EXECUTION COPY
STRUCTURED ASSET
MORTGAGE INVESTMENTS II INC.,
Depositor
and
U.S. BANK NATIONAL ASSOCIATION,
Trustee
POOLING AGREEMENT
Dated as of November 30,
2005
$75,000,000
STRUCTURED ASSET MORTGAGE INVESTMENTS II TRUST 2005-F3
Pass-Through Certificates
Series 2005-F3
TABLE OF CONTENTS
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Section 1.01
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Defined Terms
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1
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ARTICLE II
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CONVEYANCE OF THE POOLED CERTIFICATES; ENTRY
INTO INTEREST RATE CAP;
ORIGINAL ISSUANCE OF CERTIFICATES
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8
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Section 2.01
Section 2.02
Section 2.03
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Conveyance of the Pooled Certificates; Entry
into Interest Rate Cap
Acceptance of Trust Fund by Trustee; Initial Issuance of
Certificates
Representations and Warranties of the Depositor and the Trustee
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8
9
10
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ARTICLE III
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ADMINISTRATION OF THE POOLED CERTIFICATES;
PAYMENTS
AND REPORTS TO CERTIFICATEHOLDERS
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13
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Section 3.01
Section 3.02
Section 3.03
Section 3.04
Section 3.05
Section 3.06
Section 3.07
Section 3.08
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Administration of the Trust Fund and the
Pooled Certificates
Collection of Monies
Establishment of Certificate Account; Deposits Therein
Permitted Withdrawals From the Certificate Account
Distributions
Statements to Certificateholders; Information to Cap Counterparty;
Reporting
Access to Certain Documentation and Information
Calculation of Distribution Amounts
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14
14
15
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18
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ARTICLE IV
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THE CERTIFICATES
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19
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Section 4.01
Section 4.02
Section 4.03
Section 4.04
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The Certificates
Registration of Transfer and Exchange of Certificates
Mutilated, Destroyed, Lost or Stolen Certificates
Persons Deemed Owners
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20
21
22
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Section 5.01
Section 5.02
Section 5.03
Section 5.04
Section 5.05
Section 5.06
Section 5.07
Section 5.08
Section 5.09
Section 5.10
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Duties of Trustee
Certain Matters Affecting the Trustee
Trustee Not Liable for Certificates or Pooled Certificates
Trustee May Own Certificates
Trustee's Fees; Indemnification of the Trustee
Eligibility Requirements for Trustee
Resignation and Removal of the Trustee
Successor Trustee
Merger or Consolidation of Trustee
Appointment of Co-Trustee or Separate Trustee
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24
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25
25
25
26
27
27
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ARTICLE VI
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THE DEPOSITOR
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28
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Section 6.01
Section 6.02
Section 6.03
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Liability of the Depositor
Merger, Consolidation or Conversion of the Depositor
Limitation on Liability of the Depositor and Others
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28
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29
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ARTICLE VII
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TERMINATION
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29
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Section 7.01
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Termination
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28
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ARTICLE VIII
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MISCELLANEOUS PROVISIONS
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30
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Section 8.01
Section 8.02
Section 8.03
Section 8.04
Section 8.05
Section 8.06
Section 8.07
Section 8.08
Section 8.09
Section 8.10
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Amendment
Counterparts
Limitation on Rights of Certificateholders
Governing Law
Notices
Severability of Provisions
Successors and Assigns
Article and Section Headings
Notices to Rating Agency
Acts of Certificateholders
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Exhibit A
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Form of Class FA Certificate
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Schedule A
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Pooled Certificates
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POOLING AGREEMENT, dated as of November 30, 2005, by and between
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., as depositor (the
"Depositor"), and U.S. Bank National Association, as trustee (the
"Trustee").
PRELIMINARY
STATEMENT
The
Depositor intends to cause the issuance of and to sell its
Pass-Through Certificates, Series 2005-F3 (the “
Certificates ”) representing in the aggregate the
entire beneficial ownership of a trust fund (the “ Trust
Fund ”), the primary assets of which are the Pooled
Certificates and the Interest Rate Cap (each as defined
herein).
All
things necessary to make this Agreement a valid declaration of
trust by the Depositor in accordance with its terms have been
done.
In
consideration of the premises and the mutual agreements herein
contained, the Depositor and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms .
Whenever
used in this Agreement, including the Preliminary Statement, the
following words and phrases, unless the context otherwise requires,
shall have the following meanings:
Affiliate : With respect to any specified Person, any other
Person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common
control with, such specified Person. For the purposes of this
definition, “control” when used with respect to any
specified Person means possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by
contract or otherwise, and the terms “controlling,”
“controlled by” and “under common control
with” have meanings correlative to the foregoing.
Agreement : This Pooling Agreement and all amendments hereof
and supplements hereto.
Available Funds : As of any date of determination, the
aggregate amount on deposit in the Certificate Account as of such
date, net of any portion thereof which represents amounts to be
paid to any Person pursuant to clauses (ii), (iii) and (v) of
Section 3.04.
Available Funds Cap : With respect to the Certificates and a
Distribution Date on or before the termination of the Interest Rate
Cap, 5.00% plus amounts, if any, paid to the Trust pursuant to the
Interest Rate Cap, expressed as a per annum rate and, after the
termination of the Interest Rate Cap, 5.00% per annum.
Business Day : Any day other than a Saturday, a Sunday or a
day on which the Federal Reserve is closed or on which banking
institutions in New York or in the city in which the Corporate
Trust Office of the Trustee is located are authorized or obligated
by law or executive order to close.
Cap
Counterparty : Bear Stearns Financial Products, Inc.
Certificate : Any Class FA Certificate as executed hereunder
by the Trustee and authenticated and delivered hereunder by the
Certificate Registrar, substantially in the form of Exhibit A
hereto.
Certificate Account : The trust account or accounts, which
shall at all times be Eligible Accounts, created and maintained by
the Trustee for the benefit of the Certificateholders pursuant to
Section 3.03. Funds deposited in the Certificate Account shall be
held in trust for the Certificateholders for the uses and purposes
set forth in Article III hereof.
Certificate Owner : Any Person who is the beneficial owner
of a Certificate registered in the name of the Depository or its
nominee.
Certificate Registrar and Certificate Register : Shall each
have the meanings provided in Section 4.02.
Certificateholder or Holder : The person in whose name a
Certificate is registered in the Certificate Register, except that,
subject to Sections 8.01(b) and 8.10(e), solely for the purpose of
giving any consent, approval or waiver pursuant to this Agreement,
any Certificate registered in the name of the Depositor or any
Affiliate thereof shall be deemed not to be outstanding and shall
not be taken into account for purposes of determining whether the
Holders of Certificates evidencing the requisite aggregate
Percentage Interest necessary to effect any such consent, approval
or waiver has been obtained, unless such Persons collectively own
all the Certificates.
Class : Collectively, all of the Certificates bearing the
same designation.
Closing Date : November 30, 2005.
Code : The Internal Revenue Code of 1986, as amended.
Commission : U.S. Securities and Exchange Commission.
Corporate Trust Office : The corporate trust office of the
Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered,
which office at the date of the execution of this Agreement is
located at Corporate Trust Services, One Federal Street, Boston, MA
02110, Attention: Structured Finance/SAMI II 2005-F3, telephone no.
(800) 934-6802, facsimile no. 617-603-6638.
Current Principal Amount : With respect to any Certificate,
as of any date of determination, the original principal amount of
such Certificate minus the aggregate of all distributions of
principal previously made on that Certificate pursuant to Section
3.05. With respect to the Class FA Certificates, the sum of the
Current Principal Amounts of all Class FA Certificates.
DBRS : Dominion Bond Rating Service and its successors in
interest.
Definitive Certificates : The meaning specified in Section
4.01(b) hereof.
Depositor : Structured Asset Mortgage Investments II Inc., a
Delaware corporation, or its successor in interest.
Depositor Certification : A written certification covering
administration of the Trust prepared by the Trustee and signed by
an officer of the Depositor that complies with (i) the
Sarbanes-Oxley Act of 2002, as amended from time to time, and (ii)
the February 21, 2003 Statement by the Staff of the Division of
Corporation Finance of the Securities and Exchange Commission
Regarding Compliance by Asset-Backed Issuers with Exchange Act
Rules 13a-14 and 15d-14, or any subsequent statement or regulation
of the SEC with respect thereto, in each case as in effect from
time to time.
Depository : DTC, the nominee of which is Cede & Co., or
any successor thereto.
Depository Agreement : The meaning specified in Subsection
4.01(a) hereof.
Depository Participant : A broker, dealer, bank or other
financial institution or other Person for whom from time to time
the Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
Determination Time : 1:00 P.M., Eastern Standard Time, on a
Distribution Date.
Distribution Date : With respect to any month, the
Distribution Date shall be the Business Day following the Freddie
Mac Pooled Certificate Distribution Date, beginning December 16,
2005.
DTC : The Depository Trust Company.
Eligible Account : Any of (i) an account maintained with a
federal or state chartered depository institution or trust company,
the short-term unsecured debt obligations of which are rated at
least R-1 (high) by DBRS at any time funds are on deposit therein,
(ii) a trust account or accounts maintained with the trust
department of a federally chartered depository institution or trust
company acting in its fiduciary capacity, or (iii) a trust account
or accounts maintained with the trust department of a state
chartered depository institution or trust company acting in its
fiduciary capacity and subject to regulations regarding fiduciary
funds on deposit therein substantially similar to 12 CFR §
9.10(b).
ERISA : The Employee Retirement Income Security Act of 1974,
as amended, and the rules and regulations promulgated
thereunder.
Exchange Act : The Securities Exchange Act of 1934, as
amended.
Final Distribution Date : With respect to the Pooled
Certificates or Certificates, as applicable, the Pooled Certificate
Distribution Date or the Distribution Date, as applicable, on which
the final distribution thereon is to be made in accordance with the
related Underlying Agreement or this Agreement, as the case may
be.
Freddie Mac : The Federal Home Loan Mortgage
Corporation.
Freddie Mac Pooled Certificate Distribution Date : With
respect to the Pooled Freddie Mac Certificates, the 15
th day of each month or, if such day is not a business
day as defined in the Underlying Agreement, the next succeeding
business day as so defined.
Initial LIBOR Rate : With respect to the Class FA
Certificates, 4.07%.
Interest Accrual Period : For each Distribution Date, the
period from the 15th day of the month preceding the month of such
Distribution Date through the 14th day of the month of such
Distribution Date, commencing for the December 2005 Distribution
Date on November 15, 2005.
Interest Distribution Amount : With respect to the
Certificates and any Distribution Date, the amount of interest
accrued during the related Interest Accrual Period at the related
Pass-Through Rate on the Current Principal Amount of the
Certificates immediately prior to such Distribution Date.
Interest Rate Cap : The Interest Rate Cap, related to the
Class FA Certificates, Ref. No. FXNEC7560, between the Trust and
the Cap Counterparty, dated November 30, 2005.
Investment Company Act : The Investment Company Act of 1940,
as amended from time to time, and the rules and regulations
promulgated thereunder.
Latest Possible Final Distribution Date : With respect to
the Certificates, the Distribution Date occurring in April
2034.
LIBOR : With respect to the first Interest Accrual Period,
the Initial LIBOR Rate. With respect to each subsequent Interest
Accrual Period, the LIBOR being used by Freddie Mac for the Pooled
Certificates as ascertained by the Trustee on the applicable LIBOR
Determination Date. The establishment of LIBOR by the Trustee and
the Trustee’s subsequent calculation of the Pass-Through Rate
applicable to the Certificates for each Interest Accrual Period, in
the absence of manifest error, will be final and binding.
LIBOR Business Day : a day on which banks are open for
dealing in foreign currency and exchange in London and New York
City.
LIBOR Determination Date : The second LIBOR Business Day
immediately preceding the commencement of each Interest Accrual
Period.
Majority Certificateholders : The Holders of Certificates
evidencing in the aggregate greater than 50% of the aggregate
Current Principal Amount of all the Certificates.
Notice of Final Distribution : With respect to the Pooled
Certificates, any notice provided pursuant to the Underlying
Agreement to the effect that final distribution on such Pooled
Certificates shall be made only upon presentment and surrender
thereof. With respect to the Certificates, the notice to be
provided pursuant to Section 7.01(b) to the effect that final
distribution on the Certificates shall be made only upon
presentment and surrender thereof.
Officers’ Certificate : A certificate signed by the
Chairman of the Board, the President, a Senior Vice President, a
Vice President or an Assistant Vice President and by the Treasurer,
the Secretary, an Assistant Treasurer or an Assistant Secretary of
the Depositor or the Trustee, as required by this Agreement.
Opinion of Counsel : A written opinion of counsel, who may
be counsel for the Depositor, which opinion is addressed to the
Trustee and is reasonably acceptable to the Trustee.
Original Class Current Principal Amount : The Original Class
FA Current Principal Amount.
Original Class FA Current Principal Amount : $75,000,000
Pass-Through Rate : With respect to any Distribution Date
and the Certificates, the sum of LIBOR and 0.45% per annum, with a
maximum rate of the applicable Available Funds Cap and a minimum
rate of 0.45%.
Percentage Interest : With respect to any Certificate, the
portion of the Certificates represented by such Certificate,
expressed as a percentage, the numerator of which is the initial
outstanding Current Principal Amount of such Certificate as of the
Closing Date, as specified on the face thereof, and the denominator
of which is the Original Current Principal Amount of all
Certificates.
Permitted Investments : Any one or more of the following
obligations or securities:
(i)
direct obligations of, or obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States;
(ii)
(A) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by or federal funds sold by any
depository institution or trust company (including the Trustee or
its agents acting in their respective commercial capacities)
incorporated under the laws of the United States of America or any
state thereof and subject to supervision and examination by federal
and/or state authorities, so long as, at the time of such
investment or contractual commitment providing for such investment,
such depository institution or trust company or its ultimate parent
has a short-term uninsured debt rating in one of the two highest
available rating categories of the Rating Agency and (B) any other
demand or time deposit or deposit which is fully insured by the
FDIC;
(iii)
repurchase obligations with respect to any security described in
clause (i) above and entered into with a depository institution or
trust company (acting as principal) rated A or higher by the Rating
Agency;
(iv)
securities bearing interest or sold at a discount that are issued
by any corporation incorporated under the laws of the United States
of America, the District of Columbia or any State thereof and that
are rated by the Rating Agency in its highest long term unsecured
rating categories at the time of such investment or contractual
commitment providing for such investment;
(v)
commercial paper (including both non interest bearing discount
obligations and interest bearing obligations) that is rated by the
Rating Agency in its highest short term unsecured debt rating
available at the time of such investment;
(vi)
units of money market funds (which may be 12b-1 funds, as
contemplated by the Commission under the Investment Company Act of
1940) registered under the Investment Company Act of 1940 including
funds managed or advised by the Trustee or an affiliate thereof
having the highest applicable rating from the Rating Agency;
and
(vii)
if previously confirmed in writing to the Trustee, any other
demand, money market or time deposit, or any other obligation,
security or investment, as may be acceptable to the Rating Agency
in writing as a permitted investment of funds backing securities
having ratings equivalent to its highest initial rating of the
Certificates;
provided, however, that no instrument described hereunder shall
evidence either the right to receive (a) only interest with respect
to the obligations underlying such instrument or (b) both principal
and interest payments derived from obligations underlying such
instrument and the interest and principal payments with respect to
such instrument provide a yield to maturity at par greater than
120% of the yield to maturity at par of the underlying
obligations.
Person : Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
Pooled Certificateholder : The Trustee or its Depository
Participant for the benefit of the Certificateholders.
Pooled Certificate Class Percentage : The percentage which
the Pooled Certificates constitute of their entire class as set
forth in Schedule A attached hereto under the caption “Class
% in Trust.”
Pooled Certificate Distribution Date : The Freddie Mac
Pooled Certificate Distribution Date.
Pooled Certificate Distribution Date Information : The
information provided or made available and updated monthly by
Freddie Mac in respect of the Pooled Certificates in connection
with each Pooled Certificate Distribution Date.
Pooled Certificates : The Pooled Freddie Mac Certificates
sold by the Depositor to, and registered in the name of, or held
for the benefit of, the Trustee pursuant to Section 2.01 and as
more particularly described in Schedule A hereto.
Pooled Freddie Mac Certificates : Freddie Mac Multiclass
Certificates, Series 3074, Class CF.
Purchase Agreement : The Purchase Agreement dated as of
November 28, 2005 between Bear, Stearns & Co., Inc. and the
Depositor relating to the Pooled Certificates.
Rating Agency : Dominion or its successors. If such agency
or its successors are no longer in existence, “ Rating
Agency ” shall be deemed to refer to such nationally
recognized statistical rating agency, or other comparable Person,
designated by the Depositor, notice of which designation shall be
given to the Trustee, and specific ratings of Dominion shall be
deemed to refer to the equivalent ratings of the party so
designated.
Record Date : For the Certificates and the first
Distribution Date, the Closing Date, and for any Distribution Date
thereafter, the last day of the month preceding the month in which
such Distribution Date occurs.
Repurchase Price : In connection with the repurchase of any
of the Pooled Certificates pursuant to Section 2.03(c), a price
equal to the outstanding principal balance thereof as of the date
of repurchase plus accrued interest thereon.
Responsible Officer : When used with respect to the Trustee,
any officer of the Trustee assigned to and working in its Corporate
Trust Office or similar group administering the Trusts hereunder
and also, with respect to a particular matter, any other officer of
the Trustee to whom a particular matter is referred by the Trustee
because of such officer’s knowledge of and familiarity with
the particular subject.
Securities Act : The Securities Act of 1933, as amended.
Trust : Structured Asset Mortgage Investments II Trust
2005-F3 created pursuant to this Agreement.
Trustee : U.S. Bank National Association, in its capacity as
trustee, or its successor in interest.
Trust Fund : The segregated pool of assets subject hereto,
constituting the corpus of the Trust created hereby and to be
administered hereunder, consisting of:
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(i) the
Pooled Certificates;
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(ii)
all amounts payable on the Pooled Certificates following the
Closing Date pursuant to the Underlying Agreement;
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(iii)
the Interest Rate Cap;
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(iv)
all amounts payable to the Trust under the Interest Rate Cap;
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(v) the
Certificate Account and such funds or assets as are from time to
time deposited in the Certificate Account;
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(vi)
the Depositor's rights under the Purchase Agreement; and
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(vii)
the income, payments and proceeds of each of the foregoing.
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Underlying Agreement : The agreement or agreements pursuant
to which the Pooled Certificates were issued, as in effect on the
Closing Date.
Underlying Series : The series of securities which includes
the Pooled Certificates.
ARTICLE II
CONVEYANCE OF THE
POOLED CERTIFICATES; ENTRY INTO INTEREST RATE CAP;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of the Pooled Certificates; Entry into
Interest Rate Cap .
(a)
The Depositor, concurrently with the execution and delivery hereof,
does hereby sell, transfer, assign, set-over and otherwise convey
to the Trustee, in trust, for the use and benefit of the
Certificateholders, without recourse, all the right, title and
interest of the Depositor in and to (i) the Pooled Certificates
(ii) the Purchase Agreement and (iii) all other assets constituting
the Trust Fund. Such assignment includes, without limitation, all
amounts payable on the Pooled Certificates pursuant to the
Underlying Agreement following the Closing Date.
(b) In
connection with such transfer and assignment, and concurrently with
its execution and delivery of this Agreement, the Depositor shall
have caused the Pooled Certificates to be registered in the
book-entry records of the Federal Reserve Banks in the name of the
Trustee or its nominee.
(c)
The transfer of the Pooled Certificates and all other assets
constituting the Trust Fund is absolute and is intended by the
parties hereto as a sale.
(d) It
is intended that the conveyances by the Depositor to the Trustee of
the Pooled Certificates as provided for in this Section 2.01 be
construed as a sale by the Depositor to the Trustee of the Pooled
Certificates for the benefit of the Certificateholders. Further, it
is not intended that any such conveyance be deemed to be a pledge
of the Pooled Certificates by the Depositor to the Trustee to
secure a debt or other obligation of the Depositor. However, in the
event that the Pooled Certificates are held to be property of the
Depositor, or if for any reason this Agreement is held or deemed to
create a security interest in the Pooled Certificates, then it is
intended that (a) this Agreement shall also be deemed to be a
security agreement within the meaning of Articles 8 and 9 of the
New York Uniform Commercial Code and the Uniform Commercial Code of
any other applicable jurisdiction; (b) the conveyance provided for
in Section 2.01 shall be deemed to be a grant by the Depositor to
the Trustee of a security interest in all of the Depositor's right
(including the power to convey title thereto), title and interest,
whether now owned or hereafter acquired, in and to (1) the Pooled
Certificates, (2) all amounts payable pursuant to the Pooled
Certificates in accordance with the terms thereof and (3) any and
all general intangibles consisting of, arising from or relating to
any of the foregoing, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities
or other property, including without limitation all amounts from
time to time held in the Certificate Account, whether in the form
of cash, instruments, securities or other property; (c) the
possession by the Trustee or any agent of the Trustee of such items
of property as constitute instruments, money, negotiable documents
or chattel paper shall be deemed to be "possession by the secured
party," or possession by a purchaser or a person designated by such
secured party, for purposes of perfecting the security interest
pursuant to the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction; and (d)
notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under
applicable law.
The
Depositor and the Trustee, at the Depositor’s or the Majority
Certificateholders’ direction, shall, to the extent
consistent with this Agreement, take such reasonable actions as may
be determined to be necessary to ensure that, if this Agreement
were deemed to create a security interest in the Pooled
Certificates, and the other property described above, such security
interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such
throughout the term of this Agreement.
(e)
The Trustee is hereby authorized to execute the Interest Rate Cap
on behalf of the Trust.
Section 2.02 Acceptance of Trust Fund by Trustee; Initial
Issuance of Certificates .
The
Trustee acknowledges receipt of the Underlying Agreement and the
receipt by it and the transfer, delivery and assignment to it of
the Pooled Certificates, in good faith and without notice of any
adverse claim, and the assignment to it of all other assets
included in the Trust Fund and declares that it holds and will hold
the Pooled Certificates and all other assets included in the Trust
Fund in trust for the exclusive use and benefit of all present and
future Certificateholders in accordance with the terms of this
Agreement. Concurrently with such transfer, delivery and assignment
and in exchange therefor, pursuant to the written request of the
Depositor executed by an officer of the Depositor, the Trustee has
executed and caused to be authenticated and delivered to or upon
the order of the Depositor, the Certificates in authorized
denominations evidencing the entire beneficial ownership of the
Trust Fund. The Trustee further acknowledges the execution by it as
Trustee of the Interest Rate Cap.
Until
the Trust Fund is terminated in accordance with Section 7.01,
except as provided herein, the Trustee shall not assign, sell,
dispose of or transfer any interest in the Pooled Certificates or
any other asset constituting the Trust Fund or permit the Pooled
Certificates or any other asset constituting the Trust Fund to be
subjected to any lien, claim or encumbrance arising by, through or
under the Trustee or any person claiming by, through or under the
Trustee.
Section 2.03 Representations and Warranties of the Depositor and
the Trustee .
(a)
The Depositor hereby represents and warrants to the Trustee and for
the benefit of the Certificateholders, as of the Closing Date,
that:
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(i)
The Depositor is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, and the
Depositor is possessed of all licenses necessary to carry on its
business.
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(ii)
The execution and delivery of this Agreement by the Depositor, and
the performance and compliance with the terms of this Agreement by
the Depositor, will not violate the Depositor's certificate of
incorporation or bylaws or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or
any of its assets.
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(iii)
The Depositor has the full right, power and authority to enter into
and consummate all transactions contemplated by this Agreement,
including but not limited to selling the Pooled Certificates to the
Trustee, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered
this Agreement.
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(iv)
This Agreement, assuming due authorization, execution and delivery
by the Trustee, constitutes a valid, legal and binding obligation
of the Depositor, enforceable against the Depositor in accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
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(v)
The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation is likely to affect
materially and adversely either the ability of the Depositor to
perform its obligations under this Agreement or the financial
condition of the Depositor.
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(vi)
No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor which, if determined
adversely to the Depositor, would prohibit the Depositor from
entering into this Agreement or is likely to materially and
adversely affect either the ability of the Depositor to perform its
obligations under this Agreement or the financial condition of the
Depositor.
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(vii)
The Depositor was, immediately prior to the transfer of the Pooled
Certificates to the Trustee, the sole owner thereof free and clear
of any lien, pledge, charge or encumbrance of any kind (except any
lien created by this Agreement).
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(viii)
The Depositor acquired the Pooled Certificates in good faith
without notice of any adverse claim, lien, charge, encumbrance or
security interest (including without limitation, federal tax liens
or liens arising under ERISA).
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(ix)
The Depositor has not assigned any interest in the Pooled
Certificates or any distributions thereon, except as contemplated
herein.
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(x)
The Trustee, in its capacity as a Pooled Certificateholder, will be
entitled to distributions under the Underlying Agreement equal to
all distributions of interest and principal made on the Pooled
Certificates.
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(xi)
The information relating to the Pooled Certificates set forth in
Schedule A is true and correct in all material respects.
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(xii)
The Pooled Certificates are registered on the books of the Federal
Reserve Banks in the name of the Trustee or its financial
intermediary on behalf of the Trustee.
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(xiii)
The Pooled Certificates are REMIC regular interests.
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(xiv)
The Depositor has no actual knowledge after reasonable inquiry that
(a) Freddie Mac was not duly created and is not validly existing
and (b) each Pooled Certificate (1) was not validly issued by
Freddie Mac and (2) is not outstanding, (3) is not the legal,
valid, binding and enforceable obligation of Freddie Mac and (4) is
not entitled to the benefits of the Underlying Agreement pursuant
to which such Pooled Certificate was issued (except as limited by
bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally or to the extent that
such enforceability may be subject to the exercise of judicial
discretion in accordance with general equitable principles).
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(b)
The Trustee hereby represents and warrants to the Depositor and for
the benefit of the Certificateholders, as of the Closing Date,
that:
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(i)
The Trustee is a national banking association, duly organized and
validly existing under the laws of the United States of
America.
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(ii)
The execution and delivery of this Agreement by the Trustee, and
the performance and compliance with the terms of this Agreement by
the Trustee, will not violate the Trustee's charter or bylaws or
constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it
is a party or which is applicable to it or any of its assets.
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(iii)
The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
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(iv)
This Agreement, assuming due authorization, execution and delivery
by the Depositor, constitutes a valid, legal and binding obligation
of the Trustee, enforceable against the Trustee in accordance with
the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement
of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
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(v)
The Trustee is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms
of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation is likely to affect materially and
adversely either the ability of the Trustee to perform its
obligations under this Agreement or the financial condition of the
Trustee.
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(vi)
No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the
Trustee from entering into this Agreement or is likely to
materially and adversely affect either the ability of the Trustee
to perform its obligations under this Agreement or the financial
condition of the Trustee.
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(vii)
The Pooled Certificates will be held in the Trustee's account at
the Federal Reserve Bank in Cleveland, Ohio; the information
relating to the Pooled Certificates set forth on Schedule A hereto
conforms to information set forth in the Freddie Mac Offering
Circular Supplement dated October 18, 2005 for the Pooled
Certificates; it has acquired the Pooled Certificates on behalf of
the Certificateholders from the Depositor in good faith, for value,
and, to the best of the Trustee's knowledge, without notice or
actual knowledge of any adverse claim, lien, charge, encumbrance or
security interest (including, without limitation, federal tax liens
or liens arising under ERISA); it has not and will not, in any
capacity except as trustee, on behalf of the Certificateholders,
assert any claim or interest in the Pooled Certificates and will
hold such Pooled Certificates and the proceeds thereof in trust
pursuant to the terms of this Agreement; and it has not encumbered
or transferred its right, title or interest in the Pooled
Certificates.
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(viii)
Pursuant to the authorization contained herein, the Trustee has
entered into the Interest Rate Cap on behalf of the
Certificateholders; and it has not and will not, in any capacity,
except as trustee on behalf of the Certificateholders, assert any
claim or interest in the Interest Rate Cap and will hold the
Interest Rate Cap and the proceeds thereof in trust pursuant to the
terms of this Agreement.
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(c) It
is understood and agreed that the foregoing representations and
warranties shall survive the execution and delivery of this
Agreement. Upon discovery by either party hereto of a breach of any
of the foregoing representations and warranties which materially
and adversely affects the interests of the Certificateholders or
either party hereto, the party discovering such breach will give
prompt written notice thereof to the other party hereto and to the
Certificateholders. Within thirty (30) days of the earlier of
either discovery by or notice to the Depositor of any breach of a
representation or warranty of the Depositor that materially and
adversely affects the interests of the Certificateholders, the
Depositor shall use its best efforts promptly to cure such breach
in all material respects and, if such breach cannot be cured, the
Depositor shall, at the election of the Majority
Certificateholders, repurchase each Pooled Certificate affected by
the breach at the Repurchase Price. If the Depositor is to
repurchase Pooled Certificates, the Trustee shall promptly
determine the Repurchase Price in accordance with the definition
thereof. Repurchase of any of the Pooled Certificates pursuant to
the foregoing provisions of this Section 2.03(c) shall be
accomplished by (i) deposit in the Certificate Account on the
Business Day prior to the next succeeding Distribution Date of the
amount of the Repurchase Price, (ii) amending the definition of
"Pooled Certificates" and (iii) amending Schedule A hereto to
remove such deleted Pooled Certificate.
ARTICLE III
ADMINISTRATION OF THE
POOLED CERTIFICATES;
PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01 Administration of the Trust Fund and the Pooled
Certificates .
If at
any time the Trustee, as a holder of the Pooled Certificates, is
requested in such capacity, whether by a Certificateholder, a
holder of a certificate of the Underlying Series or a party to the
related Underlying Agreement or any other Person, to take any
action or to give any consent, approval or waiver, including,
without limitation, in connection with an amendment of the
Underlying Agreement, the Trustee shall promptly notify all of the
Holders of Certificates and the Depositor of such request and of
its planned course of action with respect thereto and shall, in its
capacity as a holder of such Pooled Certificates, take such action
in connection with the exercise and/or enforcement of any rights
and/or remedies available to it in such capacity with respect to
such request, as the Majority Certificateholders of the
Certificates shall direct in writing. The Trustee shall promptly
furnish to the Depositor and, upon the written request of a
Certificateholder, such Certificateholder, all notices, statements,
reports or other information that it receives as holder of the
Pooled Certificates.
Section 3.02 Collection of Monies .
(a) In
connection with its receipt of any distribution on the Pooled
Certificates on any Pooled Certificate Distribution Date, the
Trustee shall review the related Pooled Certificate Distribution
Date Information and shall confirm that the aggregate amount of
such distribution received is consistent with the Pooled
Certificate Distribution Date Information (it being understood that
the Trustee shall be entitled to rely on the accuracy and
correctness of the Pooled Certificate Distribution Date
Information).
(b) If
the Trustee receives a Notice of Final Distribution in respect of
the Pooled Certificates, the Trustee shall present and surrender
any Pooled Certificates which are in certificated form for final
payment thereon, if required, in accordance with the terms and
conditions of the related Underlying Agreement and such notice. The
Trustee shall promptly deposit in the Certificate Account the final
distribution received upon presentation and surrender of such
Pooled Certificates for distribution in accordance with Section
3.05 hereof on the next succeeding Distribution Date for the
Certificates.
Section 3.03 Establishment of Certificate Account; Deposits
Therein .
(a)
The Trustee, for the benefit of the Certificateholders, shall
establish and maintain one or more interest bearing trust accounts
(collectively, the "Certificate Account"), each of which shall be
an Eligible Account, entitled "U.S. Bank National Association, as
trustee for the registered holders of Structured Asset Mortgage
Investments II Trust 2005-F3 Certificates, Series 2005-F3," held in
trust by the Trustee for the benefit of the Certificateholders. The
Trustee shall cause to be deposited directly into the Certificate
Account (i) all distributions received on the Pooled Certificates
and (ii) all distributions received on the Interest Rate Cap, in
each case by the Trustee in its capacity as holder of the Pooled
Certificates and the Interest Rate Cap, from whatever source, and
all amounts received by it representing payment of a Repurchase
Price pursuant to Section 2.03(c), subsequent to the Closing Date.
The Certificate Account is initially located at the Trustee. The
Trustee shall give notice to the Depositor and to
Certificateholders of any new location of the Certificate Account
prior to any change thereof.
(b) In
the event that payments in respect of the Pooled Certificates or
the Interest Rate Cap are received by the Trustee prior to the
related Distribution Date, the Trustee may invest such funds
deposited in the Certificate Account in one or more Permitted
Investments held in the name of the Trustee and shall receive as
compensation, any interest or investment income earned on such
Permitted Investments, which may be withdrawn by the Trustee on
each Distribution Date and shall not constitute Available Funds.
Notwithstanding the foregoing, no such Permitted Investment may
mature later than the day before such related Distribution Date and
no such investment shall be sold prior to its maturity date. The
amount of any losses incurred in respect of any such investments
shall be deposited in the Certificate Account by the Trustee out of
its own funds immediately as realized.
(c)
The Depositor shall cause all distributions received on the Pooled
Certificates by the Depositor or any of its Affiliates after the
Closing Date to be provided to the Trustee for deposit into the
Certificate Account.
Section 3.04 Permitted Withdrawals From the Certificate
Account .
The
Trustee may from time to time withdraw funds from the Certificate
Account for the following purposes:
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(i) to
make distributions in the amounts and in the manner provided for in
Section 3.05;
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(ii)
to pay to the Person entitled thereto any amount deposited in the
Certificate Account in error;
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(iii)
to pay any indemnification payments required pursuant to Section
5.05(b);
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(iv)
to clear and terminate the Certificate Account upon the termination
of this Agreement; and
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(v) to
pay itself, as additional compensation, the net reinvestment income
permitted to be paid to it as provided in Section 3.03(b).
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On each
Distribution Date, the Trustee shall withdraw all funds from the
Certificate Account and shall use such funds withdrawn from the
Certificate Account only for the purposes described in this Section
3.04 and in Section 3.05.
Section 3.05 Distributions .
(a) On
each Distribution Date, the Trustee shall apply amounts in the
Certificate Account representing Available Funds in the following
manner and order of priority:
(b)
Interest Payments: from amounts with respect to interest received
on the Pooled Certificates and the Interest Rate Cap, if any: to
the Holders of the Class FA Certificates as a distribution of
interest, the Interest Distribution Amount for the Class FA
Certificates for such Distribution Date.
(c)
Principal Payments: from amounts with respect to principal received
on the Pooled Certificates, if any, to the Holders of the Class FA
Certificates as distributions of principal, until the Current
Principal Amount of the Class FA Certificates has been reduced to
zero.
If the
Trustee has not received a distribution on the Pooled Certificates
by the Determination Time, the distribution allocable to such
Pooled Certificates will not be made on the applicable Distribution
Date, but, if such distribution is received by 1:00 P.M., Eastern
Standard Time, on a subsequent Business Day, the Trustee will make
the distribution on that Business Day or if received after 1:00
P.M., Eastern Standard Time, on a Business Day, the Trustee will
make the distribution on the next succeeding Business Date, and in
neither case will additional interest be paid thereon.
(d)
All distributions made to Holders of the Certificates pursuant to
Section 3.05(a) on each Distribution Date shall be allocated pro
rata among the outstanding Certificates based upon their respective
Percentage Interests and, except in the case of the final
distribution to the Holders of the Certificates, shall be made to
the Holders of record on the related Record Date. Distributions to
any Certificateholder on any Distribution Date shall be made by
wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing (which wiring instructions may be
in the form of a standing order applicable to all future
Distribution Dates) no less than five Business Days prior to the
related Record Date (or, in the case of the initial Distribution
Date, no later than the related Record Date) and is the registered
owner of Certificates with an aggregate initial Current Principal
Amount of not less than $1,000,000, or otherwise by check mailed by
first class mail to the address of such Certificateholder appearing
in the Certificate Register. Final distribution to each
Certificateholder will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate
Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
(e)
Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or the accrual of
original issue discount that the Trustee reasonably believes are
applicable under the Code. The consent of Certificateholders shall
not be required for such withholding. In the event the Trustee does
withhold any amount from payments to any Certificateholder pursuant
to federal withholding requirements, the Trustee shall indicate the
amount withheld to such Certificateholders.
(f)
The Trustee may conclusively rely on the information set forth in
each applicable Pooled Certificate Distribution Date Information in
making the calculations called for in this Section 3.05, including,
without limitation, the determinations of Pass-Through Rates, the
Interest Distribution Amount and Available Funds. If the
information available to the Trustee in any Pooled Certificate
Distribution Date Information is insufficient to make the
calculations provided for in this Section 3.05, the Trustee shall
promptly request Freddie Mac to provide sufficient information in
writing, and after receipt of such information the Trustee shall
make on the following Distribution Date any necessary adjustments
in the application of amounts in the Certificate Account. If such
information is not received from Freddie Mac, the Trustee shall not
be responsible for making any such adjustment.
Section 3.06 Statements to Certificateholders; Information to
Cap Counterparty; R
