, including, without
limitation, lost profits, or for any losses due to forces beyond the control
of
the Owner Trustee, including, without limitation, strikes, work stoppages,
acts
of war or terrorism, insurrection, revolution, nuclear or natural catastrophes
or acts of God and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services provided to the
Owner Trustee by third parties.
Section
6.02. Furnishing
of Documents. The Owner Trustee shall furnish to the
Securityholders promptly upon receipt of a written reasonable request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Trust under
the
Basic Documents.
Section
6.03. Representations
and Warranties. The Owner Trustee hereby represents and warrants
to the Depositor, for the benefit of the Certificateholders, that:
(a) It
is a
Delaware banking corporation duly organized and validly existing in good
standing under the federal laws of the United States. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Trust Agreement;
(b) It
has
taken all corporate action necessary to authorize the execution and delivery
by
it of this Trust Agreement, and this Trust Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver
this Trust Agreement on its behalf;
(c) Neither
the execution nor the delivery by it of this Trust Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance by
it
with any of the terms or provisions hereof will contravene any federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound;
(d) This
Trust Agreement assuming due authorization, execution and delivery by the Owner
Trustee and the Depositor, constitutes a valid, legal and binding obligation
of
the Owner Trustee, enforceable against it in accordance with the terms hereof
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally and to
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(e) The
Owner
Trustee is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any Federal, state, municipal or governmental
agency, which default might have consequences that would materially and
adversely affect the condition (financial or other) or operations of the Owner
Trustee or its properties or might have consequences that would materially
adversely affect its performance hereunder; and
(f) No
litigation is pending or, to the best of the Owner Trustee's knowledge,
threatened against the Owner Trustee which would prohibit its entering into
this
Trust Agreement or performing its obligations under this Trust
Agreement.
Section
6.04. Reliance;
Advice of Counsel. (a) The Owner Trustee shall incur
no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, note, or
other document or paper believed by it to be genuine and believed by it to
be
signed by the proper party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or other authorized officers of the relevant party, as to such fact or matter
and such certificate shall constitute full protection to the Owner Trustee
for
any action taken or omitted to be taken by it in good faith in reliance
thereon.
(b) In
the
exercise or administration of the Trust hereunder and in the performance of
its
duties and obligations under this Trust Agreement or the other Basic Documents,
the Owner Trustee (i) may act directly or through its agents, attorneys,
custodians or nominees (including persons acting under a power of attorney)
pursuant to agreements entered into with any of them, and the Owner Trustee
shall not be liable for the conduct or misconduct of such agents, attorneys,
custodians or nominees (including persons acting under a power of attorney)
if
such persons have been selected by the Owner Trustee with reasonable care,
and
(ii) may consult with counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it. The Owner Trustee shall not
be
liable for anything done, suffered or omitted in good faith by it in accordance
with the opinion or advice of any such counsel, accountants or other such
Persons and not contrary to this Trust Agreement or any Basic
Document.
Section
6.05. Not
Acting in Individual Capacity. Except as provided in this Article
VI, in accepting the trusts hereby created Wilmington Trust Company acts solely
as Owner Trustee hereunder and not in its individual capacity, and all Persons
having any claim against the Owner Trustee by reason of the transactions
contemplated by this Trust Agreement or any Basic Document shall look only
to
the Owner Trust Estate for payment or satisfaction thereof.
Section
6.06. Owner
Trustee Not Liable for Certificates or Related Documents. The
recitals contained herein and in the Certificates (other than the signatures
of
the Owner Trustee on the Certificates) shall be taken as the statements of
the
Depositor, and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or
sufficiency of this Trust Agreement, of any Basic Document or of the
Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents, or of MERS or the
MERS®
System. The Owner Trustee shall at no time have any responsibility or liability
with respect to the sufficiency of the Owner Trust Estate or its ability to
generate the payments to be distributed to Certificateholders under this Trust
Agreement or the Noteholders under the Indenture, including compliance by the
Depositor or the Seller with any warranty or representation made under any
Basic
Document or in any related document or the accuracy of any such warranty or
representation, or any action of the Indenture Trustee or the Securities
Administrator taken in the name of the Owner Trustee.
Section
6.07. Owner
Trustee May Own Certificates and Notes. The Owner Trustee in its
individual or any other capacity may, subject to Section 3.05, become the owner
or pledgee of Certificates or Notes and may deal with the Depositor, the Seller,
the Securities Administrator and the Indenture Trustee in transactions with
the
same rights as it would have if it were not Owner Trustee.
Section
6.08. Payments
from Owner Trust Estate. All payments to be made by the Owner
Trustee under this Trust Agreement or any of the other Basic Documents to which
the Owner Trustee is a party shall be made only from the income and proceeds
of
the Owner Trust Estate or from other amounts required to be provided by the
Certificateholders and only to the extent that the Owner Trust shall have
received income or proceeds from the Owner Trust Estate or the
Certificateholders to make such payments in accordance with the terms hereof.
Wilmington Trust Company, in its individual capacity, shall not be liable for
any amounts payable under this Trust Agreement or any of the other Basic
Documents to which the Owner Trustee is a party.
Section
6.09. [RESERVED].
Section
6.10. Liability
of Securities Administrator. All provisions affording protection
or rights to or limiting the liability of the Owner Trustee, including the
provisions of this Agreement permitting the Owner Trustee to resign, merge
or
consolidate, shall inure as well to the Securities Administrator.
ARTICLE
VII
Section
7.01. Owner
Trustee's Fees and Expenses. The Owner Trustee shall receive from
the Master Servicer as compensation for its services hereunder such fees as
have
been separately agreed upon by the Owner Trustee and the Seller before the
date
hereof.. In the event that the Master Servicer fails to pay such fees
on any Payment Date, the Owner Trustee shall be entitled to such fee from funds
on deposit in the Payment Account prior to any distributions to the Noteholders
on such Payment Date. Additionally, the Owner Trustee shall be
reimbursed from amounts on deposit in the Payment Account, in accordance with
Section 4.02 of the Sale and Servicing Agreement for its reasonable expenses
hereunder and under the other Basic Documents, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may reasonably employ in connection
with the exercise and performance of its rights and its duties hereunder and
under the other Basic Documents.
Section
7.02. Indemnification. The
Depositor shall indemnify, defend and hold harmless the Owner Trustee and its
respective successors, assigns, agents and servants (collectively, the
“Indemnified Parties”) from and against, any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever (collectively, “Expenses”) which may at any
time be imposed on, incurred by, or asserted against any Indemnified Party
in
any way relating to or arising out of this Trust Agreement, the other Basic
Documents, the Owner Trust Estate, the administration of the Owner Trust Estate
or the action or inaction of the Owner Trustee, hereunder, provided,
that:
(i) the
Depositor shall not be liable for or required to indemnify an Indemnified Party,
as applicable, from and against Expenses arising or resulting from such
Indemnified Party's own willful misconduct, gross negligence or bad faith or,
as
to the Owner Trustee, as a result of any inaccuracy of a representation or
warranty of the Owner Trustee contained in Section 6.03 expressly made by the
Owner Trustee;
(ii) with
respect to any such claim, the Indemnified Party shall have given the Depositor
written notice thereof promptly after the Indemnified Party shall have actual
knowledge thereof; provided, however, that failure to give such notice shall
not
affect the indemnification of the Indemnified Party except to the extent the
Depositor is materially prejudiced by such failure;
(iii) while
maintaining control over its own defense, the Depositor shall consult with
the
Indemnified Party in preparing such defense; and
(iv) notwithstanding
anything in this Agreement to the contrary, the Depositor shall not be liable
for settlement of any claim by an Indemnified Party entered into without the
prior consent of the Depositor which consent shall not be unreasonably
withheld.
The
indemnities contained in this Section shall survive the resignation or removal
of the Owner Trustee or the termination of this Trust Agreement. In
addition, upon written notice to the Owner Trustee and with the consent of
the
Owner Trustee which consent shall not be unreasonably withheld, the Depositor
has the right to assume the defense of any claim, action or proceeding against
the Owner Trustee.
The
Seller agrees to indemnify the Indemnified Parties for Expenses for which the
Depositor is required to indemnify the Indemnified Parties pursuant to this
Section 7.02, other than (x) any Expenses required to be covered by the
Master Servicer pursuant to Section 5.03 of the Sale and Servicing Agreement
or
(y) and any Expenses actually paid by the Depositor in accordance with this
Section 7.02. Alesco Financial Inc. shall guarantee the indemnity required
by
the Seller pursuant to this paragraph.
ARTICLE
VIII
Section
8.01. Termination
of Trust Agreement. (a) This Trust Agreement (other
than Article VII and Section 10.08) shall terminate and the Trust shall
dissolve, wind up and terminate in accordance with Section 3808 of the Statutory
Trust Statute and be of no further force or effect upon the earlier of (i)
the
final distribution of all moneys or other property or proceeds of the Owner
Trust Estate in accordance with the terms of the Indenture, this Trust Agreement
and the REMIC Class A Indenture and (ii) the distribution of all of the assets
of the Owner Trust Estate, in accordance with written instructions provided
to
the Securities Administrator by the Majority Certificateholder, following the
optional redemption of the Notes effected by the Majority Certificateholder
pursuant to Section 8.07 of the Indenture; provided in each case that all
amounts owing to the Noteholders or holders of REMIC Class A Notes, as
applicable, to the extent payable from the Owner Trust Estate or proceeds
thereof have been paid in full and that all obligations under the Indenture
have
been discharged. The bankruptcy, liquidation, dissolution, death or
incapacity of any Certificateholder shall not (x) operate to terminate this
Trust Agreement or the Trust or (y) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of
the
Trust or the Owner Trust Estate or (z) otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) Except
as
provided in Section 8.01(a), neither the Depositor nor any Certificateholder
shall be entitled to revoke or terminate the Trust.
(c) Notwithstanding
anything to the contrary herein, the Trust shall not terminate upon receipt
of
any notice of the occurrence of a TMP Trigger Event or a REMIC
Conversion.
(d) Notice
of
any termination of the Trust, specifying the Payment Date upon which
Certificateholders shall surrender their Certificates to the Securities
Administrator for payment of the final distribution and cancellation, shall
be
given by the Securities Administrator by letter to Certificateholders mailed
within five Business Days of receipt of notice of the final payment on the
Notes
from the Securities Administrator, stating (i) the Payment Date upon or with
respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Securities
Administrator therein designated, (ii) the amount of any such final payment
and
(iii) that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Certificate Payment Agent therein specified.
The Securities Administrator shall give such notice to the Owner Trustee and
the
Securities Administrator at the time such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to Certificateholders amounts
distributable on such Payment Date pursuant to Section 5.01.
In
the
event that all of the Certificateholders shall not surrender their Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Securities Administrator shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if within
one year following the Payment Date on which final payment of the Certificates
was to have been made pursuant to Section 3.03 of the Indenture, all the
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of
the
funds and other assets that shall remain subject to this Trust Agreement. Any
funds remaining in the Certificate Distribution Account after exhaustion of
such
remedies shall be distributed by the Securities Administrator to the
Depositor.
(e) Upon
the
winding up of the Trust and its termination, the Owner Trustee shall, at the
direction and expense of the Seller, cause the Certificate of Trust to be
cancelled by filing a certificate of cancellation with the Secretary of State
in
accordance with the provisions of Section 3810(c) of the Statutory Trust
Statute.
ARTICLE
IX
Section
9.01. Eligibility
Requirements for Owner Trustee. The Owner Trustee shall at all
times be a corporation satisfying the provisions of Section 3807(a) of the
Statutory Trust Statute; authorized to exercise corporate trust powers; having
a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authorities; and having (or having a parent
that has) a rating of at least Baa3 by Moody's and/or at least BBB- by Standard
and Poor's or is otherwise acceptable to the Rating Agencies. If such
corporation shall publish reports of condition at least annually pursuant to
law
or to the requirements of the aforesaid supervising or examining authority,
then
for the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions
of
this Section 9.01, the Owner Trustee shall resign immediately in the manner
and
with the effect specified in Section 9.02.
Section
9.02. Replacement
of Owner Trustee. The Owner Trustee may at any time resign and be
discharged from the trusts hereby created by giving 30 days prior written notice
thereof to the Depositor. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor owner trustee, by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the
resigning Owner Trustee and to the successor owner trustee. If no successor
owner trustee shall have been so appointed and have accepted appointment within
30 days after the giving of such notice of resignation, the resigning Owner
Trustee may petition any court of competent jurisdiction for the appointment
of
a successor owner trustee.
If
at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 9.01 and shall fail to resign after written request
therefor by the Depositor, or if at any time the Owner Trustee shall be legally
unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of
the
Owner Trustee or of its property shall be appointed, or any public officer
shall
take charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
may remove the Owner Trustee.
Any
resignation or removal of the Owner Trustee and appointment of a successor
owner
trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor owner trustee
pursuant to Section 9.03 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Depositor shall provide notice of such resignation
or removal of the Owner Trustee to each of the Rating Agencies.
Section
9.03. Successor
Owner Trustee. Any successor owner trustee appointed pursuant to
Section 9.02 shall execute, acknowledge and deliver to the Indenture Trustee
and
to its predecessor Owner Trustee an instrument accepting such appointment under
this Trust Agreement, and thereupon the resignation or removal of the
predecessor Owner Trustee shall become effective, and such successor owner
trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under
this Trust Agreement, with like effect as if originally named as Owner Trustee.
The predecessor Owner Trustee shall upon payment of its fees and expenses
deliver to the successor owner trustee all documents and statements and monies
held by it under this Trust Agreement; and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
owner trustee all such rights, powers, duties and obligations.
No
successor owner trustee shall accept appointment as provided in this Section
9.03 unless at the time of such acceptance such successor owner trustee shall
be
eligible pursuant to Section 9.01.
Upon
acceptance of appointment by a successor owner trustee pursuant to this Section
9.03, the Owner Trustee shall mail notice thereof to all Certificateholders,
the
Indenture Trustee, the Noteholders and the Rating Agencies.
Section
9.04. Merger
or Consolidation of Owner Trustee. Any Person into which the
Owner Trustee may be merged or converted or with which it may be consolidated,
or any Person resulting from any merger, conversion or consolidation to which
the Owner Trustee shall be a party, or any Person succeeding to all or
substantially all of the corporate trust business of the Owner Trustee, shall
be
the successor of the Owner Trustee hereunder, without the execution or filing
of
any instrument or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, that such Person
shall be eligible pursuant to Section 9.01 and, provided, further, that the
Owner Trustee shall mail notice of such merger or consolidation to the Rating
Agencies.
Section
9.05. Appointment
of Co-Trustee or Separate Trustee. Notwithstanding any other
provisions of this Trust Agreement, at any time, for the purpose of meeting
any
legal requirements of any jurisdiction in which any part of the Owner Trust
Estate may at the time be located, the Owner Trustee shall have the power and
shall execute and deliver all instruments to appoint one or more Persons to
act
as co-trustee, jointly with the Owner Trustee, or as separate trustee or
trustees, of all or any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Trust or any part thereof and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Owner Trustee may consider necessary
or
desirable. No co-trustee or separate trustee under this Trust Agreement shall
be
required to meet the terms of eligibility as a successor owner trustee pursuant
to Section 9.01 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 9.03.
Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a) All
rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Owner Trustee joining in such act), except to the extent that under any law
of
any jurisdiction in which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including the
holding of title to the Owner Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Owner Trustee;
(b) No
trustee under this Trust Agreement shall be personally liable by reason of
any
act or omission of any other trustee under this Trust Agreement;
and
(c) The
Owner
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee.
Any
notice, request or other writing given to the Owner Trustee shall be deemed
to
have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Trust Agreement and the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Trust Agreement, specifically including every provision of this Trust
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with
the
Owner Trustee.
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee as
its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Trust
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a
new
or successor co-trustee or separate trustee.
ARTICLE
X
Section
10.01. Amendments. (a) This
Trust Agreement may be amended from time to time by the parties hereto as
specified in this Section, provided that any amendment, except as provided
in
subparagraph (e) below, be accompanied by an Opinion of Counsel addressed to
the
Owner Trustee and the Securities Administrator and obtained by the Depositor
to
the effect that such amendment (i) complies with the provisions of
this Section, (ii) would not cause the Trust to be subject to an entity level
tax for federal income tax purposes, and (iii) following the REMIC Conversion,
would cause any REMIC to be subject to tax or otherwise be adversely
affected.
(b) If
the
purpose of the amendment (as detailed therein) is to correct any mistake,
eliminate any inconsistency, cure any ambiguity or deal with any matter not
covered (i.e. to give effect to the intent of the parties and, if applicable,
to
the expectations of the Holders), it shall not be necessary to obtain the
consent of any Noteholders or Certificateholders, but the Owner Trustee and
the
Securities Administrator shall be furnished with (A) a letter from each of
the
Rating Agencies that the amendment will not result in the downgrading or
withdrawal of the rating then assigned to any Note or the rating then assigned
to any Note or (B) an Opinion of Counsel obtained by the Depositor to the effect
that such action will not adversely affect in any material respect the interests
of any Noteholders or Certificateholders.
(c) If
the
purpose of the amendment is to prevent the imposition of any federal or state
taxes at any time that any Security is outstanding or to facilitate, effect
or
reinforce a REMIC Conversion and all activities related thereto, it shall not
be
necessary to obtain the consent of any Noteholders or Certificateholders, but,
in the case of any such amendment to prevent the imposition of taxes, the Owner
Trustee and the Securities Administrator shall be furnished with an Opinion
of
Counsel obtained by the Depositor that such amendment is necessary or helpful
to
prevent the imposition of such taxes and is not materially adverse to any
Noteholders or Certificateholders or any REMIC created in connection with REMIC
Conversion.
(d) If
the
purpose of the amendment is to add or eliminate or change any provision of
the
Trust Agreement other than as contemplated in (b) and (c) above, the amendment
shall require (A) an Opinion of Counsel obtained by the Depositor to the effect
that such action will not adversely affect in any material respect the interests
of any Noteholders or Certificateholders or any REMIC created in connection
with
REMIC Conversion. and (B) either (a) a letter from each of the Rating Agencies
that the amendment will not result in the downgrading or withdrawal of the
rating then assigned to any Note or (b) the consent of Holders of Certificates
evidencing a majority Percentage Interest of the Certificates and the consent
of
Noteholders representing at least 51% of the Note Principal Balance of the
Notes; provided, however, that no such amendment shall (i) reduce in any manner
the amount of, or delay the timing of, payments received that are required
to be
distributed on any Certificate without the consent of the related
Certificateholder, (ii) reduce the aforesaid percentage of Certificates the
Holders of which are required to consent to any such amendment, without the
consent of the Holders of all such Certificates then outstanding or (iii) change
the permitted activities of the Trust as set forth herein.
(e) If
the
purpose of the amendment is to provide for the holding of any of the
Certificates in book-entry form, it shall require the consent of Holders of
all
such Certificates then outstanding; provided, that the Opinion of Counsel
specified in subparagraph (a) above shall not be required.
(f) Promptly
after the execution of any such amendment or consent, the Depositor shall
furnish written notification of the substance of such amendment or consent
to
each Certificateholder, the Indenture Trustee and the Rating Agencies. It shall
not be necessary for the consent of Certificateholders, Noteholders or the
Indenture Trustee pursuant to this Section 10.01 to approve the particular
form
of any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents
(and
any other consents of Certificateholders provided for in this Trust Agreement
or
in any other Basic Document) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(g) In
connection with the execution of any amendment to any agreement to which the
Trust is a party, other than this Trust Agreement, the Owner Trustee and the
Securities Administrator shall be entitled to receive and conclusively rely
upon
an Opinion of Counsel to the effect that such amendment is authorized or
permitted by the documents subject to such amendment and that all conditions
precedent in the Basic Documents for the execution and delivery thereof by
the
Trust or the Owner Trustee, as the case may be, have been
satisfied.
(h) No
amendment or agreement affecting the rights or duties of the Owner Trustee,
or
the Securities Administrator may be entered into without the consent of the
affected party. The Owner Trustee shall not be required to enter into
any amendment which adversely affects its rights, duties or immunities under
this Trust Agreement or the other Basic Documents.
(i) If
the
purpose of the amendment is to add or eliminate or change any provision relating
to the REMIC Conversion or activities related thereto, such amendment shall
not
require the consent of the Noteholders or Certificateholders, provided, however,
the Owner Trustee shall receive written direction from the Certificateholder
to
enter into such amendment. The Owner Trustee may rely on such direction in
entering into such amendment and is under no duty or obligation to determine
compliance with any requirements otherwise set forth herein that may be relevant
to entering into such amendment.
Promptly
after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of State
of
the State of Delaware.
Section
10.02. No
Legal Title to Owner Trust Estate. The Certificateholders shall
not have legal title to any part of the Owner Trust Estate solely by virtue
of
their status as a Certificateholder. The Certificateholders shall be entitled
to
receive distributions with respect to their undivided beneficial interest
therein only in accordance with Articles V and VIII. No transfer, by operation
of law or otherwise, of any right, title or interest of the Certificateholders
to and in their ownership interest in the Owner Trust Estate shall operate
to
terminate this Trust Agreement or the trusts hereunder or entitle any transferee
to an accounting or to the transfer to it of legal title to any part of the
Owner Trust Estate.
Section
10.03. Limitations
on Rights of Others. Except for Section 2.07, the provisions of
this Trust Agreement are solely for the benefit of the Owner Trustee, the
Depositor, the Certificateholders and, to the extent expressly provided herein,
the Indenture Trustee and the Noteholders, and nothing in this Trust Agreement
(other than Section 2.07), whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Trust Agreement or any
covenants, conditions or provisions contained herein.
Section
10.04. Notices. Unless
otherwise expressly specified or permitted by the terms hereof, all notices
shall be in writing and shall be deemed given upon receipt, to the Owner Trustee
at: Wilmington Trust Company, Xxxxxx Square North 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000; Attention: Corporate Trust Services;
to the Depositor at: Structured Asset Mortgage Investments II Inc., 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel; to the Indenture
Trustee and the Securities Administrator at its Corporate Trust
Office; to Standard & Poor’s, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000; to Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxx
Xxxx, Xxx Xxxx 00000; to Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx
00000, or, as to each party, at such other address as shall be designated by
such party in a written notice to each other party.
(a) Any
notice required or permitted to be given to a Certificateholder shall be given
by first-class mail, postage prepaid, at the address of such Holder as shown
in
the Certificate Register. Any notice so mailed within the time prescribed in
this Trust Agreement shall be conclusively presumed to have been duly given,
whether or not the Certificateholder receives such notice.
(b) A
copy of
any notice delivered to the Owner Trustee or the Trust shall also be delivered
to the Depositor.
Section
10.05. Severability. Any
provision of this Trust Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Section
10.06. Separate
Counterparts. This Trust Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section
10.07. Successors
and Assigns. All representations, warranties, covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of,
each of the Depositor, the Owner Trustee and its successors, and each
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or
action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
Section
10.08. No
Petition. The Owner Trustee, by entering into this Trust
Agreement and each Certificateholder, by accepting a Certificate, or holder
of a
residual interest in any REMIC created in connection with a REMIC Conversion,
hereby covenant and agree that they will not at any time institute against
the
Depositor or the Trust or any trust created in connection with a REMIC
Conversion, or join in any institution against the Depositor or the Trust or
any
trust created in connection with a REMIC Conversion of, any bankruptcy
proceedings under any United States federal or state bankruptcy or similar
law
in connection with any obligations to the Certificates, the Notes, this Trust
Agreement or any of the other Basic Documents. This Section shall survive for
one year following the termination of this Trust Agreement.
Section
10.09. No
Recourse. Each Certificateholder by accepting a Certificate
acknowledges that such Certificateholder's Certificates represent beneficial
interests in the Trust only and do not represent interests in or obligations
of
the Depositor, the Seller, the Owner Trustee, the Securities Administrator,
the
Indenture Trustee or any Affiliate thereof and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated in this Trust Agreement, the Certificates or the other Basic
Documents.
Section
10.10. Headings. The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section
10.11. GOVERNING
LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
10.12. Integration. This
Trust Agreement constitutes the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersedes all prior agreements
and
understandings pertaining thereto.
Section
10.13. Obligations. The
execution and delivery of this Trust Agreement by Xxxxx Fargo Bank, N.A. is
not
in its individual capacity but solely in its capacity as Securities
Administrator, and solely for purposes of its appointment and agreement to
serve
as Securities Administrator. The Securities Administrator shall have
no duties or obligations under this Agreement except for those duties expressly
set forth in this Agreement as duties of the Securities Administrator, and
no
implied duties shall be read into this Agreement on the part of the Securities
Administrator. In entering into this Agreement and with respect to
all matters arising under this Agreement, the Securities Administrator shall
enjoy and be protected by all of the rights, powers, benefits, immunities,
indemnities and other protections granted to it under Article VI of the
Indenture, whether acting in its capacity as Securities
Administrator.
ARTICLE
XI
Section
11.01. Consummation
of REMIC Conversion. Upon the receipt by the Owner Trustee, the
Depositor, the Securities Administrator and the Indenture Trustee of a
certification substantially in the form of Exhibit F hereto in connection with
a
proposed transfer of any Privately Offered Notes or Certificates certifying
that
such transfer will cause a TMP Trigger Event, the parties hereto and each Holder
of the Certificates shall facilitate, and shall cooperate with the parties
required to take, the actions specified in Article XI of the Indenture required
to effect a REMIC Conversion, including the conveyance by the Issuing Entity
of
any assets then remaining in the Owner Trust Estate not otherwise liquidated
to
the Underlying REMIC Trust in exchange for REMIC Certificates. In
furtherance of the foregoing, the Trust shall require the proposed transferor
or
proposed transferee of the Certificates causing the TMP Trigger Event to, and
such proposed transferor or proposed transferee hereby agrees to, contribute
to
the Trust, or make provisions for payment of, the amounts specified in clauses
of (iii) and (iv) of Section 11.01(a) of the Indenture in respect of Realized
Losses that would result from the purchase price of the REO Properties and
Non-REMIC-Eligible Assets liquidated in connection with the REMIC Conversion
and
in respect of any initial or ongoing administrative expenses associated with
the
REMIC Conversion and any REMIC created thereby and for any taxes possibly
payable as a result of the classification of the Trust for federal income tax
purposes as a “taxable mortgage pool”, respectively (in each case, without
duplication of amounts so contributed or paid by a proposed transferor or
proposed transferee of Privately Offered Notes pursuant to the
Indenture). In addition to the actions specified in Article XI of the
Indenture, the Trust shall issue new Residual Certificates evidencing the sole
class of “residual interests” in each REMIC created under the REMIC Class A
Indenture.
Section
11.02. Post-REMIC
Conversion. (a) Following a REMIC Conversion, the Securities
Administrator shall, to the extent under its control, conduct the affairs of
the
Owner Trust Estate at all times that any Certificates and REMIC Securities
are
outstanding so as to maintain the status of each REMIC formed in connection
with
such REMIC Conversion as a REMIC under the Code and applicable Treasury
regulations. The Securities Administrator shall not knowingly or intentionally
take any action or omit to take any action that would cause the termination
of
the REMIC status of any such REMIC formed in connection with such REMIC
Conversion.
(b) The
Holder of the greatest percentage interest in a related class of Residual
Certificates shall be the “tax matters person” for each related REMIC formed
pursuant to the REMIC Class A Indenture. Such Holder hereby agrees to appoint
the Securities Administrator, or any successor thereto or assignee thereof,
to
serve on its behalf as tax administrator under the REMIC Class A Indenture
with
respect to each such REMIC.
(c) For
federal income tax reporting purposes, following a REMIC Conversion, each Holder
of a Certificate shall take positions that are consistent with the intended
tax
treatment of the then existing Owner Trust Estate as one or more REMICs and
the
tax treatment expressed in the REMIC Class A Indenture and Underlying REMIC
Trust Pooling and Servicing Agreement with regard to distributions and other
transactions contemplated therein. Each Holder of a Certificate shall consent
and agree to any additional obligations that may be imposed on such Holder
by
amendment of this Trust Agreement by the parties hereto with respect to any
taxes imposed on any REMIC formed in connection with a REMIC Conversion (other
than those arising due to negligence or willful misconduct of a particular
party), including, without limitation, provisions that allow the Securities
Administrator to retain amounts sufficient to pay such taxes (to the extent
otherwise unpaid) from amounts otherwise distributable to such Holder from
the
Certificate Distribution Account.
|
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.,
|
|
|
as
Depositor
|
|
|
By:
|
/s/
Xxxxx Xxxxxxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxxxxxx
|
|
Title:
|
Vice
President
|
|
WILMINGTON
TRUST COMPANY,
|
|
|
as
Owner Trustee
|
|
|
By:
|
/s/ Xxxxxxxx X. Xxxx |
|
Name:
|
Xxxxxxxx
X. Xxxx
|
|
Title:
|
Sr. Financial Services Officer |
|
XXXXX
FARGO BANK, N.A.,
|
|
|
as
Securities Administrator
|
|
|
By:
|
/s/ Xxxxxxxx X. Xxxxxx |
|
Name:
|
Xxxxxxxx X. Xxxxxx |
|
Title:
|
Assistant Vice President |
|
ACKNOWLEDGED
AND AGREED
|
|
|
for
the purposes of the provisions expressly applicable to
it
|
|
|
ALESCO
LOAN HOLDINGS TRUST
|
|
|
as
Seller
|
|
|
By:
|
/s/
Xxxxx X. XxXxxxx III
|
|
Name:
|
Xxxxx
X. XxXxxxx III
|
|
Title:
|
Chief
Executive Officer
|
EXHIBIT
A
Form
of
Certificate
[Face]
THIS
CERTIFICATE IS SUBORDINATE TO THE NOTES AS DESCRIBED IN THE
INDENTURE.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE SECURITIES ADMINISTRATOR,
DEPOSITOR AND OWNER TRUSTEE SHALL HAVE RECEIVED AN OPINION OF COUNSEL AS
DESCRIBED IN THE TRUST AGREEMENT.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.04 OF THE TRUST AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE SECURITIES ADMINISTRATOR,
DEPOSITOR AND OWNER TRUSTEE SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION
LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”) (A “PLAN”), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OR (ii) IF THIS CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PLAN SUBJECT TO ERISA OR SECTION 4975 OF THE
CODE
(OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A TRUSTEE OF ANY
SUCH PLAN, OR ANY OTHER PERSON WHO IS USING THE ASSETS OF ANY SUCH PLAN TO
EFFECT SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE
OF CERTIFICATES IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR
RESULT IN ANY PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
AND
WILL NOT SUBJECT THE DEPOSITOR, THE SELLER, ANY SERVICER, THE OWNER TRUSTEE,
THE
SECURITIES ADMINISTRATOR OR THE MASTER SERVICER TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE)
IN ADDITION TO THOSE UNDERTAKEN IN THE TRUST AGREEMENT, WHICH OPINION OF COUNSEL
SHALL NOT BE AN EXPENSE OF THE DEPOSITOR, THE OWNER TRUSTEE, THE SECURITIES
ADMINISTRATOR, THE SELLER, ANY SERVICER OR THE MASTER
SERVICER.
NO
TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF THIS CERTIFICATE OR INTEREST
THEREIN SHALL BE MADE, AND THE SECURITIES ADMINISTRATOR SHALL REFUSE TO REGISTER
ANY SUCH TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION, UNLESS AND UNTIL (1)
THE
PROPOSED TRANSFEREE SHALL HAVE DELIVERED TO THE OWNER TRUSTEE, THE SECURITIES
ADMINISTRATOR AND THE INDENTURE TRUSTEE (I) IN THE CASE OF A TRANSFER, SALE,
PLEDGE OR DISPOSITION, EXCLUDING A PLEDGE TO SECURE INDEBTEDNESS OR A TRANSFER,
SALE, PLEDGE OR DISPOSITION PURSUANT TO ANY REPURCHASE AGREEMENT (BUT NOT
EXCLUDING A DISPOSITION FOLLOWING A DEFAULT UNDER SUCH INDEBTEDNESS OR
REPURCHASE TRANSACTION), (i) A CERTIFICATE CERTIFYING THAT, FOLLOWING SUCH TRANSFER,
SALE, PLEDGE OR DISPOSITION, THE PROPOSED TRANSFEREE WILL BE EITHER (A) A
SINGLE OWNER OR (B) A PROPORTIONATE OWNER AND
(ii)
AN OPINION OF
NATIONALLY RECOGNIZED TAX COUNSEL (WHICH OPINION SHALL NOT BE AN EXPENSE OF
THE
TRUST), ADDRESSED TO THE SECURITIES ADMINISTRATOR, THE OWNER TRUSTEE AND THE
INDENTURE TRUSTEE, TO THE EFFECT THAT SUCH TRANSFER, SALE, PLEDGE OR
DISPOSITION WILL NOT CAUSE THE TRUST TO BE (X) TREATED AS AN ASSOCIATION TAXABLE
AS A CORPORATION FOR FEDERAL INCOME TAX PURPOSES OR (Y) TAXABLE AS A “PUBLICLY
TRADED PARTNERSHIP” AS DEFINED IN TREASURY REGULATION SECTION 1.7704-1 FOR
FEDERAL INCOME TAX PURPOSES,
(II)
AN
OPINION OF NATIONALLY RECOGNIZED TAX COUNSEL ADDRESSED TO THE SECURITIES
ADMINISTRATOR, THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE (WHICH OPINION SHALL
NOT BE AN EXPENSE OF THE TRUST) TO THE EFFECT THAT SUCH TRANSFER, SALE, PLEDGE
OR DISPOSITION WILL NOT CAUSE THE TRUST TO BE (X) TREATED AS AN ASSOCIATION
TAXABLE AS A CORPORATION FOR FEDERAL INCOME TAX PURPOSES, (Y) TREATED AS A
TAXABLE MORTGAGE POOL FOR FEDERAL INCOME TAX PURPOSES OR (Z) TAXABLE AS A
“PUBLICLY TRADED PARTNERSHIP” AS DEFINED IN TREASURY REGULATION SECTION 1.7704-1
FOR FEDERAL INCOME TAX PURPOSES,
OR
(III) AN
OPINION OF NATIONALLY RECOGNIZED TAX COUNSEL ADDRESSED TO THE SECURITIES
ADMINISTRATOR, THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE (WHICH OPINION SHALL
NOT BE AN EXPENSE OF THE TRUST) TO THE EFFECT THAT SUCH TRANSFER,
SALE, PLEDGE OR DISPOSITION WILL CONSTITUTE A TMP TRIGGER EVENT, AND (2)
IN THE CASE OF ANY TRANSFER,
SALE, PLEDGE OR OTHER DISPOSITION WITH RESPECT TO WHICH THE PROPOSED
TRANSFEREE DELIVERS THE OPINION DESCRIBED IN THE IMMEDIATELY PRECEDING CLAUSE
(III), THE REMIC CONVERSION ASSOCIATED WITH SUCH TMP TRIGGER EVENT (AND ALL
CONDITIONS PRECEDENT THERETO, INCLUDING THE CONTRIBUTION TO THE TRUST OR
PROVISIONS FOR PAYMENT TO VARIOUS PARTIES OF CERTAIN ADDITIONAL FUNDS BY SUCH
PROPOSED TRANSFEROR OR PROPOSED TRANSFEREE PURSUANT TO ARTICLE XI OF THE TRUST
AGREEMENT), AS DESCRIBED IN ARTICLE XI OF THE TRUST AGREEMENT AND ARTICLE XI
OF
THE INDENTURE, HAS BEEN CONSUMMATED. NOTWITHSTANDING THE FOREGOING,
THIS CERTIFICATE MAY BE PLEDGED TO SECURED INDEBTEDNESS AND MAY BE THE SUBJECT
OF REPURCHASE AGREEMENTS TREATED BY THE ISSUING ENTITY AS SECURED INDEBTEDNESS
FOR FEDERAL INCOME TAX PURPOSES, PROVIDED THAT, FOR THE AVOIDANCE OF DOUBT,
THIS
CERTIFICATE MAY NOT BE TRANSFERRED BY THE RELATED LENDER OR REPURCHASE AGREEMENT
COUNTERPARTY UNDER ANY SUCH RELATED INDEBTEDNESS OR REPURCHASE AGREEMENT UPON
A
DEFAULT UNDER ANY SUCH INDEBTEDNESS OR REPURCHASE AGREEMENT, AS APPLICABLE,
EXCEPT IN ACCORDANCE WITH THE FOREGOING.
THIS
CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER,
THE
SECURITIES ADMINISTRATOR, 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 OTHER BASIC
DOCUMENTS.
NO
TRANSFER OF THIS CERTIFICATE OR INTEREST THEREIN SHALL BE MADE, AND THE
SECURITIES ADMINISTRATOR SHALL REFUSE TO REGISTER ANY SUCH TRANSFER, UNLESS
THE
SECURITIES ADMINISTRATOR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS
CERTIFYING AS TO THE PROPOSED TRANSFEREE’S STATUS AS A U.S.
PERSON.
|
Certificate
No.
|
||
|
Cut-off
Date: June 1, 2007
|
Percentage
Interest: ___%
|
|
|
Date
of Amended and Restated Trust Agreement:
June
29, 2007
|
First
Payment Date:
July
25, 2007
|
|
|
Master
Servicer:
Xxxxx
Fargo Bank, N.A.
|
BEAR
XXXXXXX ARM TRUST SERIES 2007-2
Evidencing
a fractional undivided equity interest in the Owner Trust Estate, the property
of which consists primarily of the Mortgage Loans in Bear Xxxxxxx ARM Trust
2007-2 (the “Trust”), a Delaware statutory trust formed by STRUCTURED ASSET
MORTGAGE INVESTMENTS II INC., as depositor, pursuant to the Trust
Agreement referred to below.
This
certifies that Alesco Loan Holdings, LLC is the registered owner of the
Percentage Interest represented hereby.
The
Trust
was created pursuant to a Short Form Trust Agreement, dated as of June 26,
2007,
between the Depositor and Wilmington Trust Company, as owner trustee (the “Owner
Trustee”, which term includes any successor entity under the Trust Agreement)
(the “Short Form Trust Agreement”) as amended and restated by the Amended and
Restated Trust Agreement dated as of June 29, 2007 (as amended and supplemented
from time to time, together with the Short Form Trust Agreement, the “Trust
Agreement”) among the Depositor, the Owner Trustee and Xxxxx Fargo Bank, N.A.,
in its capacity as Securities Administrator, a summary of certain of the
pertinent provisions of which is set forth hereinafter. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Trust
Agreement, to which Trust Agreement the Holder of this Certificate by virtue
of
the acceptance hereof assents and by which such Holder is bound.
This
Certificate is one of a duly authorized issue of Certificates, Series 2007-2
(herein called the “Certificates”) issued under the Trust Agreement to which
reference is hereby made for a statement of the respective rights thereunder
of
the Depositor, the Owner Trustee and the Holders of the Certificates and the
terms upon which the Certificates are executed and delivered. All terms used
in
this Certificate which are defined in the Trust Agreement shall have the
meanings assigned to them in the Trust Agreement. The Owner Trust Estate
consists of the Mortgage Loans in the Bear Xxxxxxx ARM Trust 2007-2. The rights
of the Holders of the Certificates are subordinated to the rights of the Holders
of the Notes, as set forth in the Indenture.
There
will be distributed on the 25th day of each month or, if such 25th day is not
a
Business Day, the next Business Day (each, a “Payment Date”), commencing on July
25, 2007, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
such Payment Date (the “Record Date”), such Certificateholder's Percentage
Interest in the amount to be distributed to Certificateholders on such Payment
Date.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Payment Account that have been
released from the Lien of the Indenture for payment hereunder and that neither
the Owner Trustee in its individual capacity nor the Depositor is personally
liable to the Certificateholders for any amount payable under this Certificate
or the Trust Agreement or, except as expressly provided in the Trust Agreement,
subject to any liability under the Trust Agreement.
The
Holder of this Certificate acknowledges and agrees that its rights to receive
distributions in respect of this Certificate are subordinated to the rights
of
the Noteholders as described in the Indenture, dated as of June 29, 2007, among
the Trust, Xxxxx Fargo Bank, N.A., as securities administrator and Citibank,
N.A., as indenture trustee (the “Indenture”).
The
Depositor and each Certificateholder, by acceptance of a Certificate, agree
to
treat, and to take no action inconsistent with the treatment of, the
Certificates for federal, state and local income tax purposes as an equity
interest in the Trust.
Each
Certificateholder, by its acceptance of a Certificate, covenants and agrees
that
such Certificateholder will not at any time institute against the Depositor,
or
join in any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar
law
in connection with any obligations relating to the Certificates, the Notes,
the
Trust Agreement or any of the Basic Documents.
Distributions
on this Certificate will be made as provided in the Trust Agreement by the
Securities Administrator by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon. Except
as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Securities Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained by the Securities Administrator for that purpose by the Trust, as
provided in Section 3.07 of the Trust Agreement.
Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified in such
notice.
The
Mortgage Loans are subject to purchase in whole, but not in part, by the
Majority Certificateholder on any Payment Date on or after the Payment Date
on
which the sum of the aggregate Scheduled Principal Balance of the Mortgage
Loans
as of the end of the prior Due Period is 10% or less of the Cut-off Date
Scheduled Principal Balance of the Mortgage Loans.
No
transfer, sale, pledge or other disposition of a Certificate shall be made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event
of
any such transfer (other than in connection with the initial issuance thereof
or
a transfer thereof by the Depositor or one of its Affiliates), the Securities
Administrator or the Depositor shall prior to such transfer require the
transferee to execute (A) either (i) (a) an investment letter in substantially
the form attached to the Trust Agreement as Exhibit C (or in such form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor) which investment letter shall not be an expense of the Trust, the
Owner Trustee, the Securities Administrator, the Master Servicer, the Seller,
any Servicer or the Depositor and which investment letter states that, among
other things, such transferee (1) is a “qualified institutional buyer” as
defined under Rule 144A, acting for its own account or the accounts of other
“qualified institutional buyers” as defined under Rule 144A, and (2) is aware
that the proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act of 1933, as amended, provided by Rule
144A
or (ii) (a) a written Opinion of Counsel acceptable to and in form and substance
satisfactory to the Securities Administrator and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from said Act and laws or is being made
pursuant to said Act and laws, which Opinion of Counsel shall not be an expense
of the Trust, the Owner Trustee, the Securities Administrator, the Master
Servicer, the Seller, any Servicer or the Depositor and (b) the transferee
executes a representation letter, substantially in the form of Exhibit D to
the
Trust Agreement, and the transferor executes a representation letter,
substantially in the form of Exhibit F to the Trust Agreement, each acceptable
to and in form and substance satisfactory to the Securities Administrator and
the Depositor certifying the facts surrounding such transfer, which
representation letters shall not be an expense of the Trust, the Owner Trustee,
the Securities Administrator, the Master Servicer, the Seller, any Servicer
or
the Depositor and (B) the Certificate of Non-Foreign Status (in substantially
the form attached to the Trust Agreement as Exhibit D) acceptable to and in
form
and substance reasonably satisfactory to the Securities Administrator and the
Depositor, which certificate shall not be an expense of the Trust, the Owner
Trustee, the Securities Administrator, the Seller, any Servicer or the
Depositor. The Holder of a Certificate desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trust, the Owner Trustee, the Indenture
Trustee, the Securities Administrator, the Master Servicer, the Seller, any
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 (other than in connection with the initial issuance thereof or a
transfer thereof by the Depositor or one of its Affiliates) of Certificates
or
any interest therein shall be made to any Person unless the Depositor, the
Owner
Trustee, the Securities Administrator, the Seller, any Servicer and the Master
Servicer are provided with an Opinion of Counsel which establishes to the
satisfaction of the Depositor, the Owner Trustee, the Securities Administrator,
the Seller, any Servicer and the Master Servicer that the purchase of
Certificates is permissible under applicable law, will not constitute or result
in any prohibited transaction under ERISA or Section 4975 of the Code and will
not subject the Depositor, the Owner Trustee, the Securities Administrator,
the
Seller, any Servicer or the Master Servicer to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in the Trust Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Owner Trustee, the Securities
Administrator, the Seller, any Servicer or the Master Servicer. In lieu of
such
Opinion of Counsel, a Person may provide a certification in the form of Exhibit
G to the Agreement, which the Depositor, the Owner Trustee, the Securities
Administrator, the Seller, any Servicer and the Master Servicer may rely upon
without further inquiry or investigation. Neither an Opinion of Counsel nor
a
certification will be required in connection with the initial transfer of any
such Certificate by the Depositor to an affiliate of the Depositor (in which
case, the Depositor or any affiliate thereof shall have deemed to have
represented that such affiliate is not a Plan or a Person investing Plan Assets
of any Plan) and the Owner Trustee shall be entitled to conclusively rely upon
a
representation (which, upon the request of the Owner Trustee, shall be a written
representation) from the Depositor of the status of such transferee as an
affiliate of the Depositor.
No
transfer, sale, pledge or other disposition of this Certificate shall be
made,
and the Securities Administrator shall refuse to register any such transfer,
sale, pledge or other disposition, unless and until (1) the proposed transferee
shall have delivered to the Owner Trustee, the Securities Administrator and
the
Indenture Trustee (I) in the case of a transfer, sale, pledge or disposition,
excluding a pledge to secure indebtedness or a transfer, sale, pledge or
disposition pursuant to any repurchase agreement (but not excluding a
disposition following a default under such indebtedness or repurchase
transaction), (i) a certificate certifying that, following such transfer,
sale,
pledge or disposition, the proposed transferee will be either (A) a Single
Owner
or (B) a Proportionate Owner and (ii) an opinion of nationally recognized
tax
counsel (which opinion shall not be an expense of the Trust), addressed to
the
Securities Administrator, the Owner Trustee and the Indenture Trustee, to
the
effect that such transfer, sale, pledge or disposition will not cause
the Trust to be (x) treated as an association taxable as a corporation for
federal income tax purposes or (y) taxable as a “publicly traded partnership” as
defined in Treasury Regulation Section 1.7704-1 for federal income tax purposes,
(II) an opinion of nationally recognized tax counsel addressed to the Securities
Administrator, the Owner Trustee and the Indenture Trustee (which opinion
shall
not be an expense of the Trust) to the effect that such transfer, sale, pledge
or disposition will not cause the Trust to be (x) treated as an association
taxable as a corporation for federal income tax purposes, (y) treated as
a
taxable mortgage pool for federal income tax purposes or (z) taxable as a
“publicly traded partnership” as defined in Treasury Regulation Section 1.7704-1
for federal income tax purposes, or (III) an opinion of nationally recognized
tax counsel addressed to the Securities Administrator, the Owner Trustee
and the
Indenture Trustee (which opinion shall not be an expense of the Trust) to
the
effect that such transfer, sale, pledge or disposition will constitute a
TMP
Trigger Event, and (2) in the case of any transfer, sale, pledge or other
disposition with respect to which the proposed transferee delivers the opinion
described in the immediately preceding clause (III), the REMIC Conversion
associated with such TMP Trigger Event (and all conditions precedent thereto,
including the contribution to the Trust or provisions for payment to various
parties of certain additional funds by such proposed transferor or proposed
transferee pursuant to Article XI of the Trust Agreement), as described in
Article XI of the Trust Agreement and Article XI of the Indenture, has been
consummated. Notwithstanding the foregoing, this Certificate may be
pledged to secure indebtedness and may be the subject of repurchase agreements
treated by the Issuing Entity as secured indebtedness for federal income
tax
purposes, provided that, for the avoidance of doubt, this Certificate or
interest therein may not be transferred by the related lender or repurchase
agreement counterparty under any such indebtedness or repurchase agreement
upon
a default under such indebtedness or repurchase agreement, as applicable,
except
in accordance with the foregoing. The provisions of this paragraph
shall not apply to the initial transfer of the Certificates to the Depositor
(or
an affiliate thereof).
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual
signature, this Certificate shall not entitle the Holder hereof to any benefit
under the Trust Agreement or be valid for any purpose.
THIS
CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
|
BEAR
XXXXXXX ARM TRUST SERIES 2007-2
|
||
|
BY:
WILMINGTON TRUST COMPANY,
|
||
|
not
in its individual capacity
|
||
|
but
solely as Owner Trustee
|
||
|
Dated:
June 29, 2007
|
By:
|
|
|
Authorized
Signatory
|
||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A.,
|
||
|
not
in its individual capacity
|
||
|
but
solely as Securities Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
|
or
|
, | |
|
as
Authenticating Agent of the Trust
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
[REVERSE
OF CERTIFICATE]
The
Certificates do not represent an obligation of, or an interest in, the
Depositor, the Seller, the Master Servicer, any Servicer, the Securities
Administrator, 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
other Basic Documents. In addition, this Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment to
certain collections and recoveries with respect to the Mortgage Loans, all
as
more specifically set forth herein and in the Trust Agreement. A copy of the
Trust Agreement may be examined by any Certificateholder upon written request
during normal business hours at the principal office of the Depositor and at
such other places, if any, designated by the Depositor.
The
Trust
Agreement permits the amendment thereof as specified below, provided that any
amendment be accompanied by an Opinion of Counsel to the Owner Trustee to the
effect that such amendment complies with the provisions of the Trust Agreement
and would not cause the Trust to be subject to an entity level tax. If the
purpose of the amendment is to correct any mistake, eliminate any inconsistency,
cure any ambiguity or deal with any matter not covered, it shall not be
necessary to obtain the consent of any Holder, but the Owner Trustee shall
be
furnished with a letter from each of the Rating Agencies that the amendment
will
not result in the downgrading or withdrawal of the rating then assigned to
any
Note or the rating then assigned to any Note. If the purpose of any amendment
is
to facilitate, effect or reinforce a REMIC Conversion and all activities related
thereto, it shall not be necessary to obtain the consent of any Holder. If
the
purpose of the amendment is to prevent the imposition of any federal or state
taxes at any time that any Security is outstanding, it shall not be necessary
to
obtain the consent of any 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 three sentences,
the
amendment shall require either (a) a letter from each of the Rating Agencies
that the amendment will not result in the downgrading or withdrawal of the
rating then assigned to any Note or the rating then assigned to any Note or
(b)
the consent of Holders of the Certificates evidencing a majority of the
Percentage Interests of the Certificates and the Indenture Trustee;
provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the time of, payments received that are required
to be distributed on any Certificate without the consent of the related
Certificateholder, or (ii) reduce the aforesaid percentage of Certificates
the
Holders of which are required to consent to any such amendment without the
consent of the Holders of all such Certificates then outstanding.
As
provided in the Trust Agreement and subject to certain limitations therein
set
forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the
offices or agencies of the Securities Administrator maintained by the Trust,
as
provided in the Trust Agreement, accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon
one
or more new Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee.
The
initial Securities Administrator appointed under the Trust Agreement is Xxxxx
Fargo Bank, N.A.
Except
as
provided in the Trust Agreement, the Certificates are issuable only in a minimum
Certificate Percentage Interest of 10%. As provided in the Trust Agreement
and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but
the
Owner Trustee or the Securities Administrator may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The
Owner
Trustee, the Securities Administrator and any agent of the Owner Trustee or
the
Securities Administrator may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Securities Administrator 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.
FOR
VALUE
RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Please
print or type name and address, including postal zip code, of
assignee)
the
within Certificate, and all rights thereunder, hereby irrevocably constituting
and appointing
to
transfer said Certificate on the books of the Securities Administrator, with
full power of substitution in the premises.
Dated:
|
*/
|
||
|
Signature
Guaranteed:
|
|
*/
|
*/
NOTICE: The signature to this assignment must correspond with the
name as it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must
be
guaranteed by a member firm of the New York Stock Exchange or a commercial
bank
or trust company.
DISTRIBUTION
INSTRUCTIONS
|
The
assignee should include the following for the information of the
Securities Administrator:
|
|
|
Distributions
shall be made by
wire transfer in immediately available funds to
___________________________________________________________
|
|
|
for
the account of
______________________________________________________________________________________________________________
|
,
|
|
account
number__________________________, or, if mailed by check, to
__________________________________________________________________
|
.
|
|
Applicable
statements should be mailed to
____________________________________________________________________________________________
|
.
|
|
Signature
of assignee or agent
|
|
|
(for
authorization of wire
|
|
|
transfer
only)
|
EXHIBIT
B
CERTIFICATE
OF TRUST OF
BEAR
XXXXXXX ARM TRUST 2007-2
THIS
Certificate of Trust of Bear Xxxxxxx ARM Trust 2007-2 (the “Trust”), dated June
___, 2007, is being duly executed and filed by Wilmington Trust Company, a
Delaware banking corporation, as trustee, to form a statutory trust under the
Delaware Statutory Trust Act (12 Del. Code, § 3801 et
seq.).
|
Wilmington
Trust Company,
not
in its individual capacity but solely as owner trustee under a
Trust
Agreement dated as of June___, 2007
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
C
[FORM
OF
RULE 144A INVESTMENT REPRESENTATION]
Description
of Rule 144A Securities, including numbers:
The
undersigned seller, as registered holder (the “Seller”), intends to transfer the
Rule 144A Securities described above to the undersigned buyer (the
“Buyer”).
1. In
connection with such transfer and in accordance with the agreements pursuant
to
which the Rule 144A Securities were issued, the Seller hereby certifies the
following facts: Neither the Seller nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security to,
or
solicited any offer to buy or accept a transfer, pledge or other disposition
of
the Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached or negotiated with respect to
the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Rule 144A
Securities under the Securities Act of 1933, as amended (the “1933 Act”), or
that would render the disposition of the Rule 144A Securities a violation of
Section 5 of the 1933 Act or require registration pursuant thereto, and that
the
Seller has not offered the Rule 144A Securities to any person other than the
Buyer or another “qualified institutional buyer” as defined in Rule 144A under
the 0000 Xxx.
2. The
Buyer warrants and represents to, and covenants with, the Owner Trustee, the
Securities Administrator and the Depositor (as defined in the Amended and
Restated Trust Agreement (the “Agreement”), dated as of June 29, 2007, among
Structured Asset Mortgage Investments II Inc., as Depositor, Wilmington Trust
Company, as Owner Trustee and Xxxxx Fargo Bank, N.A. in its capacity as
Securities Administrator pursuant to Section 3.05 of the Agreement and Citibank,
N.A., as indenture trustee, as follows:
a. The
Buyer understands that the Rule 144A Securities have not been registered under
the 1933 Act or the securities laws of any state.
b. The
Buyer considers itself a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Rule 144A
Securities.
c. The
Buyer has been furnished with all information regarding the Rule 144A Securities
that it has requested from the Seller, the Indenture Trustee, the Owner Trustee
or the Master Servicer.
d. Neither
the Buyer nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Rule 144A Securities, any interest in the
Rule
144A Securities or any other similar security to, or solicited any offer to
buy
or accept a transfer, pledge or other disposition of the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security from,
or
otherwise approached or negotiated with respect to the Rule 144A Securities,
any
interest in the Rule 144A Securities or any other similar security with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, that would
constitute a distribution of the Rule 144A Securities under the 1933 Act or
that
would render the disposition of the Rule 144A Securities a violation of Section
5 of the 1933 Act or require registration pursuant thereto, nor will it act,
nor
has it authorized or will it authorize any person to act, in such manner with
respect to the Rule 144A Securities.
e. The
Buyer is a “qualified institutional buyer” as that term is defined in Rule 144A
under the 1933 Act and has completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2. The Buyer is aware that
the
sale to it is being made in reliance on Rule 144A. The Buyer is acquiring the
Rule 144A Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the 1933 Act.
3. The
Buyer warrants and represents to, and covenants with, the Seller, the Indenture
Trustee, Owner Trustee, Securities Administrator, Master Servicer and the
Depositor that either (1) the Buyer is (A) not an employee benefit plan (within
the meaning of Section 3(3) of the Employee Retirement Income Security Act
of
1974, as amended (“ERISA”)), or a plan (within the meaning of Section 4975(e)(1)
of the Internal Revenue Code of 1986 (“Code”)), which (in either case) is
subject to ERISA or Section 4975 of the Code (both a “Plan”), and (B) is not
directly or indirectly purchasing the Rule 144A Securities on behalf of, as
investment manager of, as named fiduciary of, as trustee of, or with “plan
assets” of a Plan, or (2) the Buyer understands that registration of transfer of
any Rule 144A Securities to any Plan, or to any Person acting on behalf of
any
Plan, will not be made unless such Plan delivers an opinion of its counsel,
addressed and satisfactory to the Securities Administrator, the Owner Trustee,
the Master Servicer, the Seller, any Servicer and the Depositor, to the effect
that the purchase and holding of the Rule 144A Securities by, on behalf of
or
with “plan assets” of any Plan is permissible under applicable law, would not
constitute or result in a prohibited transaction under ERISA or Section 4975
of
the Code, and would not subject the Depositor, the Owner Trustee, the Securities
Administrator, the Seller, any Servicer or the Master Servicer to any obligation
or liability (including liabilities under ERISA or Section 4975 of the Code)
in
addition to those undertaken in the Agreement, which Opinion of Counsel shall
not be an expense of the Depositor, the Owner Trustee, the Securities
Administrator, the Seller, any Servicer or the Master Servicer.
4. This
document may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same document.
|
Print
Name of Seller
|
Print
Name of Buyer
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
Taxpayer
Identification:
|
Taxpayer
Identification:
|
|||
|
No.
|
No.
|
|||
|
Date:
|
Date:
|
|||
ANNEX
1 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers Other Than Registered Investment Companies]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933
(“Rule 144A”) because (i) the Buyer owned and/or invested on a discretionary
basis $1 in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and
(ii)
the Buyer satisfies the criteria in the category marked below.
|
___
|
Corporation,
etc. The Buyer is a corporation (other than a bank, savings and
loan
association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue
Code.
|
|
___
|
Bank.
The Buyer (a) is a national bank or banking institution organized
under
the laws of any State, territory or the District of Columbia, the
business
of which is substantially confined to banking and is supervised by
the
State or territorial banking commission or similar official or is
a
foreign bank or equivalent institution, and (b) has an audited net
worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached
hereto.
|
|
___
|
Savings
and Loan. The Buyer (a) is a savings and loan association, building
and loan association, cooperative bank, homestead association or
similar
institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has
an
audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements.
|
|
___
|
Broker-Dealer.
The Buyer is a dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
|
|
___
|
Insurance
Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which
is
subject to supervision by the insurance commissioner or a similar
official
or agency of a State or territory or the District of
Columbia.
|
|
___
|
State
or Local Plan. The Buyer is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality
of the
State or its political subdivisions, for the benefit of its
employees.
|
|
___
|
ERISA
Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of
1974.
|
|
___
|
Investment
Adviser. The Buyer is an investment adviser registered under the
Investment Advisers Act of 1940.
|
|
___
|
SBIC.
The Buyer is a Small Business Investment Company licensed by the
U.S.
Small Business Administration under Section 301(c) or (d) of the
Small
Business Investment Act of 1958.
|
|
___
|
Business
Development Company. The Buyer is a business development company as
defined in Section 202(a)(22) of the Investment Advisers Act of
1940.
|
|
___
|
Trust
Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established
and
maintained by a State, its political subdivisions, or any agency
or
instrumentality of the State or its political subdivisions, for the
benefit of its employees, or (b) employee benefit plans within the
meaning
of Title I of the Employee Retirement Income Security Act of 1974,
but is
not a trust fund that includes as participants individual retirement
accounts or H.R. 10 plans.
|
3. The
term “securities” as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part
of
an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit Notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934.
5. The
Buyer acknowledges that it is familiar with Rule 144A and understands that
the
seller to it and other parties related to the Certificates are relying and
will
continue to rely on the statements made herein because one or more sales to
the
Buyer may be in reliance on Rule 144A.
|
_____
Yes
|
_____
No
|
Will
the Buyer be purchasing the Rule 144A
Securities
only for the Buyer's own account?
|
6. If
the answer to the foregoing question is “no”, the Buyer agrees that, in
connection with any purchase of securities sold to the Buyer for the account
of
a third party (including any separate account) in reliance on Rule 144A, the
Buyer will only purchase for the account of a third party that at the time
is a
“qualified institutional buyer” within the meaning of Rule 144A. In addition,
the Buyer agrees that the Buyer will not purchase securities for a third party
unless the Buyer has obtained a current representation letter from such third
party or taken other appropriate steps contemplated by Rule 144A to conclude
that such third party independently meets the definition of “qualified
institutional buyer” set forth in Rule 144A.
7. The
Buyer will notify each of the parties to which this certification is made of
any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of Rule 144A Securities will constitute a reaffirmation
of
this certification as of the date of such purchase.
|
Print
Name of Buyer
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title
|
| Date: | |
ANNEX
2 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers That Are Registered Investment Companies]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933 (“Rule 144A”) because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, and (ii) as marked
below, the Buyer alone, or the Buyer's Family of Investment Companies, owned
at
least $100,000,000 in securities (other than the excluded securities referred
to
below) as of the end of the Buyer's most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the Buyer's Family
of
Investment Companies, the cost of such securities was used.
|
____
|
The
Buyer owned $____________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent
fiscal year (such amount being calculated in accordance with Rule
144A).
|
|
____
|
The
Buyer is part of a Family of Investment Companies which owned in
the
aggregate $___________ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal
year
(such amount being calculated in accordance with Rule
144A).
|
3. The
term “Family of Investment Companies” as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The
term “securities” as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family
of
Investment Companies, (ii) bank deposit Notes and certificates of deposit,
(iii)
loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
5. The
Buyer is familiar with Rule 144A and understands that each of the parties to
which this certification is made are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the Buyer's
own account.
6. The
undersigned will notify each of the parties to which this certification is
made
of any changes in the information and conclusions herein. Until such notice,
the
Buyer's purchase of Rule 144A Securities will constitute a reaffirmation of
this
certification by the undersigned as of the date of such purchase.
|
Print
Name of Buyer
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
IF
AN ADVISER:
|
|
|
Print
Name of Buyer
|
|
|
Date:
|
|
EXHIBIT
D
CERTIFICATE
OF NON-FOREIGN STATUS
This
Certificate of Non-Foreign Status (“certificate”) is delivered pursuant to
Section 3.02 of the Amended and Restated Trust Agreement, dated as of June
29,
2007 (the “Trust Agreement”), among Structured Asset Mortgage Investments II
Inc., as Depositor, Wilmington Trust Company, as Owner Trustee and Xxxxx Fargo
Bank, N.A., in its capacity as Securities Administrator, in connection with
the
acquisition of, transfer to or possession by the undersigned, whether as
beneficial owner for U.S. federal income tax purposes (the “Beneficial Owner”),
or nominee on behalf of the Beneficial Owner of the Certificates, Series 2007-2
(the “Certificates”). 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 Certificates held by the undersigned, the undersigned
hereby certifies:
Part
I. Complete
Either A or B
A. Individual
as Beneficial Owner
|
1.
|
I
am (The Beneficial Owner is ) not a non-resident alien for purposes
of
U.S. federal income taxation;
|
|
2.
|
My
(The Beneficial Owner's) name and home address
are:
|
|
;
and
|
|
3.
|
My
(The Beneficial Owner's) U.S. taxpayer identification number (Social
Security Number) is
_____________________________________.
|
B. Corporate,
Partnership or Other Entity as Beneficial Owner
|
1.
|
(Name
of the Beneficial Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined
in the Code and Treasury
Regulations;
|
|
2.
|
The
Beneficial Owner's office address and place of incorporation (if
applicable) is _______________________________;
and
|
|
3.
|
The
Beneficial Owner's U.S. employer identification number is
__________________________________.
|
Part
II. Nominees
If
the
undersigned is the nominee for the Beneficial Owner, the undersigned certifies
that this certificate has been made in reliance upon information contained
in:
_________ an
IRS Form W-9
_________ a
form such as this or substantially similar
provided
to the undersigned by an appropriate person and (i) the undersigned agrees
to
notify the Trust at least thirty (30) days prior to the date that the form
relied upon becomes obsolete, and (ii) in connection with a change in the
Beneficial Owner, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part
III. Declaration
The
undersigned, as the Beneficial Owner or a nominee thereof, agrees to notify
the
Trust within sixty (60) days of the date that the Beneficial Owner becomes
a
foreign person. The undersigned understands that this certificate may be
disclosed to the Internal Revenue Service by the Trust and any false statement
contained therein could be punishable by fines, imprisonment or
both.
Under
penalties of perjury, I declare that I have examined this certificate and to
the
best of my knowledge and belief it is true, correct and complete and will
further declare that I will inform the Trust of any change in the information
provided above, and, if applicable, I further declare that I have the authority*
to sign this document.
|
Name
|
|
|
Title
(if applicable)
|
|
|
Signature
and Date
|
*Note:
If
signed pursuant to a power of attorney, the power of attorney must accompany
this certificate.
EXHIBIT
E
FORM
OF
INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Wilmington
Trust Company, as Owner Trustee
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Re: Bear
Xxxxxxx ARM Trust 2007-2, Trust Certificates,
Series
2007-2 (the
“Certificates”)
Ladies
and Gentlemen:
In
connection with our acquisition of the above-captioned Certificates, we certify
that (a) we understand that the Certificates are not being registered under
the
Securities Act of 1933, as amended (the “Act”), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
“accredited investor,” as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c)
we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended,
or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986,
as
amended, nor are we acting on behalf of any such plan, (e) we are acquiring
the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action
which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an Opinion of Counsel satisfactory
to
the addressees of this certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser
or
transferee has otherwise complied with any conditions for transfer set forth
in
the Trust Agreement.
|
Very
truly yours,
|
|
|
[TRANSFEREE]
|
|
|
By:
|
|
|
|
Authorized
Officer
|
EXHIBIT
F
FORM
OF TRANSFEREE CERTIFICATE
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Citibank,
N.A., as Indenture Trustee
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Re: Proposed
Transfer of Certificates, Bear Xxxxxxx ARM Trust 2007-2
Gentlemen:
This
certification is being made by _________ (the “Transferee”) in connection with
the proposed transfer, sale, pledge or disposition (the “Transfer”) of a
Certificate representing ___% fractional undivided interest in Bear Xxxxxxx
ARM
Trust 2007-2 created pursuant to a Trust Agreement, dated as of June 26, 2007
(such agreement, as amended by the Amended and Restated Trust Agreement dated
June 29, 2007, being referred to herein as the “Trust Agreement”), among
Structured Asset Mortgage Investments II Inc., a Delaware corporation, as
depositor (the “Depositor”), Wilmington Trust Company, a Delaware banking
corporation, as owner trustee (the “Owner Trustee”) and Xxxxx Fargo Bank, N.A.,
not individually but acting solely as Securities Administrator. Initially
capitalized terms used but not defined herein have the meanings assigned to
them
in the Indenture.
The
Transferee hereby certifies, represents and warrants to, and covenants with,
the
Owner Trustee, the Securities Administrator and the Indenture Trustee
that:
|
|
(i)
|
the
Transfer is not a Transfer to secure indebtedness or a Transfer
pursuant to any repurchase agreement (other than a Transfer following
a default under such indebtedness or repurchase transaction),
and,
|
|
|
(ii)
|
(x)
|
following such Transfer, the
Transferee (check only one of the applicable clauses (i) or (ii)
below)
|
____(i) will
be a Single Owner; or
____(ii) will
be a Proportionate Owner, and
(y)
such Transfer will not cause the Trust to be treated as an
association taxable as a corporation for federal income tax purposes, or
taxable
as a “publicly traded partnership” as defined in Treasury Regulation Section
1.7704-1 for federal income tax purposes, as evidenced by an opinion of
nationally recognized tax counsel addressed and provided to the Securities
Administrator, the Owner Trustee and the Indenture Trustee (at the expense
of
the proposed transferor or proposed transferee).
|
Date:
|
|||
|
Authorized
Officer
|
|||
|
Signature
|
|||
|
Name
|
|||
|
Title
|
EXHIBIT
G
FORM
OF
ERISA LETTER
[DATE]
Wilmington
Trust Company, as Owner Trustee
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Re: Proposed
Transfer of Trust Certificates,
Bear
Xxxxxxx ARM Trust 2007-2 (the
“Certificates”)
Gentlemen:
This
certification is being made by ___________________ (the “Transferee”) in
connection with the proposed Transfer
by____________ (the “Transferor”) of a
trust certificate (the “Trust Certificate”) representing __% fractional
undivided interest in Bear Xxxxxxx ARM Trust 2007-2 (the “Trust”) created
pursuant to a Trust Agreement, dated as of June 26, 2007 (such agreement, as
amended by the Amended and Restated Trust Agreement dated June 29, 2007, being
referred to herein as the “Trust Agreement”) among Structured Asset Mortgage
Investments II Inc. (the “Company”), Wilmington Trust Company, as Owner Trustee
(the “Owner Trustee”) and Xxxxx Fargo Bank, N.A., in its capacity as Securities
Administrator. Initially capitalized terms used but not defined herein have
the
meanings assigned to them in the Trust Agreement. The Transferor hereby
certifies, represents and warrants to, and covenants with, the Company, the
Owner Trustee and the Securities Administrator that:
(i) either
(a) or (b) is satisfied, as marked below:
___ a. The
Transferor is not any employee benefit plan subject to the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), or the Internal Revenue Code
of 1986 (the “Code”), (each, a “Plan”) a Person acting, directly or indirectly,
on behalf of a Plan or any Person acquiring such Certificates with “plan assets”
of a Plan within the meaning of the Department of Labor regulation promulgated
at 29 C.F.R. § 2510.3-101; or
___ b. The
Transferor is a Plan, a Person acting, directly or indirectly, on behalf of
a
Plan or any Person acquiring such Certificates with “plan assets” of a Plan
within the meaning of the Department of Labor regulation promulgated at 29
C.F.R. § 2510.3-101 and will
provide the Depositor, the Owner Trustee, the Securities Administrator, the
Securities Administrator and the Master Servicer with an Opinion of Counsel,
satisfactory to the Depositor, the Owner Trustee, the Securities Administrator,
the Securities Administrator and the Master Servicer, to the effect that the
purchase and holding of a Certificate by or on behalf of the Transferor is
permissible under applicable law, will not constitute or result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments) and will not subject the
Depositor, the Owner Trustee, the Securities Administrator, the Seller, any
Servicer or the Master Servicer to any obligation or liability (including
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Trust Agreement, which Opinion of Counsel shall not be an
expense of the Depositor, the Owner Trustee, the Securities Administrator,
the
Seller, any Servicer or the Master Servicer; and
(ii) the
Transferor is familiar with the prohibited transaction restrictions and
fiduciary responsibility requirements of Sections 406 and 407 of ERISA and
Section 4975 of the Code and understands that each of the parties to which
this
certification is made is relying and will continue to rely on the statements
made in this paragraph.
|
Very
truly yours,
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
H
FORM
OF
REMIC CLASS A INDENTURE
(Provided
under Separate Cover)
EXHIBIT
I
UNDERLYING
REMIC TRUST POOLING AND SERVICING AGREEMENT
(Provided
under Separate Cover)