Exhibit 4.2


 


Execution Copy


 


 


AMENDED AND RESTATED TRUST AGREEMENT


 


 


among


 


 


FIELDSTONE MORTGAGE INVESTMENT CORPORATION,

as Depositor,


 


 


U.S. BANK TRUST NATIONAL ASSOCIATION,

as Owner Trustee


 


 


and


 


 


WELLS FARGO BANK, N.A.,

as Trust Administrator


 


 


Dated as of August 4, 2005


 


 


Fieldstone Mortgage Investment Trust, Series 2005-2

Mortgage-Backed Notes


 





















 


TABLE OF CONTENTS


 


	
   

  	
  ARTICLE I

  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
   

  
	
  Section 1.02.

  	
  Other
  Definitional Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE II

  ORGANIZATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Name

  	
   

  
	
  Section 2.02.

  	
  Office

  	
   

  
	
  Section 2.03.

  	
  Purpose and
  Powers

  	
   

  
	
  Section 2.04.

  	
  Appointment of
  the Owner Trustee

  	
   

  
	
  Section 2.05.

  	
  Initial Capital
  Contribution; Declaration of Trust

  	
   

  
	
  Section 2.06.

  	
  Issuance of
  Initial Certificates

  	
   

  
	
  Section 2.07.

  	
  Liability of the
  Ownership Certificate Holder

  	
   

  
	
  Section 2.08.

  	
  Situs of Trust

  	
   

  
	
  Section 2.09.

  	
  Title to Trust
  Property

  	
   

  
	
  Section 2.10.

  	
  Representations
  and Warranties of the Depositor

  	
   

  
	
  Section 2.11.

  	
  Tax Treatment

  	
   

  
	
  Section 2.12.

  	
  Investment
  Company

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE III

  THE CERTIFICATES AND TRANSFERS OF INTERESTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  The Certificates

  	
   

  
	
  Section 3.02.

  	
  Execution,
  Authentication and Delivery of the Certificates

  	
   

  
	
  Section 3.03.

  	
  Registration of
  and Limitations on Transfers and Exchanges of the Certificates

  	
   

  
	
  Section 3.04.

  	
  Lost, Stolen,
  Mutilated or Destroyed Certificate

  	
   

  
	
  Section 3.05.

  	
  Persons Deemed
  Certificateholders

  	
   

  
	
  Section 3.06.

  	
  Access to List of
  Certificateholders’ Names and Addresses

  	
   

  
	
  Section 3.07.

  	
  [Reserved]

  	
   

  
	
  Section 3.08.

  	
  Maintenance of
  Office or Agency

  	
   

  
	
  Section 3.09.

  	
  Certificate
  Paying Agent

  	
   

  
	
  Section 3.10.

  	
  Initial
  Beneficiary

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IV

  APPLICATION OF TRUST FUNDS; CERTAIN DUTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Collection
  Account

  	
   

  
	
  Section 4.02.

  	
  Application of
  Trust Funds

  	
   

  
	
  Section 4.03.

  	
  Method of Payment

  	
   

  
	
  Section 4.04.

  	
  [Reserved]

  	
   

  
	
  Section 4.05.

  	
  Segregation of Moneys;
  No Interest

  	
   

  
				



 


i





















 


	
   

  	
  ARTICLE V

  AUTHORITY AND DUTIES OF THE OWNER TRUSTEE; ACTION BY

  CERTIFICATEHOLDERS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  General Authority

  	
   

  
	
  Section 5.02.

  	
  General Duties

  	
   

  
	
  Section 5.03.

  	
  Action Upon
  Instruction

  	
   

  
	
  Section 5.04.

  	
  No Duties Except
  as Specified under Specified Documents or in Instructions

  	
   

  
	
  Section 5.05.

  	
  Restrictions

  	
   

  
	
  Section 5.06.

  	
  Prior Notice to
  the Certificateholders with Respect to Certain Matters

  	
   

  
	
  Section 5.07.

  	
  Action by the
  Holder with Respect to Bankruptcy

  	
   

  
	
  Section 5.08.

  	
  Restrictions on
  the Ownership Certificate Holder’s Power

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VI

  CONCERNING THE OWNER TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Acceptance of
  Trusts and Duties

  	
   

  
	
  Section 6.02.

  	
  Furnishing of
  Documents

  	
   

  
	
  Section 6.03.

  	
  Books and Records

  	
   

  
	
  Section 6.04.

  	
  Representations
  and Warranties

  	
   

  
	
  Section 6.05.

  	
  Reliance; Advice
  of Counsel

  	
   

  
	
  Section 6.06.

  	
  Not Acting in
  Individual Capacity

  	
   

  
	
  Section 6.07.

  	
  Owner Trustee Not
  Liable for Certificates or Collateral

  	
   

  
	
  Section 6.08.

  	
  Owner Trustee May Own
  Notes

  	
   

  
	
  Section 6.09.

  	
  Licenses

  	
   

  
	
  Section 6.10.

  	
  Doing Business in
  Other Jurisdictions

  	
   

  
	
  Section 6.11.

  	
  Sarbanes-Oxley
  Act Certification

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VII

  INDEMNIFICATION AND COMPENSATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Trust Expenses

  	
   

  
	
  Section 7.02.

  	
  Indemnification

  	
   

  
	
  Section 7.03.

  	
  Compensation

  	
   

  
	
  Section 7.04.

  	
  Lien on Trust
  Estate

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VIII

  TERMINATION OF AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Termination of
  Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IX

  SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Eligibility
  Requirements for Owner Trustee

  	
   

  
	
  Section 9.02.

  	
  Resignation or
  Removal of Owner Trustee

  	
   

  
	
  Section 9.03.

  	
  Successor Owner
  Trustee

  	
   

  
	
  Section 9.04.

  	
  Merger or
  Consolidation of Owner Trustee

  	
   

  
				



 


ii





















 


	
  Section 9.05.

  	
  Appointment of
  Co-Trustee or Separate Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE X

  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Supplements and
  Amendments

  	
   

  
	
  Section 10.02.

  	
  No Legal Title to
  Trust Estate in Certificateholders

  	
   

  
	
  Section 10.03.

  	
  Pledge of
  Collateral by Owner Trustee is Binding

  	
   

  
	
  Section 10.04.

  	
  Limitations on
  Rights of Others

  	
   

  
	
  Section 10.05.

  	
  Notices

  	
   

  
	
  Section 10.06.

  	
  Severability

  	
   

  
	
  Section 10.07.

  	
  Separate
  Counterparts

  	
   

  
	
  Section 10.08.

  	
  Successors and
  Assigns

  	
   

  
	
  Section 10.09.

  	
  Headings

  	
   

  
	
  Section 10.10.

  	
  Governing Law

  	
   

  
	
  Section 10.11.

  	
  No Petition

  	
   

  
	
  Section 10.12.

  	
  No Recourse

  	
   

  
	
  Section 10.13.

  	
  Customer
  Identification

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE XI

  OFFICERS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Appointment of
  Officers

  	
   

  
	
  Section 11.02.

  	
  Officers to
  Provide Information to the Owner Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Forms of Certificates

  	
   

  
	
  Exhibit B

  	
  [Reserved]

  	
   

  
	
  Exhibit C

  	
  Form of Certificate of Trust

  	
   

  
	
  Exhibit D-1

  	
  Form of Rule 144A Investment Letter

  	
   

  
	
  Exhibit D-2

  	
  Form of Non-Rule 144A Investment Letter

  	
   

  
	
  Exhibit E

  	
  Form of Certificate of Beneficial Owner

  	
   

  
	
  Exhibit F

  	
  Form of Representation and Warranty Regarding Transferee’s
  Status as a REIT or Qualified REIT Subsidiary

  	
   

  
				



 


iii





















 


This TRUST AGREEMENT, dated as of August 4, 2005,
is by and among FIELDSTONE MORTGAGE INVESTMENT CORPORATION, a Maryland
corporation (the “Depositor”), U.S. BANK TRUST NATIONAL ASSOCIATION, a national
banking association, as Owner Trustee (the “Owner Trustee”), and WELLS FARGO
BANK, N.A., a national banking association, as Trust Administrator (the “Trust
Administrator”).


 


WHEREAS, pursuant to the Transfer and Servicing
Agreement, the Depositor intends to sell, transfer and assign to a Delaware
statutory trust created hereunder certain Mortgage Loans and related assets
(collectively, the “Collateral”), which statutory trust would then pledge such
Collateral under an indenture in order to secure the issuance of its
Mortgage-Backed Notes, Series 2005-2 (the “Securities”) and its
obligations under the Swap Agreement, the net proceeds of which would be
applied toward the purchase of the Collateral.


 


WHEREAS, the Depositor and the Owner Trustee entered
into a Trust Agreement dated July 26, 2005 (the “Original Trust Agreement”),
and filed with the Secretary of State of the State of Delaware a Certificate of
Trust on July 26, 2005, creating Fieldstone Mortgage Investment Trust, Series 2005-2
(the “Trust”).


 


WHEREAS, the Depositor, the Owner Trustee and the
Trust Administrator desire to enter into this Amended and Restated Trust
Agreement in order to amend and restate in its entirety the Original Trust
Agreement and to provide for the operation of the Trust upon the terms and
conditions more particularly set forth herein.


 


NOW THEREFORE, in consideration of the premises and
mutual agreements herein contained, the parties hereto hereby agree as follows:


 


ARTICLE I

DEFINITIONS


 


Section 1.01.                             Definitions.  For all purposes of this Agreement, the
following terms shall have the meanings set forth below.


 


Actual Knowledge:  With respect to (i) the Owner Trustee,
any officer within the Corporate Trust Office of the Owner Trustee responsible
for administering the Trust hereunder, or under the Operative Agreements, who
has actual knowledge of an action taken or an action not taken with regard to
the Trust.  Actions taken or actions not
taken of which the Owner Trustee should have had knowledge, or has constructive
knowledge, do not meet the definition of Actual Knowledge hereunder.  With respect to the Trust Administrator, any
Responsible Officer of the Trust Administrator who has actual knowledge of an
action taken or an action not taken with regard to the Trust.  Actions taken or actions not taken of which
the Trust Administrator should have had knowledge, or has constructive
knowledge, do not meet the definition of Actual Knowledge hereunder.


 


Agreement or Trust Agreement:  This Amended and Restated Trust Agreement and
any amendments or modifications hereof.


 


Authorized Officer:  With respect to the Trust, any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Trust and who is identified on


 





















 


the list of Authorized
Officers delivered by the Owner Trustee to the Indenture Trustee on the Closing
Date (as such list may be modified or supplemented from time to time
thereafter) and, so long as the Transfer and Servicing Agreement is in effect,
any Vice President, Assistant Vice President, Trust Officer, or more senior
officer of the Trust Administrator who is authorized to act for the Trust
Administrator in matters relating to the Trust and to be acted upon by the
Trust Administrator pursuant to the Transfer and Servicing Agreement and who is
identified on the list of Authorized Officers delivered by the Trust
Administrator to the Indenture Trustee on the Closing Date (as such list may be
modified or supplemented from time to time thereafter).


 


Bank:  U.S. Bank Trust National Association, in its
individual capacity and not as Owner Trustee under this Agreement.


 


Certificate:  Any Ownership Certificate issued pursuant to
this Agreement.


 


Certificate of Trust:  The Certificate of Trust to be filed by the
Owner Trustee for the Trust pursuant to Section 3810(a) of the
Delaware Trust Statute in the form of Exhibit C hereto.


 


Certificate Paying Agent:  Initially, the Trust Administrator, in its
capacity as Certificate Paying Agent, or any successor to the Trust
Administrator in such capacity.


 


Certificate Register:  The register maintained by the Certificate
Registrar in which the Certificate Registrar shall provide for the registration
of the Certificates and of transfers and exchanges of such Certificates.


 


Certificate Registrar:   Initially, the Trust Administrator, in its
capacity as Certificate Registrar, or any successor to the Trust Administrator
in such capacity.


 


Certificateholder or Holder:  The Person in whose name a Certificate is
registered in the Certificate Register.


 


Code:  The Internal Revenue Code of 1986, as
amended.


 


Collateral:  As defined in the Indenture.


 


Corporate Trust Office:  With respect to (i) the Owner Trustee,
the corporate trust administration office of the Owner Trustee located at U.S.
Bank Corporate Trust Services, 60 Livingston Avenue, St. Paul, Minnesota 55107,
or at such other address as the Owner Trustee may designate by notice to the
Trust Administrator, or the principal office of any successor Owner Trustee
(the address (which shall be in the State of Delaware) of which the successor
owner trustee will notify the Certificateholders); (ii) the Trust
Administrator, the principal corporate trust office of the Trust Administrator
at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof for purposes of transfers and
exchanges and for presentment and surrender of the Certificates and for payment
thereof is located at Wells Fargo Bank, N.A., Sixth Street and Marquette
Avenue, Minneapolis, Minnesota 55479, Attention:  Corporate Trust Group (Fieldstone 2005-2),
and for all other purposes is located at Wells Fargo Bank, N.A., P.O. Box
98, Columbia, Maryland 21046, Attention: 
Corporate Trust Group (Fieldstone 2005-2) (or for overnight deliveries,
at 9062 Old Annapolis Road, Columbia, Maryland 21045, Attention:  Corporate Trust Group (Fieldstone 2005-2));
and


 


2





















 


(iii) the
Certificate Registrar, the principal office of the Certificate Registrar at
which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Agreement is
located at the Corporate Trust Office of the Trust Administrator, or at such
other address as the Certificate Registrar may designate from time to time by
notice to the Securityholders and the Trust, or the principal corporate trust
office of any successor Certificate Registrar at the address designated by such
successor Certificate Registrar by notice to the Securityholders and the Trust.


 


Delaware Trust Statute:  Chapter 38 of Title 12 of the Delaware Code,
12 Del.C. Section 3801 et seq., as the
same may be amended from time to time.


 


Depositor:  Fieldstone Mortgage Investment Corporation, a
Maryland corporation.


 


ERISA:  The Employee Retirement Income Security Act
of 1974, as amended.


 


Expenses:  The meaning specified in Section 7.02.


 


Indenture:  The indenture dated as of July 1, 2005,
between the Issuer and the Indenture Trustee, as such may be amended or
supplemented from time to time.


 


Indenture Trustee:  HSBC Bank USA, National Association, not in
its individual capacity but solely as Indenture Trustee, or any successor in
interest.


 


Initial Holder:  Fieldstone Mortgage Ownership Corp., or any
successor in interest, in the case of the Ownership Certificate.


 


Master Servicer:  Wells Fargo Bank, N.A., or any successor in
interest.


 


Net Proceeds from the Notes:  The proceeds received by the Trust from time
to time from the issuance and sale of its Notes, less the costs and expenses
incurred in connection with the issuance and sale of such Notes.


 


Non-U.S. Person:  Any person other than a “United States person”
as defined in Section 7701(a)(30) of the Code.


 


Note:  Any of the Class 1-A1, Class 1-A2, Class 2-A1,
Class 2-A2, Class 2-A3, Class A-IO, Class M1, Class M2,
Class M3, Class M4, Class M5, Class M6, Class M7, Class M8,
Class M9 or Class M10 Notes issued pursuant to the Indenture.


 


Noteholder:  A Person in whose name a Note is registered
on the Note Register.


 


Officer:  Those officers of the Trust referred to in Article XI.


 


Opinion of Counsel:  One or more written opinions of counsel who
may, except as otherwise expressly provided in this Agreement, be employees of
or counsel to the Depositor and who shall be satisfactory to the Owner Trustee
and the Trust Administrator, which opinion shall be addressed to the Owner
Trustee, the Trust Administrator and each Swap Counterparty.


 


3





















 


Original Trust Agreement:  As defined in the recitals hereof.


 


Ownership Certificate:  An equity certificate representing a 100%
undivided beneficial interest in the Trust in substantially the form annexed
hereto as part of Exhibit A.


 


Owner Trustee:  U.S. Bank Trust National Association, a
national banking association, and any successor in interest, not in its
individual capacity, but solely as owner trustee under the Trust Agreement.


 


Percentage Interest:  With respect to any Ownership Certificate,
the percentage set forth on the face thereof.


 


Proposer:  The Certificateholder making a written
request pursuant to Section 5.07.


 


Prospective Holder:  Each prospective purchaser and any subsequent
transferee of the Ownership Certificate.


 


Qualified REIT Subsidiary:  A direct or indirect 100% owned subsidiary of
a REIT that satisfies the requirements of Section 856(i) of the Code.


 


REIT:  A real estate investment trust within the
meaning of Sections 856 and 857 of the Code.


 


Responsible Officer:  With respect to (i) the Owner Trustee,
any officer within the Corporate Trust Office of the Owner Trustee with direct
responsibility for the administration of the Trust and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer’s knowledge of, and familiarity with, the particular subject; and (ii) the
Trust Administrator, any officer within the Corporate Trust Office of the Trust
Administrator with direct responsibility for the administration of the Trust
and also, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer’s knowledge of, and familiarity
with, the particular subject.


 


Secretary of State:  The Secretary of State of the State of
Delaware.


 


Security:  Any of the Certificates or Notes.


 


Securityholder:  Any Certificateholder or Noteholder.


 


Seller:  Fieldstone Investment Corporation, a Maryland
corporation.


 


Transfer and Servicing Agreement:  The Transfer and Servicing Agreement dated as
of July 1, 2005, by and among the Trust, the Depositor, the Trust
Administrator, the Master Servicer, Fieldstone Servicing Corp., as servicer,
JPMorgan Chase Bank, National Association, as subservicer, the Seller and the
Indenture Trustee, as such may be amended or supplemented from time to time.


 


Trust:  The trust established pursuant to this
Agreement which shall carry on its business operations under the name of “Fieldstone
Mortgage Investment Trust, Series 2005-2.”


 


4





















 


Trust Administrator:  Wells Fargo Bank, N.A., or any successor in
interest.


 


Section 1.02.                             Other
Definitional Provisions.


 


Capitalized terms used herein and not defined herein shall
have the same meanings assigned to them in the Transfer and Servicing Agreement
or in the Indenture, as applicable.


 


(a)                                  All
terms defined in this 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 Agreement and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this 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 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 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 Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; and the term “including” shall mean “including
without limitation.”


 


(d)                                 The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as the feminine
and neuter genders of such terms.


 


(e)                                  Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to
a Person are also to its permitted successors and assigns.


 


ARTICLE II

ORGANIZATION


 


Section 2.01.                             Name.  The trust established under this Agreement
shall be referred to as “Fieldstone Mortgage Investment Trust, Series 2005-2,”
in which name the Owner Trustee and the Officers may conduct the activities
contemplated hereby, including the making and executing of contracts and other
instruments on behalf of the Trust and sue and be sued.


 


Section 2.02.                             Office.  The principal office of the Trust shall be in
care of the Owner Trustee, at its Corporate Trust Office.  The Trust shall also have an office in care
of the Trust Administrator at its Corporate Trust Office.


 


5





















 


Section 2.03.                             Purpose
and Powers.  The Trust shall have the
power and authority to engage in any of the following activities:


 


(a)                                  to
issue the Notes pursuant to the Indenture and the Certificates pursuant to this
Agreement and to sell, transfer and exchange such Notes and Certificates;


 


(b)                                 with
the proceeds of the sale of the Notes and the Certificates, to pay the
organizational, start-up and transactional expenses of the Trust and to pay the
balance of the Net Proceeds from the Notes to the Depositor in consideration of
the transfer to the Trust of the Collateral;


 


(c)                                  to
assign, grant, transfer, pledge, mortgage and convey the Trust Estate pursuant
to the Indenture and to hold, manage and distribute to the Certificateholders
pursuant to the terms of the Transfer and Servicing Agreement any portion of
the Collateral released from the lien of, and remitted to the Trust pursuant
to, the Indenture;


 


(d)                                 to
enter into and perform its obligations under the Operative Agreements and the
Swap Agreement to which it is to be a party;


 


(e)                                  to
engage in those activities, including entering into agreements, that are
necessary, suitable or convenient to accomplish the foregoing or are incidental
thereto or connected therewith; and


 


(f)                                    subject
to compliance with the Operative Agreements, to engage in such other activities
as may be required in connection with conservation of the Trust Estate and the
making of distributions and payments 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 Agreement or the Operative
Agreements.


 


Section 2.04.                             Appointment
of the Owner Trustee.  The Depositor
hereby appoints the Bank to act as owner trustee (the “Owner Trustee”) of the
Trust effective as of the date hereof to have all the rights, powers and duties
set forth herein with respect to accomplishing the purposes of the Trust.


 


The Owner Trustee is hereby authorized to execute this
Agreement, the Indenture, the Transfer and Servicing Agreement and any other
Operative Agreement on behalf of the Trust. 
The Owner Trustee is hereby authorized to take all actions required or
permitted to be taken by it in accordance with the terms of this Agreement.


 


Section 2.05.                             Initial
Capital Contribution; Declaration of Trust.


 


(a)                                  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 Closing Date, of the foregoing contribution, which shall
constitute the initial corpus of the Trust Estate.  The Depositor shall pay organizational
expenses of the


 


6





















 


Trust as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the
Owner Trustee.


 


(b)                                 The
Owner Trustee hereby declares that it will hold the 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 Operative
Agreements.  It is the intention of the
parties hereto that the Trust constitute a statutory trust under the Delaware
Trust Statute and that this Agreement constitute the governing instrument of
such statutory trust.  No later than the
Closing Date, the Owner Trustee shall cause the filing of the Certificate of
Trust with the Secretary of State. 
Except as otherwise provided in this Agreement, the rights of the
Certificateholders will be those of beneficial owners of the Trust.


 


Section 2.06.                             Issuance
of Initial Certificates.  Upon the
formation of the Trust by the initial contribution by the Depositor pursuant to
Section 2.05, the Owner Trustee will issue the Certificates to the Initial
Holders.


 


Section 2.07.                             Liability
of the Ownership Certificate Holder. 
The Ownership Certificate Holder shall be liable directly to and shall
indemnify any injured party for all losses, claims, damages, liabilities and
expenses of the Trust (including Expenses, to the extent not paid out of the
Trust Estate); provided, however, that the Ownership Certificate
Holder shall not be liable for payments required to be made to or for any
losses incurred by a Noteholder in the capacity of an investor in the
Notes.  In addition, any third party
creditors of the Trust (other than in connection with the obligations described
in the following sentence for which the Ownership Certificate Holder shall be
liable) shall be deemed third party beneficiaries of this paragraph.  The Ownership Certificate Holder shall be
liable for any entity level taxes imposed on the Trust.  The obligations of the Ownership Certificate Holder
under this paragraph shall be evidenced by the Ownership Certificate.


 


Section 2.08.                             Situs
of Trust.  The Trust will be located
in the State of Delaware.  All bank
accounts maintained by the Owner Trustee on behalf of the Trust shall be
located in the States of Delaware, New York or the jurisdiction where the Trust
Administrator maintains bank accounts with respect to collections on the
Collateral.  The only office of the Trust
will be as described in Section 2.02 hereof.  The Trust shall not have any employees; provided, however,
that nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware.  Payments will be received by the Trust only
in Delaware, New York, the jurisdiction in which the Trust Administrator
maintains the Collection Account or such other jurisdiction designated by the
Depositor, and payments will be made by the Trust only from the Collection
Account or from Delaware, New York or such other jurisdiction designated by the
Depositor.


 


Section 2.09.                             Title
to Trust Property.


 


(a)                                  Subject
to the Indenture, title to all of the Trust Estate shall be vested at all times
in the Trust as a separate legal entity until this Agreement terminates
pursuant to Article VIII hereof; provided,
however, that if the laws of any
jurisdiction require that title to any part of the Trust Estate be vested in
the trustee of the Trust, then title to that part of the Trust Estate shall be


 


7





















 


deemed to be vested in the Owner Trustee or any co-trustee or separate
trustee, as the case may be, appointed pursuant to Article IX of this
Agreement.


 


(b)                                 The
Certificateholders shall have beneficial but not legal title to any part of the
Trust Estate.  No transfer by operation
of law or otherwise of any interest of the Certificateholders shall operate to
terminate this Agreement or the trusts created hereunder or entitle any
transferee to an accounting or to the transfer to it of any part of the Trust
Estate.


 


Section 2.10.                             Representations
and Warranties of the Depositor.  The
Depositor hereby represents and warrants to the Owner Trustee, the Swap
Counterparty and the Trust Administrator as of the Closing Date, as follows:


 


(a)                                  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 and had at all relevant times,
and now has, power, authority and the legal right to acquire and own the
Mortgage Loans.


 


(b)                                 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 property or the conduct of its
business shall require such qualifications.


 


(c)                                  The
Depositor has the power and authority to execute and deliver any Operative
Agreement to which it is a party and to carry out its terms; the Depositor has
full power and authority to sell and assign the Collateral to be sold and
assigned to and deposited with the Trust and the Depositor has duly authorized
such assignment and deposit to the Trust by all necessary corporate action; and
the execution, delivery and performance of this Agreement or any other
Operative Agreement to which it is a party has been duly authorized by the
Depositor by all necessary corporate action and, assuming the due
authorization, execution and delivery of each such agreement by the other
parties thereto, each such agreement constitutes a valid and binding obligation
of the Depositor, enforceable against the Depositor in accordance with its
terms, except as enforcement thereof may be subject to or limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
relating to or affecting creditors’ rights generally and by general equitable
principles.


 


(d)                                 The
consummation of the transactions contemplated by this Agreement and the fulfillment
of the terms hereof and thereof 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 certificate 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
Operative Agreements); 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.


 


8





















 


(e)                                  There
are no proceedings or investigations, pending or, to the best knowledge of the
Depositor, threatened before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Depositor or
its properties:  (i) asserting the
invalidity of this Agreement or any other Operative Agreement to which the
Depositor is a party, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or any other Operative
Agreement to which the Depositor is a party or (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement or any other Operative Agreement to which the
Depositor is a party.


 


(f)                                    The
representations and warranties of the Depositor made pursuant to the Transfer
and Servicing Agreement are true and correct.


 


(g)                                 This
Agreement is not required to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust is not required to be registered as an “investment
company” under the Investment Company Act of 1940, as amended.


 


Section 2.11.                             Tax
Treatment.  The Depositor, the Owner
Trustee and the Initial Holder intend that the Trust be treated for federal
income tax purposes as a Qualified REIT Subsidiary and agree to take no action
inconsistent with such treatment.  The
Trust Administrator will perform the calculation of accrual of original issue
discount and the amortization of premium on the Securities.  The Seller will prepare and file the Trust’s
income tax returns and will make any other necessary tax filings under the
Code.


 


Section 2.12.                             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 of 1940, as amended.


 


ARTICLE III

THE CERTIFICATES AND TRANSFERS OF INTERESTS


 


Section 3.01.                             The
Certificates.  The Ownership
Certificate shall initially be issued as a single certificate in definitive,
fully registered form and shall initially be registered in the name of the
applicable Initial Holder.  No Ownership
Certificate shall be issued in authorized denominations of less than a 100%
Percentage Interest in such Certificate. 
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 3.02.  Each Certificate bearing the manual
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 Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of each such Certificate or did not hold such
offices at the date of authentication and delivery of each such
Certificate.  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 3.03.


 


9





















 


Section 3.02.                             Execution,
Authentication and Delivery of the Certificates.  Concurrently with the sale of the Collateral
to the Trust pursuant to the Transfer and Servicing Agreement, the Owner
Trustee shall cause the Certificates issued hereunder to be executed and
authenticated on behalf of the Trust and 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.  No Certificate shall entitle
its Holder to any benefit under this Agreement or be valid for any purpose
unless there shall appear on such Certificate a certificate of authentication
substantially in the form set forth as part of Exhibit A hereto, executed
by the Owner Trustee or the Certificate Registrar, as the Owner Trustee’s
authenticating agent, by manual signature; such authentication shall constitute
conclusive evidence that such Certificate shall have been duly authenticated
and delivered hereunder.  All
Certificates shall be dated the date of their authentication.


 


Section 3.03.                             Registration
of and Limitations on Transfers and Exchanges of the Certificates.  The Certificate Registrar shall keep or cause
to be kept, at the office or agency maintained pursuant to Section 3.08, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Certificate Registrar shall provide for the registration of the
Certificates and of transfers and exchanges of the Certificates as set forth
herein; provided, however, that no Ownership Certificate
shall be issued in any such transfer and exchange representing less than a 100%
Percentage Interest in such Certificate, and provided,
further, that no Ownership
Certificate shall be issued in any such transfer and exchange except in
accordance with the provisions and conditions set forth below in this Section 3.03.  The Trust Administrator shall be the initial
Certificate Registrar.  If the
Certificate Registrar resigns or is removed, the Owner Trustee, with the
consent of the Depositor, shall appoint a successor Certificate Registrar.


 


Subject to satisfaction of the conditions set forth
below, upon surrender for registration of transfer of a Certificate at the
office or agency maintained pursuant to Section 3.08, the Owner Trustee
shall execute, authenticate and deliver (or cause the Trust Administrator as
its authenticating agent to authenticate and deliver), in the name of the
designated transferee, a new Certificate evidencing the Percentage Interest of
the Certificate so surrendered and dated the date of authentication by the
Owner Trustee or the Certificate Registrar.


 


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 Owner Trustee and the
Certificate Registrar duly executed by each Certificateholder or such
Certificateholder’s attorney duly authorized in writing.  Each Certificate surrendered for registration
of transfer or exchange shall be cancelled and subsequently disposed of by the
Certificate Registrar in accordance with its customary practice.


 


No service charge shall be made for any registration
of transfer or exchange of a Certificate, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any transfer or
exchange of a Certificate or any other expense arising as a result of any
registration of transfer or exchange.


 


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The preceding provisions of this Section notwithstanding,
the Owner Trustee shall not make and the Certificate Registrar shall not
register transfer or exchanges of a Certificate for a period of 15 days
preceding the due date for any payment with respect to such Certificate.


 


No transfer of a Certificate shall be made unless such
transfer is exempt from the registration requirements of the Securities Act and
any applicable state securities laws or is made in accordance with said Act and
laws.  Except in the case of an initial
transfer to an Initial Holder, in the event of any such transfer, the
Certificate Registrar or the Depositor shall prior to such transfer require the
transferee to execute (i) an investment letter (in the form attached
hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee, the
Trust Administrator, the Certificate Registrar and the Depositor that such
transferee is a “qualified institutional buyer” under Rule 144A under the
Securities Act, or (ii) an investment letter (in the form attached hereto
as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust
Administrator, the Certificate Registrar and the Depositor that such transferee
is an “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of the Securities Act), and any expense associated with the
preparation and execution of any such investment letter shall not be an expense
of the Trust, the Owner Trustee, the Trust Administrator, the Certificate
Registrar or the Depositor.  A
Certificateholder desiring to effect the transfer of a Certificate shall, and
does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust
Administrator, the Certificate Registrar and the Depositor against any and all
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.


 


Except in the case of an initial transfer to an
Initial Holder, no transfer of a Certificate shall be made unless the
Certificate Registrar shall have received a representation letter (in the form
attached hereto as Exhibit D-1 or D-2) from the proposed transferee of
such Certificate to the effect that such proposed transferee is not an employee
benefit plan or other retirement arrangement subject to Section 406 of
ERISA, or Section 4975 of the Code or any substantially similar applicable
law, or a Person acting on behalf of or using the assets of any such plan,
which representation letter shall not be an expense of the Trust, the Owner
Trustee, the Trust Administrator, the Certificate Registrar or the Depositor.


 


Prior to and as a condition of the registration of any
transfer, sale or other disposition of the Ownership Certificate, each Initial
Holder of an Ownership Certificate and each Prospective Holder of an Ownership
Certificate shall represent and warrant in writing, in the case of each Initial
Holder, in substantially the form set forth in Exhibit E hereto, and in
the case of each Prospective Holder, in substantially the form set forth in Exhibit F
hereto, to the Owner Trustee, the Trust Administrator and the Certificate
Registrar and any of their respective successors that:


 


(i)                                     Such
Person is duly authorized to purchase the Ownership Certificate and its
purchase of investments having the characteristics of the Ownership Certificate
is authorized under, and not directly or indirectly in contravention of, any
law, charter, trust instrument or other operative document, investment
guidelines or list of permissible or impermissible investments that is
applicable to the investor;


 


(ii)                                  Such
Person understands that each holder of an Ownership Certificate, by virtue of
its acceptance thereof, assents to the terms, provisions and conditions of the
Agreement; and


 


11





















 


(iii)                               Such
Person is a REIT, a Qualified REIT Subsidiary, or an entity that is disregarded
for federal income tax purposes that is wholly owned by a REIT or a Qualified
REIT Subsidiary.


 


Notwithstanding the forgoing, any Ownership
Certificate may be pledged to secure indebtedness and may be the subject of
repurchase agreements treated as secured indebtedness for federal income tax
purposes.


 


The Owner Trustee shall cause each Certificate to
contain a legend, substantially similar to the applicable legends provided in Exhibit A
hereto, stating that transfer of such Certificate is subject to certain
restrictions and referring prospective purchasers of the Certificates to this Section 3.03
with respect to such restrictions.


 


Section 3.04.                             Lost,
Stolen, Mutilated or Destroyed Certificate. 
If (a) a mutilated Certificate is surrendered to the Certificate
Registrar, or (b) the Certificate Registrar receives evidence to its
satisfaction that a Certificate has been destroyed, lost or stolen, and there
is delivered to the Certificate Registrar proof of ownership satisfactory to
the Certificate Registrar, together with such security or indemnity as required
by the Certificate Registrar and the Owner Trustee to save each of them
harmless, then in the absence of notice to the Certificate Registrar or the
Owner Trustee that such Certificate has been acquired by a protected purchaser,
the Owner Trustee shall execute on behalf of the Trust, and the Owner Trustee
or the Certificate Registrar shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and Percentage Interest.  In connection with the issuance of any new
Certificate under this Section 3.04, the Owner Trustee or the Certificate
Registrar may require the payment of a sum sufficient to cover any expenses of
the Owner Trustee or the Certificate Registrar (including any 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, the Certificate Registrar or any Certificate Paying Agent may treat
any Certificateholder as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.02 and for all other
purposes whatsoever, and none of the Trust, the Owner Trustee, the Certificate
Registrar or any Certificate Paying Agent shall be bound by any notice to the
contrary.


 


Section 3.06.                             Access
to List of Certificateholders’ Names and Addresses.  The Certificate Registrar shall furnish or
cause to be furnished to the Depositor or the Owner Trustee, within 15 days
after receipt by the Certificate Registrar of a written request therefor from
the Depositor or the Owner Trustee, in such form as the Depositor or the Owner
Trustee, as the case may be, may reasonably require, the name and address of
each Certificateholder as of the most recent Record Date.  A Certificateholder, by receiving and holding
a Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Registrar and the Owner Trustee accountable or
liable for damages by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.


 


12





















 


Section 3.07.                             [Reserved]


 


Section 3.08.                             Maintenance
of Office or Agency.  The Certificate
Registrar on behalf of the Trust, shall maintain an office or offices or agency
or agencies where the Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Certificates and the Operative Agreements may be served.  The Certificate Registrar shall give the
Owner Trustee prompt notice, in writing, of any such notice or demand.  The Certificate Registrar initially
designates the Corporate Trust Office of the Trust Administrator as its office
for such purposes.  The Certificate
Registrar shall give prompt written notice to the Depositor, the Owner Trustee
and the Certificateholders of any change in the location of the Certificate
Register or any such office or agency.


 


Section 3.09.                             Certificate
Paying Agent.


 


(a)                                  The
Owner Trustee may appoint, and hereby appoints, the Trust Administrator as
Certificate Paying Agent under this Agreement. 
The Certificate Paying Agent shall make distributions to each
Certificateholder from the Collection Account pursuant to Section 4.02
hereof and Sections 5.08 and 6.02 of the Transfer and Servicing Agreement and,
upon request, shall report the amounts of such distributions to the Owner
Trustee.  The Certificate Paying Agent
shall have the revocable power to withdraw funds from the Collection Account
for the purpose of making the distributions referred to above.  The Trust Administrator hereby accepts such
appointment and further agrees that it will be bound by the provisions of this
Agreement and the Transfer and Servicing Agreement relating to the Certificate
Paying Agent and shall:


 


(i)                                     hold
all sums held by it for the payment of amounts due with respect to the
Certificates in trust for the benefit of the Person entitled thereto until such
sums shall be paid to such Person 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 Trust 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 Certificate Paying Agent;


 


(iv)                              immediately
resign as Certificate Paying Agent and forthwith pay to the Owner Trustee on
behalf of the Trust all sums held by it in trust for the payment of the
Certificates if at any time it ceases to meet the standards under this Section 3.09
required to be met by the Certificate Paying Agent at the time of its
appointment; and


 


(v)                                 not
institute bankruptcy proceedings against the Trust in connection with this
Agreement.


 


(b)                                 In
the event that the Trust Administrator shall no longer be the Certificate
Paying Agent hereunder, the Owner Trustee, with the consent of the Depositor,
shall appoint a successor to act as Certificate Paying Agent (which shall be a
bank or trust company).  The Owner
Trustee shall cause such successor Certificate Paying Agent or any additional
Certificate Paying Agent 


 


13





















 


appointed by the Owner Trustee to execute and deliver to the Owner
Trustee an instrument in which such successor Certificate Paying Agent or
additional Certificate Paying Agent shall agree with the Owner Trustee that as
Certificate Paying Agent, such successor Certificate Paying Agent or additional
Certificate Paying Agent will hold all sums, if any, held by it for payment in
trust for the benefit of each Certificateholder entitled thereto until such
sums shall be paid to such Certificateholder. 
The Certificate Paying Agent shall return all unclaimed funds to the
Owner Trustee, and upon removal of a Certificate Paying Agent, such Certificate
Paying Agent shall also return all funds in its possession to the Owner Trustee.  The provisions of Sections 5.03, 5.04, 6.01,
6.05, 6.07, 6.08, 7.01 and 7.02 shall apply to the Trust Administrator also in
its role as Certificate Paying Agent for so long as the Trust Administrator
shall act as Certificate Paying Agent and, to the extent applicable, to any
other Certificate Paying Agent appointed hereunder.  Any reference in this Agreement to the
Certificate Paying Agent shall include any co-paying agent unless the context
requires otherwise.


 


Section 3.10.                             Initial
Beneficiary.  Upon the formation of
the Trust by the contribution by the Depositor pursuant to Section 2.05
and until the issuance of the Certificates, the Depositor shall be the sole
beneficiary of the Trust.


 


ARTICLE IV

APPLICATION OF TRUST FUNDS; CERTAIN DUTIES


 


Section 4.01.                             Collection
Account.  All of the right, title and
interest of the Trust in all funds on deposit from time to time in the
Collection Account and in all proceeds thereof shall be held for the benefit of
each Certificateholder and such other persons entitled to payments
therefrom.  Except as otherwise expressly
provided herein or in the Transfer and Servicing Agreement, the Collection
Account shall be under the sole dominion and control of the Owner Trustee for
the benefit of the Certificateholders.


 


The Collection Account shall be subject to and
established and maintained in accordance with the applicable provisions of the
Transfer and Servicing Agreement and the Indenture, including, without
limitation, the provisions of Sections 5.08 and 6.02 of the Transfer and
Servicing Agreement regarding distributions from the Collection Account.


 


Section 4.02.                             Application
of Trust Funds.


 


(a)                                  On
each Payment Date, the Owner Trustee shall direct the Certificate Paying Agent
to distribute to each Certificateholder, from amounts on deposit in the
Collection Account, the distributions as provided in Sections 5.08 and 6.02 of
the Transfer and Servicing Agreement with respect to such Payment Date.  The Owner Trustee hereby directs the
Certificate Paying Agent to distribute on each Payment Date to each
Certificateholder amounts on deposit in the Collection Account in accordance
with Sections 5.08 and 6.02 of the Transfer and Servicing Agreement and the
Certificate Paying Agent hereby acknowledges such direction.


 


(b)                                 All
payments to be made under this Agreement by the Certificate Paying Agent shall
be made only from the income and proceeds, including Net Proceeds from the
Notes, of the Trust Estate and only to the extent that the Certificate Paying
Agent has received such income or proceeds. 
The Bank shall not be liable to any Certificateholder, the Indenture
Trustee or the


 


14





















 


Trust Administrator for any amounts payable pursuant to this Section 4.02
except to the extent that non-payment is due to the Owner Trustee’s acts or
omissions amounting to willful misconduct or gross negligence.


 


(c)                                  Distributions
to any Certificateholder shall be subordinated to the creditors of the Trust,
including, without limitation, the Noteholders.


 


Section 4.03.                             Method
of Payment.  Subject to Section 8.01(c),
distributions required to be made to any Certificateholder on any Payment Date
as provided in Section 4.02 shall be made to the each Person who was a
Certificateholder on the preceding Record Date either by wire transfer, in
immediately available funds, to the account of each such Certificateholder at a
bank or other entity having appropriate facilities therefor, if such respective
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Payment Date or,
if not, by check mailed to each such Certificateholder at the respective
address of such Certificateholder appearing in the Certificate Register.


 


Section 4.04.                             [Reserved]


 


Section 4.05.                             Segregation
of Moneys; No Interest.  Moneys
received by or on behalf of the Owner Trustee hereunder and deposited into the
Collection Account will be segregated except to the extent required otherwise
by law or the provisions of the Transfer and Servicing Agreement.  The Owner Trustee shall not be liable for
payment of any interest in respect of such moneys.


 


ARTICLE V

AUTHORITY AND DUTIES OF THE OWNER TRUSTEE; ACTION BY CERTIFICATEHOLDERS


 


Section 5.01.                             General
Authority.  The Owner Trustee is
authorized and directed to execute and deliver the Notes, the Certificates, the
other Operative Agreements to which the Trust is to be a party, each
certificate or other document attached as an exhibit to or contemplated by the
Operative Agreements to which the Trust is to be a party and any amendment or
other agreement or instrument described herein, all as approved by the
Depositor, as evidenced conclusively by the Owner Trustee’s execution thereof,
and, on behalf of the Trust, to direct the Trust Administrator to authenticate
the Notes.  In addition to the foregoing,
the Owner Trustee is authorized, but shall not be obligated, to take all
actions required of the Trust pursuant to the Operative Agreements.


 


Section 5.02.                             General
Duties.


 


(a)                                  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 Agreement and the
other Operative Agreements to which the Trust is a party and to administer the
Trust in the interest of the Certificateholders, subject to the Operative
Agreements and in accordance with the provisions of this Agreement.  Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Operative Agreements to the extent the Trust
Administrator has agreed in the Transfer and Servicing Agreement or this
Agreement, respectively, to perform any act or to discharge any duty of the
Owner Trustee or the


 


15





















 


Trust hereunder or under any Operative Agreement, and the Owner Trustee
shall not be held liable for the default or failure of the Trust Administrator
to carry out its obligations under the this Agreement or the Transfer and
Servicing Agreement or any other Operative Agreement, respectively; and


 


(b)                                 It
shall be the duty of the Depositor under the Transfer and Servicing Agreement
to obtain and preserve the Trust’s qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to protect
the validity and enforceability of the Indenture, the Notes, the Collateral and
each other instrument and agreement included in the Trust Estate.  It shall be the duty of the Owner Trustee to
cooperate with the Depositor with respect to such matters.


 


Section 5.03.                             Action
Upon Instruction.


 


(a)                                  Subject
to Article V and in accordance with the terms of the Operative Agreements,
the Ownership Certificate Holder may by written instruction direct the Owner
Trustee in the management of the Trust, but only to the extent consistent with
the limited purpose of the Trust.  Such
direction may be exercised at any time by written instruction of the Ownership
Certificate Holder pursuant to this Article V.


 


(b)                                 Notwithstanding
the foregoing, the Owner Trustee shall not be required to take any action
hereunder or under any Operative Agreement if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any Operative Agreement or is otherwise
contrary to law.


 


(c)                                  Whenever
the Owner Trustee is unable to decide between alternative courses of action
permitted or required by the terms of this Agreement or under any other
Operative Agreement, or in the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any other Operative Agreement
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
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 may promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Ownership Certificate Holder 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 Ownership Certificate Holder,
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
Agreement or any other Operative Agreement, as it shall deem to be in the best
interests of each Certificateholder, and the Owner Trustee shall have no
liability to any Person for such action or inaction.


 


Section 5.04.                             No
Duties Except as Specified under Specified Documents or in Instructions.  The Owner Trustee shall not have any duty or
obligation to manage, make any


 


16





















 


payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee or the Trust 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 Agreement, and (ii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 5.03; and no implied duties or obligations shall be
read into this Agreement or any Operative Agreement against the Owner
Trustee.  Without limiting the foregoing,
unless specifically enumerated in any Operative Agreement to which the Owner
Trustee is party, the Owner Trustee (i) shall have no duty or obligation
to execute, file or deliver, or cause the preparation, filing or delivery by
other persons of, any such documents, reports, filings, instruments,
certificates or opinions as it shall be the duty of the Trust to prepare, file
or deliver pursuant to the Operative Agreements, (ii) shall have no duty
or obligation to take, or refrain from taking, any action that is the duty or
the obligation of the Trust pursuant to the Operative Agreements and (iii) shall
have no duty or obligation to monitor the Trust’s duties and obligations
pursuant to the Operative Agreements nor ensure that such duties and
obligations are fulfilled by the Trust. 
The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
the Trust or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Agreement or any Operative Agreement or to
prepare or file any tax return for the Trust. 
The Owner Trustee nevertheless agrees that it will, at its own cost and
expense, promptly take all action as may be necessary to discharge any liens on
any part of the Trust Estate that result from actions by, or claims against the
Bank that are not related to the ownership or the administration of the Trust
Estate.


 


Section 5.05.                             Restrictions.


 


(a)                                  The
Owner Trustee shall not take any action that is inconsistent with the purposes
of the Trust set forth in Section 2.03. 
The Ownership Certificate Holder shall not direct the Owner Trustee to
take action that would violate the provisions of this Section 5.05.


 


(b)                                 The
Owner Trustee shall not, except as provided herein, convey or transfer any of
the Trust’s properties or assets, including those included in the Trust Estate,
to any person unless such conveyance or transfer shall not violate the
provisions of the Indenture.


 


Section 5.06.                             Prior
Notice to the 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 each Certificateholder in
writing of the proposed action and each Certificateholder shall have notified
the Owner Trustee in writing prior to the 30th day after such notice is given
that each Certificateholder has consented to such action 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 Collateral) 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
Collateral);


 


17





















 


(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 Delaware Trust Statute);


 


(c)                                  the
amendment of the Indenture by a supplemental indenture or of this Agreement,
the Swap Agreement or any other Operative Agreement in circumstances where the
consent of any Noteholder is required;


 


(d)                                 the
amendment or other change of the Indenture by a supplemental indenture or of
this Agreement or any other Operative Agreement in circumstances where the
consent of any Noteholder is not required and such amendment materially
adversely affects the interests of any Certificateholder;


 


(e)                                  the
amendment of the Transfer and Servicing Agreement in circumstances where the
consent of any Securityholder is required;


 


(f)                                    the
amendment, change or modification of the Transfer and Servicing Agreement, except
to cure any ambiguity or to amend or supplement any provision in a manner or
add any provision that would not materially and adversely affect the interests
of any Certificateholder;


 


(g)                                 the
appointment pursuant to the Indenture of a successor Note Registrar, Paying
Agent or Indenture Trustee or pursuant to this Agreement of a successor
Certificate Registrar or Certificate Paying Agent or the consent to the
assignment by the Note Registrar, Paying Agent, Indenture Trustee, Certificate
Registrar or Certificate Paying Agent of its obligations under the Indenture or
this Agreement, as applicable;


 


(h)                                 the
consent to the calling or waiver of any default of any Operative Agreement;


 


(i)                                     the
consent to the assignment by the Indenture Trustee of its obligations under any
Operative Agreement;


 


(j)                                     except
as provided in Article VIII hereof, dissolve, terminate or liquidate the
Trust in whole or in part;


 


(k)                                  the
merger, conversion or consolidation of the Trust with or into any other entity,
or conveyance or transfer of all or substantially all of the Trust’s assets to
any other entity;


 


(l)                                     the
incurrence, assumption or guaranty by the Trust of any indebtedness other than
as set forth in this Agreement;


 


(m)                               the
taking of any action which conflicts with any Operative Agreement or would make
it impossible to carry on the ordinary business of the Trust or change the
Trust’s purpose and powers set forth in this Agreement;


 


(n)                                 the
confession of a judgment against the Trust;


 


(o)                                 the
possession of the Trust assets, or assignment of the Trust’s right to property,
for other than a Trust purpose; or


 


18





















 


(p)                                 the
lending of funds by the Trust to any entity.


 


In addition, the Trust shall not commingle its assets
with those of any other entity.  The
Trust shall maintain its financial and accounting books and records separate
from those of any other entity.  Except
as expressly set forth herein, the Trust shall pay its indebtedness, operating
expenses and liabilities from its own funds, and the Trust shall neither incur
any indebtedness nor pay the indebtedness, operating expenses and liabilities
of any other entity.  Except as expressly
set forth herein, the Trust shall not engage in any dissolution, liquidation,
consolidation, merger or sale of assets. 
The Trust shall maintain appropriate minutes or other records of all
appropriate actions and shall maintain its office separate from the offices of
the Depositor or any of its Affiliates. 
The Trust shall not engage in any business activity in which it is not
currently engaged other than as contemplated by the Operative Agreements and
related documentation.  The Trust shall
not form, or cause to be formed, any subsidiaries and shall not own or acquire
any asset other than as contemplated by the Operative Agreements and related
documentation.  Other than as
contemplated by the Operative Agreements and related documentation, the Trust
shall not follow the directions or instructions of the Depositor.  The Trust shall conduct its own business in
its own name.  The Trust shall observe
all formalities required under the Delaware Trust Statute.  The Trust shall not hold out its credit as
being available to satisfy the obligations of any other person or entity.  The Trust shall not acquire the obligations
or securities of its Affiliates or the Seller. 
Other than as contemplated by the Operative Agreements and related
documentation, the Trust shall not pledge its assets for the benefit of any
other person or entity.  The Trust shall
correct any known misunderstanding regarding its separate identity.  The Trust shall not identify itself as a
division of any other person or entity.


 


For accounting purposes, the Trust shall be treated as
an entity separate and distinct from each Certificateholder.  The pricing and other material terms of all
transactions and agreements to which the Trust is a party shall be
intrinsically fair to all parties thereto. 
This Agreement is and shall be the only agreement among the parties
thereto with respect to the creation, operation and termination of the Trust.


 


The Owner Trustee shall not have the power, except
upon the written direction of the Ownership Certificate Holder, and to the
extent otherwise consistent with the Operative Agreements, to (i) remove
or replace the Indenture Trustee, or (ii) institute a bankruptcy against
the Trust.  So long as the Indenture
remains in effect, to the extent permitted by applicable law, the Ownership
Certificate Holder shall have no power to commence, and shall not commence, any
bankruptcy with respect to the Trust or direct the Owner Trustee to commence
any bankruptcy with respect to the Trust.


 


(q)                                 The
Owner Trustee shall not have the power, except upon the written direction of
the Ownership Certificate Holder, to (i) remove the Trust Administrator
under the Transfer and Servicing Agreement pursuant to Section 7.10
thereof, (ii) appoint a successor Trust Administrator pursuant to Section 7.10
of the Transfer and Servicing Agreement, or (iii) except as expressly
provided in the Indenture, to sell the Collateral after the termination of the
Indenture.  The Owner Trustee shall take
the actions referred to in the preceding sentence only upon written
instructions signed and authorized by the Ownership Certificate Holder.


 


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Section 5.07.                             Action
by the Holder with Respect to Bankruptcy. 
The Owner Trustee shall not have the power to commence or consent to a
bankruptcy relating to the Trust without the prior approval of the Ownership
Certificate Holder and the delivery to the Owner Trustee by the Ownership
Certificate Holder of a certificate certifying that the Ownership Certificate
Holder reasonably believes that the Trust is insolvent.  This paragraph shall survive for one year and
one day following termination of this Agreement.  So long as the Indenture remains in effect,
the Ownership Certificate Holder shall not have the power to institute, and
shall not institute, any bankruptcy with respect to the Trust or direct the
Owner Trustee to take such action.


 


Section 5.08.                             Restrictions
on the Ownership Certificate Holder’s Power.  The Ownership Certificate Holder 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 Agreement or any of the Operative Agreements or would
be contrary to Section 2.03 nor shall the Owner Trustee be obligated to
follow any such direction, if given.


 


ARTICLE VI

CONCERNING THE OWNER TRUSTEE


 


Section 6.01.                             Acceptance
of Trusts and Duties.  The Owner
Trustee accepts the trusts hereby created and agrees to perform the same but
only upon the terms of this Agreement and the terms of the Transfer and
Servicing Agreement.  The Owner Trustee
also agrees to disburse all moneys actually received by it constituting part of
the Trust Estate upon the terms of this Agreement.  The Bank shall not be answerable or
accountable hereunder or under any other Operative Agreements under any
circumstances, except (i) for its own willful misconduct, gross negligence
or bad faith, (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 6.04, (iii) for liabilities arising
from the failure by the Bank to perform obligations expressly undertaken by it
in the last sentence of Section 5.04, or (iv) for taxes, fees or
other charges based on or measured by any fees, commissions or compensation
received by the Bank in connection with any of the transactions contemplated by
this Agreement, any other Operative Agreements or the Notes.  In particular, but not by way of limitation:


 


(a)                                  The
Bank shall not be liable for any error of judgment made in good faith by a
Responsible Officer of the Owner Trustee;


 


(b)                                 The
Bank shall not be liable with respect to any action taken or omitted to be
taken by the Owner Trustee in accordance with the instructions of any
Certificateholder;


 


(c)                                  No
provision of this Agreement shall require the Bank to expend or risk funds or
otherwise incur any financial liability in the performance of any of the Owner
Trustee’s rights or powers hereunder or under any other Operative Agreements if
the Bank shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured or provided to it;


 


(d)                                 Under
no circumstance shall the Bank be liable for indebtedness evidenced by or
arising under any of the Operative Agreements, including the principal of and
interest on the Notes;


 


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(e)                                  The
Bank shall not be liable with respect to any action taken or omitted to be
taken by the Depositor, the Trust Administrator, the Master Servicer, the
Indenture Trustee, any Officer or the Certificate Paying Agent under this
Agreement or any other Operative Agreement or otherwise and the Bank shall not
be obligated to perform or monitor the performance of any obligations or duties
under this Agreement or the other Operative Agreements which are to be
performed by the Certificate Paying Agent under this Agreement, the Trust
Administrator under the Transfer and Servicing, the Indenture Trustee under the
Indenture or by any other Person under any of the Operative Agreements; and


 


(f)                                    The
Bank shall not be responsible for or in respect of the recitals herein, the
validity or sufficiency of this Agreement or for the due execution hereof by
the Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Trust Estate or for or in respect of the validity or
sufficiency of the Operative Agreements, other than the certificate of
authentication on the Certificates, and the Bank shall in no event assume or
incur any liability, duty or obligation to any Noteholder, the Depositor or to
any Certificateholder, other than as expressly provided for herein.


 


Section 6.02.                             Furnishing
of Documents.  The Owner Trustee will
furnish to the Trust Administrator (for distribution to each
Certificateholder), promptly upon receipt of a written request therefor, duplicates
or copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner Trustee hereunder
or under the Operative Agreements unless the Trust Administrator shall have
already received the same.


 


Section 6.03.                             Books
and Records.  The Owner Trustee shall
keep or cause to be kept proper books of record and account of all the
transactions under this Agreement, including a record of the name and address
of each Certificateholder.  The Owner Trustee
shall be deemed to have complied with this Section 6.03 by the appointment
of the Trust Administrator and the Certificate Paying Agent to perform the
duties hereunder.


 


Section 6.04.                             Representations
and Warranties.


 


(a)                                  The
Bank represents and warrants to the Depositor, for the benefit of each
Certificateholder and the Swap Counterparty, as follows:


 


(i)                                     the
Bank is a national banking association, duly organized and validly existing
under the laws of the United States and has the power and authority to execute,
deliver and perform its obligations under this Agreement and (assuming due
authorization, execution and delivery of this Agreement by the Depositor and
Trust Administrator), has the power and authority as Owner Trustee to execute
and deliver the Operative Agreements and to perform its obligations thereunder
and, assuming the due authorization, execution and delivery hereof by the other
parties hereto, this Agreement constitutes a legal, valid and binding
obligation of the Bank or the Owner Trustee, as the case may be, enforceable
against the Bank or the Owner Trustee, as the case may be, in accordance with
its terms, except that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors’ rights generally and (b) the remedy of specific
performance and injunctive and


 


21





















 


other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought;


 


(ii)                                  the
Bank has no reason to believe that anyone authorized to act on its behalf has
offered any interest in and to the Trust for sale to, or solicited any offer to
acquire any of the same from, anyone;


 


(iii)                               the
execution, delivery and performance by the Bank, either in its individual
capacity or as Owner Trustee, as the case may be, of the Operative Agreements
will not result in any violation of, or be in any conflict with, or constitute
a default under any of the provisions of any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, lease, note or bond
purchase agreement, license, judgment, order or other agreement to which the
Bank is a party or by which it or any of its properties is bound;


 


(iv)                              the
execution and delivery by the Bank of this Agreement, and the performance of
its duties as Owner Trustee hereunder, do not require the consent or approval
of, the giving of notice to, or the registration with, or the taking of any
other action with respect to, any governmental authority or agency of the State
of Delaware (except as may be required by the Delaware Trust Statute); and


 


(v)                                 there
are no pending or, to the best of its knowledge, threatened actions or proceedings
against the Bank before any court, administrative agency or tribunal which, if
determined adversely to it, would materially and adversely affect its ability,
either in its individual capacity or as Owner Trustee, as the case may be, to
perform its obligations under this Agreement or the Operative Agreements.


 


(b)                                 Wells
Fargo Bank, N.A., as Trust Administrator, hereby represents and warrants to the
Depositor, for the benefit of each Certificateholder and the Swap Counterparty,
that:


 


(i)                                     it
is a national banking association, duly organized and validly existing in good
standing under the laws of the United States, and has the power and authority
to execute, deliver and perform its obligations under this Agreement and,
assuming the due authorization, execution and delivery hereof by the other
parties hereto, this Agreement constitutes a legal, valid and binding
obligation of the Trust Administrator, enforceable against the Trust
Administrator in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought;


 


(ii)                                  it
has taken all action necessary to authorize the execution and delivery by it of
this Agreement, and this Agreement will be executed and delivered by one of its
officers who is duly authorized to execute and deliver this Agreement on its
behalf; and


 


(iii)                               neither
the execution nor the delivery by it of this Agreement nor the consummation by
it of the transactions contemplated hereby nor compliance by it with


 


22





















 


any of the terms or
provisions hereof will contravene any federal, governmental rule or
regulation governing the banking or trust powers of the Trust Administrator or
any judgment or order binding on it, or constitute any default under its
charter documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may be
bound.


 


Section 6.05.                             Reliance;
Advice of Counsel.


 


(a)                                  Except
as provided in Section 6.01, the Owner Trustee shall incur no liability to
anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
believed by it to be genuine and believed by it to be signed by the proper
party or parties.  The Owner Trustee may
accept a certified copy of a resolution of the board of directors or other
governing body of any corporate or partnership entity as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect.  As to any fact or
matter the manner of ascertainment of which is not specifically prescribed
herein, the Owner Trustee may for all purposes hereof rely on a certificate,
signed by the president or any vice president (or the general partner, in the
case of a partnership) and by the treasurer or any assistant treasurer or the
secretary or any assistant secretary of the relevant party, as to such fact or
matter, and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.


 


(b)                                 In
its exercise or administration of the trusts and powers hereunder, including
its obligations under Section 5.02(b), and in the performance of its
duties and obligations under this Agreement or the other Operative Agreements,
the Owner Trustee may employ agents and attorneys and enter into agreements
(including the Transfer and Servicing Agreement) with any of them, and the
Owner Trustee shall not be answerable for the default or misconduct of any such
agents or attorneys if such agents or attorneys shall have been selected by the
Owner Trustee with reasonable care.  If,
and to the extent, the Seller shall have failed to reimburse the Owner Trustee
for all reasonable expenses and indemnities incurred pursuant to this Section 6.05(b),
as provided in Section 7.01 and Section 7.02, the Owner Trustee may
seek reimbursement therefor from the Trust Estate.


 


(c)                                  In
the administration of the trusts and performance of its duties hereunder, the
Owner Trustee may consult with counsel, accountants and other skilled Persons
to be selected and employed by it, and the Owner Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in accordance with
the reasonable advice or opinion of any such counsel, accountants or other
skilled Persons.  If, and to the extent,
the Seller shall have failed to reimburse the Owner Trustee for all reasonable
expenses and indemnities incurred pursuant to this Section 6.05(c), as
provided in Section 7.01 and Section 7.02, the Owner Trustee may seek
reimbursement therefor from the Trust Estate.


 


Section 6.06.                             Not
Acting in Individual Capacity. 
Except as provided in this Article VI, in accepting the trusts
hereby created the Owner Trustee acts solely as trustee hereunder and not in
its individual capacity, and all persons having any claim against the Owner
Trustee by reason of the transactions contemplated by the Operative Agreements
shall look only to the Trust Estate for payment or satisfaction thereof.


 


23





















 


Section 6.07.                             Owner
Trustee Not Liable for Certificates or Collateral.  The recitals contained herein and in the
Certificates (other than the signatures and countersignatures 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 Agreement, of any Operative Agreement or
of the Certificates (other than the signatures and countersignatures of the
Owner Trustee on the Certificates) or the Notes, or of any Collateral or
related documents.  The Owner Trustee
shall at no time have any responsibility or liability for or with respect to
the legality, validity and enforceability of any Collateral, or the perfection
and priority of any security interest created by any Collateral or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Trust Estate or its ability to generate the payments to be
distributed to Certificateholders under this Agreement or the Noteholders under
the Indenture, including, without limitation: 
the existence, condition and ownership of any Collateral; the existence
and enforceability of any insurance thereon; the existence and contents of any
Collateral on any computer or other record thereof; the validity of the
assignment of any Collateral to the Trust or of any intervening assignment; the
completeness of any Collateral; the performance or enforcement of any
Collateral; the compliance by the Depositor with any warranty or representation
made under any Operative Agreements or in any related document or the accuracy
of any such warranty or representation or any action of the Trust Administrator
or the Indenture Trustee taken in the name of the Owner Trustee.


 


Section 6.08.                             Owner
Trustee May Own Notes.  The
Owner Trustee in its individual capacity may become an owner or pledgee of
Notes and may deal with the Depositor, the Trust Administrator and the
Indenture Trustee in banking transactions with the same rights as it would have
if it were not Owner Trustee.


 


Section 6.09.                             Licenses.  The Depositor shall cause the Trust to use
its best efforts to obtain and maintain the effectiveness of any licenses
required in connection with this Agreement and the other Operative Agreements
and the transactions contemplated hereby and thereby until such time as the
Trust shall terminate in accordance with the terms hereof.  It shall be the duty of the Owner Trustee to
cooperate with the Depositor with respect to such matters.


 


Section 6.10.                             Doing
Business in Other Jurisdictions. 
Notwithstanding anything contained herein to the contrary, neither the
Bank nor the Owner Trustee shall be required to take any action in any
jurisdiction other than in the State of Delaware if the taking of such action
will (i) require the consent or approval or authorization or order of or
the giving of notice to, or the registration with or the taking of any other
action in respect of, any state or other governmental authority or agency of
any jurisdiction other than the State of Delaware; (ii) result in any fee,
tax or other governmental charge under the laws of any jurisdiction or any
political subdivisions thereof in existence on the date hereof other than the
State of Delaware becoming payable by the Bank or the Owner Trustee; or (iii) subject
the Bank or the Owner Trustee to personal jurisdiction in any jurisdiction
other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by the Bank or the Owner
Trustee, as the case may be, contemplated hereby.  The Owner Trustee shall be entitled to obtain
advice of counsel (which advice shall be an expense of the Trust) to determine
whether any action required to be taken pursuant to this Agreement results in
the consequences described in clauses (i), (ii) and (iii) of the
preceding sentence.  In the event that
such counsel advises the Owner Trustee that


 


24





















 


such action will result in such consequences, the Owner Trustee will
appoint a co-trustee pursuant to Section 9.05 hereof to proceed with such
action.


 


Section 6.11.                             Sarbanes-Oxley
Act Certification.  Notwithstanding
anything to the contrary herein or in any Operative Agreement, the Owner
Trustee shall not be required to execute, deliver or certify on behalf of the
Trust or any other Person any filings, certificates, affidavits or other
instruments in connection with certifications required under the Sarbanes-Oxley
Act of 2002.


 


ARTICLE VII

INDEMNIFICATION AND COMPENSATION


 


Section 7.01.                             Trust
Expenses.  The Seller shall pay the
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee in connection therewith.  The Seller shall also pay (or reimburse the
Bank for) all reasonable expenses of the Owner Trustee hereunder, including,
without limitation, the reasonable compensation, expenses and disbursements of
such agents, representatives, experts and counsel as the Owner Trustee may
employ in connection with the exercise and performance of its rights and duties
under the Operative Agreements.


 


Section 7.02.                             Indemnification.  The Seller agrees to assume liability for,
and indemnify the Bank and its successors, assigns, officers, directors, agents
and servants, against and from, any and all liabilities, obligations, losses,
damages, taxes, claims, actions, suits, costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, “Expenses”) which may be imposed on, incurred by or asserted at
any time against the Bank (whether or not indemnified against by other parties)
in any way relating to or arising out of this Agreement, any Operative
Agreement, the Collateral, the administration of the Trust Estate or the action
or inaction of the Owner Trustee hereunder, except only that the Seller shall
not be required to indemnify the Bank for Expenses arising or resulting from
any of the matters described in the third sentence of Section 6.01.  The indemnities contained in this Section 7.02
shall survive the resignation or termination of the Owner Trustee or the
termination of this Agreement.  In the
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section, the Owner Trustee’s choice of legal counsel shall be
subject to the approval of the Seller, which approval shall not be unreasonably
withheld.


 


Section 7.03.                             Compensation.  The Bank shall receive as compensation for
its services hereunder such fees as are set forth in the Fee Letter Agreement
between the Bank and the Seller.


 


Section 7.04.                             Lien
on Trust Estate.  The Bank shall have
a lien on the Trust Estate for any compensation or indemnity due hereunder,
such lien to be subject only to prior liens of the Indenture.  The Bank shall not bring any proceedings to
foreclose on such lien if and to the extent the Trust Estate is subject to the
lien of the Indenture.  Any amount paid
to the Owner Trustee pursuant to this Article VII shall be deemed not to
be part of the Trust Estate immediately after such payment.


 


25





















 


ARTICLE VIII

TERMINATION OF AGREEMENT


 


Section 8.01.                             Termination
of Agreement.


 


(a)                                  This
Agreement (other than Article VII) shall terminate and the trusts created
hereby shall dissolve and terminate and the Trust Estate shall, subject to the
Indenture and Sections 4.01 and 7.04 and Section 3808 of the Delaware
Trust Statute, be distributed to the Certificateholders, and this Agreement
shall be of no further force or effect, upon the earlier of (i) the full
payment of principal and interest due on all Classes of the Notes and all
obligations under the Swap Agreement; and (ii) the sale or other final
disposition by the Indenture Trustee or the Owner Trustee, as the case may be,
of all the Trust Estate and the final distribution by the Indenture Trustee or
the Owner Trustee, as the case may be, of all moneys or other property or
proceeds of the Trust Estate in accordance with the terms of the Indenture, the
Transfer and Servicing Agreement and Section 4.02.  The bankruptcy, liquidation or dissolution of
any Certificateholder shall not operate to terminate this Agreement, nor
entitle such Certificateholder’s legal representatives to claim an accounting
or to take any action or proceeding in any court for a partition or winding up
of the Trust Estate, nor otherwise affect the rights, obligations and
liabilities of the parties hereto.


 


(b)                                 Except
as provided in Section 8.01(a), none of the Depositor or any
Certificateholder shall be entitled to revoke or terminate the Trust
established hereunder.


 


(c)                                  Notice
of any termination of the Trust, specifying the Payment Date upon which
Certificateholders shall surrender their Certificates to the Certificate Paying
Agent for payment of the final distribution and cancellation, shall be given by
the Certificate Paying Agent by letter to the Certificateholders, the Swap
Counterparty and the Rating Agencies mailed within five Business Days of receipt
of notice of the final payment on the Notes pursuant to the Transfer and
Servicing Agreement, stating (i) the Payment Date upon or with respect to
which final payment of the Certificates shall be made upon presentation and
surrender of the Certificates at the office of the Certificate Paying Agent
therein designated, (ii) the amount of any such final payment and (iii) that
the Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the Certificates at
the office of the Certificate Paying Agent therein specified.  The Certificate Paying Agent shall give such
notice to the Owner Trustee and the Certificate Registrar at the time such
notice is given to the Certificateholders. 
Upon presentation and surrender of the Certificates, the Certificate
Paying Agent shall cause to be distributed to the applicable Certificateholder
amounts distributable on such Payment Date pursuant to Section 5.08 and Section 6.02
of the Transfer and Servicing Agreement.


 


(d)                                 Upon
the winding up of the Trust and its termination, the Owner Trustee shall upon
the written request of the Depositor cause the Certificate of Trust to be
cancelled by filing a certificate of cancellation with the Secretary of State
in accordance with the provisions of Section 3810 of the Delaware Trust
Statute.


 


26










 













 


ARTICLE IX

SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES


 


Section 9.01.                             Eligibility
Requirements for Owner Trustee.  The
Owner Trustee shall at all times be a corporation satisfying the provisions of Section 3807(a) of
the Delaware Trust Statute; authorized to exercise corporate 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
which has) a short-term debt rating of at least “A-1” or the equivalent by, or
which 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, the Owner Trustee shall resign immediately in the
manner and with the effect specified in Section 9.02.


 


Section 9.02.                             Resignation
or Removal 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, the
Swap Counterparty and the Indenture Trustee. 
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 one
copy 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.  If the Depositor shall remove
the Owner Trustee under the authority of the immediately preceding sentence,
the Depositor shall promptly appoint a successor Owner Trustee by written
instrument in duplicate, one copy of which instrument shall be delivered to the
outgoing Owner Trustee so removed and one copy to the successor Owner Trustee
and payment of all fees owed to the outgoing 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 Trust Administrator shall provide notice
of such resignation or removal of the Owner Trustee to 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 Trust Administrator and to its predecessor Owner Trustee an
instrument accepting such appointment under this


 


27





















 


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
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 Agreement; and the
Trust Administrator 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 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, the Trust Administrator shall mail notice of
the successor of such Owner Trustee to all Certificateholders, the Indenture
Trustee, the Noteholders, the Swap Counterparty and the Rating Agencies.  If the Trust Administrator fails to mail such
notice within 10 days after acceptance of appointment by the successor Owner
Trustee, the successor Owner Trustee shall cause such notice to be mailed at
the expense of the Trust Administrator.


 


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, provided such Person shall be eligible
pursuant to Section 9.01, 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.


 


Section 9.05.                             Appointment
of Co-Trustee or Separate Trustee. 
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Estate or any Collateral may at the time be located, and for
the purpose of performing certain duties and obligations of the Owner Trustee
with respect to the Trust and the Certificates under the Transfer and Servicing
Agreement, the Owner Trustee shall have the power and shall execute and deliver
all instruments to appoint one or more Persons approved by the Owner Trustee to
act as co-trustee, jointly with the Owner Trustee, or separate trustee or
separate trustees, of all or any part of the 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 Agreement shall be required to meet the terms of eligibility
as a successor 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.


 


28





















 


The Owner Trustee hereby appoints the Trust
Administrator for the purpose of establishing and maintaining the Collection
Account and making the distributions therefrom to the Persons entitled thereto
pursuant to Section 5.08 and Section 6.02 of the Transfer and
Servicing Agreement.


 


Each separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provision 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 Trust 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 Agreement shall be personally liable by reason of any act or
omission of any other trustee under this Agreement; and


 


(c)                                  the
Trust Administrator and the Owner Trustee acting jointly 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 the separate trustees and
co-trustees, as if given to each of them. 
Every instrument appointing any separate trustee or co-trustee, other
than this Agreement, shall refer to this Agreement and to the conditions of
this Article.  Each separate trustee and
co-trustee, upon its acceptance of appointment, shall be vested with the
estates 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 Agreement, specifically including every provision of this
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 and a copy thereof given
to the Trust Administrator.


 


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 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 trustee.


 


ARTICLE X

MISCELLANEOUS


 


Section 10.01.                       Supplements
and Amendments.  This Agreement may
be amended by the Depositor, the Trust Administrator and the Owner Trustee,
with the consent of each Certificateholder and with the prior written consent
of the Swap Counterparty (but only to the


 


29





















 


extent such amendment materially adversely affects the amounts,
priority or timing of payments under the Swap Agreement and the Swap Agreement
is in effect) and with prior written notice to the Rating Agencies, but without
the consent of any of the Noteholders or the Indenture Trustee, to cure any
ambiguity, to correct or supplement any provisions in this Agreement or for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions in this Agreement or of modifying in any manner the
rights of the Noteholders or each Certificateholder; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Noteholder or
Certificateholder or adversely affect the tax status of the Trust.  An amendment shall not be deemed to adversely
affect in any material respect the interests of any Noteholder or
Certificateholder and no opinion referred to in the preceding proviso shall be
required to be delivered if the Person requesting the amendment obtains a
letter from each Rating Agencies stating that the amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to each
applicable Class of Notes and Certificates.  Notwithstanding the preceding sentence, an
opinion shall be required with respect to tax matters as set forth in this
paragraph.


 


This Agreement may also be amended from time to time
by the Depositor, the Trust Administrator and the Owner Trustee, with the prior
written consent of the Rating Agencies and with the prior written consent of
the Indenture Trustee, the holders of Notes evidencing more than 66 2/3 % of
the Outstanding Balance of the Notes, the consent of each Certificateholder and
with the prior written consent of the Swap Counterparty (but only to the extent
such amendment materially adversely affects the amounts, priority or timing of
payments under the Swap Agreement and the Swap Agreement is in effect), for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the
rights of any Certificateholder; provided,
however, that no such amendment
shall, as evidenced by an Opinion of Counsel, adversely affect the tax status
of the Trust; and provided, further, that no such amendment shall (a) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on the Collateral or payments that shall be required to
be made for the benefit of the Noteholders or any Certificateholder or (b) reduce
the aforesaid percentage of the Outstanding Balance of the Notes required to
consent to or to waive the requirement for any Certificateholder to consent to
any such amendment, in either case of clause (a) or (b) without the
consent of the holders of all the outstanding Notes and each Certificateholder.


 


Notwithstanding the foregoing, no provision of
Sections 2.03 or 5.06 hereof may be amended in any manner unless (i) 100%
of the Outstanding Balance of the Noteholders have consented in writing
thereto, (ii) the Rating Agencies have consent in writing thereto or (iii) the
Notes have been paid in full and the Indenture has been discharged.


 


Promptly after the execution of any such amendment or
consent, the Trust Administrator 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 the
Certificateholders, the 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


 


30





















 


thereof.  The manner of obtaining such consents (and
any other consents of the Certificateholders provided for in this Agreement or
in any other Operative Agreement) and of evidencing the authorization of the
execution thereof by the Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.


 


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.


 


Prior to the execution of any amendment to this
Agreement or the Certificate of Trust, the Owner Trustee and the Trust
Administrator shall be entitled to receive and rely upon an Opinion of Counsel,
at the expense of the Trust, stating that the execution of such amendment is
authorized or permitted by this Agreement. 
Neither the Owner Trustee nor the Trust Administrator shall be obligated
to enter into any such amendment which affects the Owner Trustee’s or Trust
Administrator’s own rights, duties or immunities under this Agreement or
otherwise.


 


Section 10.02.                       No Legal
Title to Trust Estate in Certificateholders.  The Certificateholders shall not have legal
title to any part of the Trust Estate and shall only be entitled to receive
distributions with respect to their respective undivided beneficial interest
therein pursuant to Section 4.02 once all amounts then owing with respect
to the Notes have been paid in accordance with the Indenture.  No transfer, by operation of law of any
right, title and interest of any Certificateholder in and to its undivided
beneficial interest in the Trust Estate or hereunder shall operate to terminate
this Agreement or the trusts hereunder or entitle any successor transferee to
an accounting or to the transfer to it of legal title to any part of the Trust
Estate.


 


Section 10.03.                       Pledge
of Collateral by Owner Trustee is Binding. 
The pledge of the Collateral to the Indenture Trustee by the Trust made
under the Indenture and pursuant to the terms of this Agreement shall bind each
Certificateholder and shall be effective to transfer or convey the rights of
the Trust and each Certificateholder in and to such Collateral to the extent
set forth in the Indenture.  No purchaser
or other grantee shall be required to inquire as to the authorization,
necessity, expediency or regularity of such pledge or as to the application of
any proceeds with respect thereto by the Owner Trustee.


 


Section 10.04.                       Limitations
on Rights of Others.  Nothing in this
Agreement, whether express or implied (except for Section 7.04), shall be
construed to give to any Person other than the Owner Trustee and the
Certificateholders any legal or equitable right in the Trust Estate or under or
in respect of this Agreement or any covenants, conditions or provisions
contained herein.


 


Section 10.05.                       Notices.  Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and delivered by
hand, by courier or mailed by certified mail, postage prepaid, (a) if to
the Owner Trustee or the Trust, addressed to it at the Corporate Trust Office
of the Owner Trustee or to such other address as the Owner Trustee may have set
forth in a written notice to the Certificateholders and the Depositor addressed
to it at the address set forth for such Certificateholders in the Certificate
Register; (b) if to the Trust Administrator, addressed to it at the
Corporate Trust Office of the Trust Administrator; and (c) if to the


 


31





















 


Depositor, Fieldstone Mortgage Investment Corporation, 11000 Broken
Lane Parkway, Suite 600, Columbia, Maryland 21044.  Whenever any notice in writing is required to
be given by the Owner Trustee or the Trust Administrator, such notice shall be
deemed given and such requirement satisfied if such notice is mailed by
certified mail, postage prepaid, addressed as provided above.


 


Section 10.06.                       Severability.  Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


Section 10.07.                       Separate
Counterparts.  This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.


 


Section 10.08.                       Successors
and Assigns.  All representations,
warranties, covenants and agreements contained herein shall be binding upon,
and inure to the benefit of, the Owner Trustee and its successors and assigns
and the Swap Counterparty, the Depositor and each Certificateholder and its respective
successors, all as herein provided.  Any
request, notice, direction, consent, waiver or other instrument or action by
any Certificateholder shall bind the successors of each such Certificateholder.  Notwithstanding anything to the contrary
herein, the Swap Counterparty is an express third party beneficiary of this
Agreement.


 


Section 10.09.                       Headings.  The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.


 


Section 10.10.                       Governing
Law.  THIS AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF DELAWARE WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS THEREOF,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.


 


Section 10.11.                       No
Petition.


 


(a)                                  The
Owner Trustee and the Trust Administrator, by entering into this Agreement,
each Certificateholder, by accepting the Certificates, and the Indenture
Trustee and each Noteholder, by accepting the benefits of this Agreement,
hereby covenant and agree that they will not at any time institute against the
Depositor or the Trust, or join in any institution against the Depositor or the
Trust of, any bankruptcy under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificates,
the Notes, this Agreement or any of the other Operative Agreements.


 


(b)                                 The
Depositor shall not be liable for the default or misconduct of the Trust
Administrator, the Owner Trustee, the Indenture Trustee or the Certificate
Paying Agent under


 


32





















 


any of the Operative Agreements or otherwise and the Depositor shall
have no obligation or liability to perform the obligations of the Trust under
this Agreement or the Operative Agreements that are required to be performed by
the Trust Administrator under the Transfer and Servicing Agreement or the
Indenture Trustee under the Indenture.


 


Section 10.12.                       No
Recourse.  Each Certificateholder by
accepting a Certificate acknowledges that such Certificateholder’s Certificate
represents a beneficial interest in the Trust only and does not represent an
interest in or an obligation of the Depositor, the Trust Administrator, the
Owner Trustee, any co-trustee, the Bank or any Affiliate thereof (other than
the Trust) and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated in this Agreement, the
Certificates or the other Operative Agreements.


 


Section 10.13.                       Customer
Identification.  The Depositor’s
legal name, principal place of business, local office or other physical
location street address is Fieldstone Mortgage Investment Corporation, 11000
Broken Lane Parkway, Suite 600, Columbia, Maryland 21044, and its
government issued identification number is 20-2972688.  The Seller’s legal name, principal place of business,
local office or other physical location street address is Fieldstone Investment
Corporation, 11000 Broken Land Parkway, Suite 600, Columbia, Maryland
21044, and its government issued identification number is 54-1873198.  In connection with any federal, state or
local laws requiring financial institutions to obtain, verify and record
information that identifies each person or entity who opens an account, the
Owner Trustee may request, and the Seller and the Depositor agree to promptly
provide to the Owner Trustee, copies of documentation which substantiates the
identity of the Depositor or the Seller, as applicable.  Such documentation may include, but is not
limited to, financial statements, government licenses, certified copies of
formation documents or identification documentation of principals claiming to
represent such party.


 


ARTICLE XI

OFFICERS


 


Section 11.01.                       Appointment
of Officers.  The Trust may have one
or more Officers who are hereby empowered to take and are responsible for
performing all ministerial duties on behalf of the Trust pursuant to this
Agreement and the other Operative Agreements, including, without limitation,
the execution of the Officers’ Certificate (as defined in the Indenture), the
Trust Order (as defined in the Indenture), the Trust Request (as defined in the
Indenture), the annual compliance report required under Section 3.09 of
the Indenture, and any annual reports, documents and other reports which the
Trust is required to file with the Securities and Exchange Commission pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended.  Each of the Chairman of the
Board, the Chief Executive Officer, the President, each Senior Vice President
and each Vice President of the Depositor is hereby appointed as an Officer of
the Trust.  The Depositor shall promptly
deliver to the Owner Trustee and the Indenture Trustee a list of its officers
who shall become the Officers of the Trust pursuant to this Section 11.01.


 


Section 11.02.                       Officers
to Provide Information to the Owner Trustee.  It shall be the duty of each Officer to keep
the Owner Trustee reasonably and promptly informed as to material


 


33





















 


events relating to the Trust, including, without limitation, all claims
pending or threatened against the Trust, the purchase and sale of any material
portion of the Trust Estate and the execution by such Officer on behalf of the
Trust of any material agreements or instruments.


 


34





















 


IN WITNESS WHEREOF, the parties hereto have caused
this Trust Agreement to be duly executed by their respective officers hereunto
duly authorized, as of the day and year first above written.


 


	
   

  	
  FIELDSTONE MORTGAGE INVESTMENT CORPORATION,

  
	
   

  	
  as Depositor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ John C. Kendall

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John C. Kendall

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  U.S. BANK TRUST NATIONAL ASSOCIATION,

  
	
   

  	
  not in its individual capacity but solely as

  
	
   

  	
  Owner Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
    /s/ Charles F. Pedersen

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Charles F. Pedersen

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, N.A.,

  
	
   

  	
  not in its individual capacity but solely as Trust

  
	
   

  	
  Administrator

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Amy Doyle

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Amy Doyle

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
  Acknowledged and
  Agreed, solely

  	
   

  	
   

  
	
  for purposes of
  Sections 2.11, 7.01, 7.02 and 10.13:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  FIELDSTONE
  INVESTMENT CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
    /s/
  John C. Kendall

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John C. Kendall

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  	
   

  	
   

  
														



 





















 


EXHIBIT A


 


FORM OF CERTIFICATES


 


THIS OWNERSHIP CERTIFICATE HAS NOT BEEN AND WILL NOT
BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE
SECURITIES LAWS OF ANY STATE.  THIS
OWNERSHIP CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR
OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (A) A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE ACT, IN A
TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT
TO RULE 144A OR (B) AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE ACT THAT
IS ACQUIRING THE OWNERSHIP CERTIFICATE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE ACT.  NO PERSON IS
OBLIGATED TO REGISTER THIS OWNERSHIP CERTIFICATE UNDER THE ACT OR ANY STATE
SECURITIES LAWS.


 


THIS CERTIFICATE MAY NOT BE ACQUIRED BY A
TRANSFEREE FOR, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR ANY SUBSTANTIALLY
SIMILAR LAW, OR ANY ENTITY DEEMED TO HOLD THE PLAN ASSETS OF THE
FOREGOING.  EACH INVESTOR IN THIS
CERTIFICATE WILL BE DEEMED TO MAKE THE FOREGOING REPRESENTATIONS AND WILL FURTHER
BE DEEMED TO REPRESENT, WARRANT AND COVENANT THAT IT WILL NOT SELL, PLEDGE OR
OTHERWISE TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.


 


THIS OWNERSHIP CERTIFICATE DOES NOT REPRESENT AN
INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE MASTER SERVICER, THE INDENTURE
TRUSTEE, THE OWNER TRUSTEE, THE TRUST ADMINISTRATOR OR ANY OF THEIR RESPECTIVE
AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE TRUST AGREEMENT OR THE OTHER
OPERATIVE AGREEMENTS.


 


THIS OWNERSHIP CERTIFICATE IS SUBORDINATE IN RIGHT OF
PAYMENT AS DESCRIBED IN THE TRANSFER AND SERVICING AGREEMENT REFERRED TO
HEREIN.


 


NO TRANSFER OF THIS OWNERSHIP CERTIFICATE SHALL BE
MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED AN AFFIDAVIT FROM THE
PROPOSED TRANSFEREE IN WHICH THE PROPOSED TRANSFEREE DECLARES THAT IT IS A REAL
ESTATE INVESTMENT TRUST (A “REIT”) WITHIN THE MEANING


 


A-1





















 


OF SECTIONS 856 AND 857 OF THE CODE OR A QUALIFIED
REIT SUBSIDIARY WITHIN THE MEANING OF SECTION 856(i) OF THE CODE OR
AN ENTITY THAT IS DISREGARDED FOR UNITED STATES FEDERAL INCOME TAX PURPOSES
THAT IS WHOLLY OWNED BY A REIT OR QUALIFIED REIT SUBSIDIARY.  MOREOVER, ANY ATTEMPTED TRANSFER OF THIS
OWNERSHIP CERTIFICATE TO A PERSON OTHER THAN A REIT OR A QUALIFIED REIT
SUBSIDIARY SHALL BE VOID AB INITIO AND THE PURPORTED TRANSFEREE SHALL ACQUIRE NO
RIGHTS IN THIS OWNERSHIP CERTIFICATE.


 


A-2





















 


FIELDSTONE
MORTGAGE INVESTMENT TRUST, SERIES 2005-2


 


	
  Certificate No. 1

  	
   

  	
  Percentage Interest:
  100%

  



 


First Payment Date: 
August 25, 2005


 


Evidencing a fractional undivided equity interest in
the Trust Estate, the property of which consists primarily of the Collateral in
Fieldstone Mortgage Investment Trust, Series 2005-2 (the “Trust”), a
Delaware statutory trust formed by Fieldstone Mortgage Investment Corporation,
a Maryland corporation, as depositor (the “Depositor”), pursuant to the
Agreement referred to below.


 


This certifies that FIELDSTONE
MORTGAGE OWNERSHIP CORP. is the registered owner of the Percentage
Interest referred to above.


 


The Trust was created pursuant to a Trust Agreement
(the “Agreement”) dated as of July 26, 2005, between the Depositor and
U.S. Bank Trust National Association, as owner trustee (the “Owner Trustee,”
which term includes any successor entity under the Agreement), as amended and
restated as of August 4, 2005, among the Depositor, the Owner Trustee and
Wells Fargo Bank, N.A., as trust administrator (the “Trust Administrator”), a
summary of certain of the pertinent provisions of which is set forth
hereinafter.  This Ownership Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Ownership Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound, and
the Transfer and Servicing Agreement dated as of July 1, 2005 (as amended
or supplemented from time to time, the “Transfer and Servicing Agreement”), by
and among the Trust, the Depositor, Wells Fargo Bank, N.A., as trust
administrator (in such capacity, the “Trust Administrator”) and master servicer
(in such capacity, the “Master Servicer”), Fieldstone Servicing Corporation, as
servicer, Chase Home Finance LLC, as subservicer, Fieldstone Investment
Corporation, as seller, and HSBC Bank USA, National Association, as indenture
trustee (the “Indenture Trustee”). 
Distributions on this Ownership Certificate shall be made by the Trust
Administrator, in its capacity as Certificate Paying Agent under the Agreement
and the Transfer and Servicing Agreement.


 


This Ownership Certificate is issued under the
Agreement to which reference is hereby made for a statement of the respective
rights thereunder of the Depositor, the Owner Trustee and the Holder of the
Ownership Certificate and the terms upon which the Ownership Certificate is
executed and delivered.  All terms used
in this Ownership Certificate which are defined in the Agreement shall have the
meanings assigned to them in the Agreement. 
The Trust Estate consists of the Collateral in the Fieldstone Mortgage
Investment Trust, Series 2005-2.  To
the extent not otherwise defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Agreement or the Transfer and Servicing
Agreement.  The rights of the Holder are
subordinated to the rights of the Noteholders, as set forth in the Indenture
dated as of July 1, 2005, among the Trust, Trust Administrator and the
Indenture Trustee.


 


A-3





















 


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 in August 2005, to the
Holder at the close of business on the last Business Day of the month preceding
the month of such Payment Date (the “Record Date”), the amount to be
distributed to Holder on such Payment Date, all as described in the Transfer
and Servicing Agreement.


 


The Holder, by its acceptance of this Ownership
Certificate, agrees that it will look solely to the funds on deposit in the
Collection Account that have been released from the lien of the Indenture for
payment hereunder and that neither the Owner Trustee, the Trust Administrator
or the Certificate Paying Agent in their individual capacities nor the
Depositor is personally liable to the Holder for any amount payable under this
Ownership Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.


 


The Holder acknowledges and agrees that its rights to
receive distributions in respect of this Ownership Certificate are subordinated
to the rights of the Noteholders as described in the Indenture.


 


The Depositor and the Holder, by acceptance of an
Ownership Certificate, agree to treat, and to take no action inconsistent with
the treatment of, the Trust as a Qualified REIT Subsidiary for federal, and any
applicable state and local income tax purposes.


 


The Holder, by its acceptance of an Ownership
Certificate, covenants and agrees that it will not at any time institute
against the Depositor or the Trust, or join in any institution against the
Depositor or the Trust of, any bankruptcy, 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 Ownership Certificate, the Notes, the Agreement or
any other of the Operative Agreements.


 


Distributions on this Ownership Certificate will be made
as provided in the Agreement by the Certificate Paying Agent by wire transfer
or check mailed to the Holder without the presentation or surrender of this
Ownership Certificate or the making of any notation hereon.  Except as otherwise provided in the Agreement
and notwithstanding the above, the final distribution on this Ownership
Certificate will be made after due notice by the Certificate Paying Agent of
the pendency of such distribution and only upon presentation and surrender of
this Ownership Certificate at the office or agency maintained by the
Certificate Registrar for that purpose.


 


Reference is hereby made to the further provisions of
this Ownership 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 Ownership Certificate shall not
entitle the Holder hereof to any benefit under the Agreement or be valid for
any purpose.


 


THIS OWNERSHIP CERTIFICATE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS


 


A-4





















 


CONFLICT OF LAWS
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.


 


A-5





















 


IN WITNESS WHEREOF, the Owner Trustee, on behalf of
the Trust and not in its individual capacity, has caused this Ownership
Certificate to be duly executed.


 


	
   

  	
  FIELDSTONE
  MORTGAGE INVESTMENT

  TRUST, SERIES 2005-2

  
	
   

  	
   

  
	
   

  	
  By:  U.S. BANK TRUST NATIONAL

  ASSOCIATION,

  
	
   

  	
  not in its
  individual capacity but solely as Owner

  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CERTIFICATE OF AUTHENTICATION

  
	
   

  	
   

  
	
   

  	
   

  
	
  This
  is the Ownership Certificate referred to in the within-mentioned Trust
  Agreement.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO
  BANK, N.A.,

  
	
   

  	
  not in its
  individual capacity but solely as Trust

  Administrator

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  
						



 


A-6





















 


FIELDSTONE MORTGAGE INVESTMENT TRUST, SERIES 2005-2


 


OWNERSHIP CERTIFICATE


 


The Ownership Certificate
does not represent an obligation of, or an interest in, the Depositor, the
Master Servicer, the Indenture Trustee, the Owner Trustee, the Trust
Administrator or any Affiliates of any of them and no recourse may be had
against any such parties or their assets, except as expressly set forth or
contemplated herein or in the Agreement or the other Operative Agreements.  In addition, this Ownership 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
Collateral, all as more specifically set forth herein.  A copy of the 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 Agreement permits the
amendment thereof as specified below, provided that any amendment be
accompanied by an Opinion of Counsel to the effect that such amendment complies
with the provisions of the 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 Noteholder or the Indenture
Trustee.  If the purpose of the amendment
is to add or eliminate or change any provision of the Agreement, other than as
specified in the preceding sentence, the amendment shall require the consent of
the Holder, the consent of Noteholders evidencing more than 662/3%
of the Outstanding Balance of the Notes and the Indenture Trustee; provided, however, that no such amendment
shall, as evidenced by an Opinion of Counsel, adversely affect the tax status
of the Trust; and provided, further,
that no such amendment shall (a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on the
Collateral or distributions that shall be required to be made for the benefit
of the Noteholders or the Holder or (b) reduce the aforesaid percentage of
the Outstanding Balance of the Notes required to consent to or to waive the
requirement for the Holder to consent to any such amendment, in either case of
clause (a) or (b) without the consent of the holders of all the
outstanding Notes and the Holder.


 


As provided in the
Agreement and subject to certain limitations therein set forth, including the
limitations set forth in Section 3.03 thereof, the transfer of this
Ownership Certificate is registerable in the Certificate Register upon
surrender of this Ownership Certificate for registration of transfer at the
offices or agencies of the Certificate Registrar, accompanied by a written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon a new Ownership Certificate will be issued to the
designated transferee.  The initial
Certificate Registrar appointed under the Agreement is the Trust Administrator.


 


Except as provided in the
Agreement, the Ownership Certificate is issuable only in a minimum Percentage
Interest of 100%.  No service charge will
be made for any such registration of transfer or exchange, but the Owner
Trustee or the Certificate Registrar may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith or any
expense incurred thereby.


 


A-7





















 


The Owner Trustee, the
Certificate Paying Agent, the Trust Administrator, the Certificate Registrar
and any agent of the Owner Trustee, the Certificate Paying Agent, the Trust
Administrator or the Certificate Registrar may treat the Holder as the owner
hereof for all purposes, and none of the Owner Trustee, the Certificate Paying
Agent, the Trust Administrator, the Certificate Registrar or any such agent
shall be affected by any notice to the contrary.


 


The obligations and
responsibilities created by the Agreement and the Trust created thereby shall
terminate upon the payment to Certificateholders of all amounts required to be
paid to them pursuant to the Trust Agreement and the Transfer and Servicing
Agreement and the disposition of all property held as part of the Trust Estate.


 


A-8





















 


ASSIGNMENT


 


FOR VALUE RECEIVED, the undersigned hereby sell(s) and
assign(s) and transfer(s) unto


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


(Please print or type name and address, including
postal zip code, of assignee and social security number or employer
identification number)


 


	
   

  	
   

  
	
   

  	
   

  



 


the within Certificate stating in the names of the
undersigned in the Securities Register and does hereby irrevocably constitute
and appoint


 


	
   

  	
   

  
	
   

  	
   

  



 


to transfer such Certificate in such Securities
Register of the Trust.


 


I [we] further direct the Securities Registrar to
issue a new Certificate of the same Class of like principal to the above-named
assignee and deliver such Certificate to the following address:


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature by or on
  behalf of Assignor

  
	
   

  	
   

  	
   

  	
   

  
	
  Authorized Officer

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guaranteed

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name of Institution

  	
   

  	
  NOTICE: The
  signature(s) of this assignment must correspond with the name(s) on the face
  of this Certificate without alteration or any change whatsoever. The
  signature must be guaranteed by a participant in the Securities Transfer
  Agents Medallion Program, the New York Stock Exchange Medallion Signature
  Program or the Stock

  
							



 


A-9





















 


	
   

  	
   

  	
  Exchanges Medallion
  Program. Notarized or witnessed signatures are not acceptable as guaranteed
  signatures.

  



 


 


 


A-10





















 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for the
information of the Securities Registrar. 
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 reports and statements should be mailed to 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
			



 


	
  This
  information is provided by

  	
   

  



 


the assignee named above, or __________________________________
as its agent.


 


 


A-11





















 


EXHIBIT B


 


[RESERVED]


 


B-1





















 


EXHIBIT C


 


FORM OF CERTIFICATE OF TRUST OF

FIELDSTONE MORTGAGE INVESTMENT TRUST, SERIES 2005-2


 


THIS Certificate of Trust of Fieldstone Mortgage
Investment Trust, Series 2005-2 (the “Trust”), is being duly executed and
filed by the undersigned, as trustee, to form a statutory trust under the
Delaware Statutory Trust Act (12 DEL. CODE, Sections 3801 et seq.)
(the “Act”).


 


1.                                       NAME.   The name of the statutory trust formed
hereby is “FIELDSTONE MORTGAGE INVESTMENT TRUST, SERIES 2005-2.”


 


2.                                       DELAWARE
TRUSTEE.  The name and business address
of the trustee of the Trust in the State of Delaware are U.S. Bank Trust
National Association, 300 Delaware Avenue, Suite 813, Wilmington, Delaware
19801, Attention:  Corporate Trust.


 


3.                                       EFFECTIVE
DATE.  This Certificate of Trust shall be
effective on July [    ], 2005.


 


IN WITNESS WHEREOF, the undersigned, being the owner
trustee of the Trust, has executed this Certificate of Trust in accordance with
Section 3811(a) of the Act.


 


	
   

  	
  U.S. BANK TRUST NATIONAL ASSOCIATION,

  
	
   

  	
  as Owner Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


C-1





















 


EXHIBIT D-1


 


FORM OF RULE 144A INVESTMENT LETTER


 


 


                                   


Date


 


Wells Fargo Bank, N.A.,


  as
Certificate Registrar


6th Street and Marquette Avenue


Minneapolis, Minnesota 55479


 


Attention: 
Corporate Trust Department


 


	
  Re:

  	
  Fieldstone Mortgage Investment
  Trust, Series 2005-2

  
	
   

  	
  [Ownership Certificate]

  	
   

  



 


Ladies and Gentlemen:


 


In connection with our acquisition of the Fieldstone
Mortgage Investment Trust, Series 2005-2 Ownership Certificate (the “Certificate”),
we certify that (a) we understand that the Certificate has not been
registered under the Securities Act of 1933, as amended (the “Act”), or any state
securities laws and is being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investment in the
Certificate, (c) we have had the opportunity to ask questions of and
receive answers from Fieldstone Mortgage Investment Corporation (the “Depositor”)
concerning the purchase of the Certificate and all matters relating thereto or
any additional information deemed necessary to our decision to purchase the
Certificate, (d) we have not, nor has anyone acting on our behalf,
offered, transferred, pledged, sold or otherwise disposed of the Certificate or
any interest in the Certificate, or solicited any offer to buy, transfer,
pledge or otherwise dispose of the Certificate or any interest in the
Certificate from 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 Certificate under the Act or that
would render the disposition of the Certificate a violation of Section 5
of the Act or any state securities laws or require registration pursuant thereto,
and we will not act, or authorize any person to act, in such manner with
respect to the Certificate and (e) we are a “qualified institutional buyer”
as that term is defined in Rule 144A under the Act (“Rule 144A”).  We are aware that the sale to us is being
made in reliance on Rule 144A.


 


We are acquiring the Certificate for our own account
or for resale pursuant to Rule 144A and understand that such Certificate
may be resold, pledged or transferred only (1) 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


 


D-1-1





















 


transfer is being made in
reliance on Rule 144A or (2) pursuant to another exemption from
registration under the Act.


 


In addition, we hereby certify that we are not an
employee benefit plan or other retirement arrangement that is subject to Section 406
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
or to Section 4975 of the Internal Revenue Code of 1986, as amended (or to
any other substantially similar law) or any entity deemed to hold the plan
assets of the foregoing.


 


We hereby acknowledge that under the terms of the
Amended and Restated Trust Agreement among Fieldstone Mortgage Investment
Corporation, as Depositor, U.S. Bank Trust National Association, as Owner
Trustee, and Wells Fargo Bank, N.A., as Trust Administrator, dated as of August 4,
2005, no transfer of the Certificate shall be permitted to be made to any
person unless the Certificate Registrar has received a certificate from such
transferee in the form hereof.


 


We hereby indemnify the Depositor, Certificate
Registrar and the Owner Trustee against any liability that may result to either
of them if our transfer or other disposition of the Certificate (or any
interest therein) is not exempt from the registration requirements of the Act
and any applicable state securities laws or is not made in accordance with such
federal and state laws.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name of Transferee]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


D-1-2





















 


EXHIBIT D-2


 


FORM OF NON-RULE 144A INVESTMENT LETTER


 


                                   


Date


 


Wells Fargo Bank, N.A.,


  as
Certificate Registrar


6th Street and Marquette Avenue


Minneapolis, Minnesota 55479


 


Attention: 
Corporate Trust Department


 


	
  Re:

  	
  Fieldstone Mortgage Investment
  Trust, Series 2005-2

  
	
   

  	
  [Ownership Certificate]

  	
   

  



 


Ladies and Gentlemen:


 


In connection with our acquisition of the Fieldstone
Mortgage Investment Trust, Series 2005-2 Ownership Certificate (the “Certificate”)
we certify that (a) we understand that the Certificate has not been
registered under the Securities Act of 1933, as amended (the “Act”), or any
state securities laws and is 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 Rule 501(a)(1), (2), (3) or
(7) 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
investment in the Certificate, (c) we have had the opportunity to ask
questions of and receive answers from the Depositor concerning the purchase of
the Certificate and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Certificate, (d) we are
acquiring the Certificate for investment for our own account and not with a
view to any distribution of such Certificate (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificate in
accordance with clause (f) below), (e) we have not offered or sold
any Certificate to, or solicited offers to buy any Certificate from, any
person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action that would result in a violation of Section 5
of the Act or any state securities laws and (f) we will not sell, transfer
or otherwise dispose of any Certificate unless (1) such sale, transfer or
other disposition is made pursuant to an effective registration statement under
the Act and in compliance with any relevant state securities laws 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
Amended and Restated Trust Agreement dated as of August 4, 2005, among
Fieldstone


 


D-2-1





















 


Mortgage Investment
Corporation, as Depositor, U.S. Bank Trust National Association, as Owner
Trustee and Wells Fargo Bank, N.A., as Trust Administrator (the “Trust
Agreement”).


 


In addition, we hereby certify that we are not an
employee benefit plan or other retirement arrangement subject to section 406
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
or to Section 4975 of the Internal Revenue Code of 1986, as amended (or to
any other substantially similar law) or any entity deemed to hold the plan
assets of the foregoing.


 


We hereby acknowledge that under the terms of the
Trust Agreement, no transfer of the Certificate shall be permitted to be made
to any person unless the Certificate Registrar has received a certificate from
such transferee in the form hereof.


 


We hereby indemnify the Owner Trustee, the Depositor
and the Certificate Registrar against any liability that may result to either
of them if our transfer or other disposition of the Certificate (or any
interest therein) is not exempt from the registration requirements of the Act
and any applicable state securities laws or is not made in accordance with such
federal and state laws.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name of Transferee]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


D-2-2





















 


EXHIBIT E


 


U.S. Bank Trust National
Association


300 Delaware Avenue, Suite 813


Wilmington, Delaware
19801


Attention:  Fieldstone 2005-2


 


Wells Fargo Bank, N.A.


9062 Old Annapolis Road


Columbia, Maryland 21045


Attention: 
Fieldstone 2005-2


 


Re:  Fieldstone Mortgage Investment Trust, Series 2005-2


 


Ladies and Gentlemen:


 


This representation and warranty is delivered pursuant
to Section 3.03 of the Amended and Restated Trust Agreement dated as of August 4,
2005 (the “Agreement”), among Fieldstone Mortgage Investment Corporation, as
depositor (the “Depositor”), U.S. Bank Trust National Association, as owner
trustee (the “Owner Trustee”), and Wells Fargo Bank, N.A., as trust
administrator (the “Trust Administrator”), in connection with the transfer by
Fieldstone Mortgage Investment Trust, Series 2005-2 (the “Trust”) to the
undersigned as beneficial owner (the “Beneficial Owner”) of a 100% Percentage
Interest in the Ownership Certificate. Capitalized terms used but not defined
in this document have the meanings ascribed to them in the Agreement.


 


The Beneficial Owner hereby certifies that it has
received a copy of the Agreement and that it understands the restrictions on
transferability of the Ownership Certificate and the indemnity provisions set
forth in Section 3.03 of the Agreement. 
In connection with the transfer of the Ownership Certificate to the
Beneficial Owner, the Beneficial Owner represents and warrants that:


 


(1)                                  The
Beneficial Owner either (i) qualifies for taxation as a real estate
investment trust (a “REIT”) within the meaning of Sections 856 and 857 of the
Internal Revenue Code of 1986, as amended (the “Code”), (ii) is a
qualified REIT subsidiary within the meaning of Section 856(i) of the
Code (a “Qualified REIT Subsidiary”), or (iii) is an entity that is
disregarded for federal income tax purposes that is wholly owned by a REIT or a
Qualified REIT Subsidiary.


 


(2)                                  The
Beneficial Owner hereby agrees to be subject to the indemnification provisions
set out in Section 3.03 of the Agreement.


 


(3)                                  The
Beneficial Owner hereby agrees to be subject to the provisions governing events
of default set out in the Indenture among the Trust, as issuer, Wells Fargo
Bank, N.A., as Trust Administrator, and HSBC Bank USA, National Association, as
Indenture Trustee, dated as of July 1, 2005.


 


E-1





















 


(4)                                  The
Beneficial Owner hereby agrees to notify the Trust within sixty (60) days of
the date on which the Beneficial Owner discovers that it has failed to qualify
as a REIT, a Qualified REIT Subsidiary or an entity that is disregarded for
federal income tax purposes that is wholly owned by a REIT or a Qualified REIT
Subsidiary at any time at which the Beneficial Owner owns the Ownership
Certificate.


 


(5)                                  The
Beneficial Owner is not, and on August 4, 2005, will not be, an employee
benefit plan or other retirement arrangement subject to Section 406 of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 4975
of the Code or any substantially similar applicable law (collectively, a “Plan”)
or a person acting on behalf of any such Plan or investing the assets of any
such Plan to acquire the Ownership Certificate.


 


(6)                                  The
Beneficial Owner hereby acknowledges that under the terms of the Agreement, no
transfer of the Ownership Certificate shall be permitted to be made to any
person unless the Certificate Registrar has received a certificate from such
transferee to the effect that such transferee is not a Plan and is not using
the assets of any Plan to acquire the Ownership Certificate.


 


(7)                                  The
Beneficial Owner will not transfer the Ownership Certificate to any person or
entity (i) as to which the Purchaser has reason to believe does not
satisfy the requirements set forth in this affidavit, and (ii) without
obtaining from the prospective Purchaser an affidavit substantially in this
form and providing to the Certificate Registrar a written statement
substantially in the form of Exhibit F to the Agreement.


 


(8)                                  The
Holder of the Ownership Certificate will not take any action or inaction that
would cause the Trust to be subject to any United States federal income
taxation.


 


[SIGNATURE PAGE FOLLOWS]


 


E-2





















 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  FIELDSTONE MORTGAGE OWNERSHIP

  CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


E-3





















 


EXHIBIT F


 


FORM OF REPRESENTATION AND WARRANTY REGARDING TRANSFEREE’S

STATUS AS A REIT OR QUALIFIED REIT SUBSIDIARY


 


This representation and warranty is delivered pursuant
to Section 3.03 of the Trust Agreement dated as of August 4, 2005
(the “Agreement”), among Fieldstone Mortgage Investment Corporation, as
depositor (the “Depositor”), U.S. Bank Trust National Association, as owner
trustee (the “Owner Trustee”), and Wells Fargo Bank, N.A., as trust
administrator (the “Trust Administrator”), in connection with the transfer by
[Fieldstone Mortgage Investment Trust, Series 2005-2 (the “Trust”), to the
undersigned] [the [transferor] to the undersigned] as beneficial owner (the “Beneficial
Owner”) of a 100% Percentage Interest in the Ownership Certificate.  Capitalized terms used but not defined in
this document have the meanings ascribed to them in the Agreement.


 


The Beneficial Owner hereby certifies that it has
received a copy of the Agreement and that it understands the restrictions on
transferability of the Ownership Certificate set forth in Section 3.03 of
the Agreement and the indemnity provisions set forth in Section 7.02 of
the Agreement.  In connection with the
transfer of the Ownership Certificate to the Beneficial Owner, the Beneficial
Owner represents and warrants that:


 


(1)                                  The
Beneficial Owner either (i) qualifies for taxation as a real estate
investment trust (a “REIT”) within the meaning of Sections 856 and 857 of the
Internal Revenue Code of 1986, as amended (the “Code”), (ii) is a
qualified REIT subsidiary within the meaning of Section 856(i) of the
Code (a “Qualified REIT Subsidiary”), or (iii) an entity that is
disregarded for federal income tax purposes that is wholly owned by a REIT or a
Qualified REIT Subsidiary.


 


(2)                                  The
Beneficial Owner hereby agrees to be subject to the indemnification provisions
set out in Section 7.02 of the Agreement, and hereby warrants that the
Beneficial Owner shall indemnify the Trust for any income tax imposed upon the
Trust due to the Beneficial Owner’s failure to qualify as a REIT, a Qualified
REIT Subsidiary, or an entity that is disregarded for federal income tax
purposes that is wholly owned by a REIT or a Qualified REIT Subsidiary at any
time at which such Beneficial Owner owns the Ownership Certificate.


 


(3)                                  The
Beneficial Owner hereby agrees to be subject to the provisions governing events
of default set out in the Indenture among Fieldstone Mortgage Investment Trust,
Series 2005-2 (the “Trust”), as issuer, Wells Fargo Bank, N.A., as trust
administrator and HSBC Bank USA, National Association, as indenture trustee,
dated as of July 1, 2005.


 


(4)                                  The
Beneficial Owner hereby agrees to notify the Trust within sixty (60) days of
the date on which the Beneficial Owner discovers that it has failed to qualify
as a REIT, a Qualified REIT Subsidiary, or an entity that is disregarded for
federal income tax purposes that is wholly owned by a REIT or a Qualified REIT


 


F-1





















 


Subsidiary at any time at which the Beneficial Owner owns the Ownership
Certificate.


 


(5)                                  The
Beneficial Owner is not, and on               
[date of transfer] will not be, an employee benefit plan or other retirement
arrangement subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Code or
any substantially similar applicable law (collectively, a “Plan”) or a person
acting on behalf of any such Plan or investing the assets of any such Plan to
acquire the Ownership Certificate.


 


(6)                                  The
Beneficial Owner hereby acknowledges that under the terms of the Agreement, no
transfer of the Ownership Certificate shall be permitted to be made to any
person unless the Certificate Registrar has received a certificate from such
transferee to the effect that such transferee (i) is not a Plan and is not
using the assets of any Plan to acquire the Ownership Certificate and (ii) is
a REIT, a Qualified REIT Subsidiary or an entity that is disregarded for
federal income tax purposes that is wholly owned by a REIT or a Qualified REIT
Subsidiary.


 


(7)                                  The
Beneficial Owner will not transfer the Ownership Certificate to any person or
entity (i) as to which the Purchaser has reason to believe does not
satisfy the requirements set forth in this affidavit, and (ii) without
obtaining from the prospective Purchaser an affidavit substantially in this
form and providing to the Certificate Registrar a written statement
substantially in the form of Exhibit F to the Agreement.


 


(8)                                  The
Holder of the Ownership Certificate will not take any action or inaction that
would cause the Trust to be subject to any United States federal income
taxation.


 


F-2