**Exhibit10.22**

 

 

TRUST AGREEMENT

 

dated as of August 4,2004

 

among

 

MORTGAGEIT, INC.,as a Depositor

 

and

 

MORTGAGEIT HOLDINGS,INC.,as a Depositor

 

and

 

WILMINGTON TRUST COMPANY,as Owner Trustee

 

MORTGAGEIT SPV I

 

 

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TABLE OF CONTENTS

 
| ARTICLE I DEFINITIONS                                                                                       |                                                        |
|-------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------|
|                                                                                                        |                                                        |   |
| ARTICLE II AUTHORITY TO  EXECUTE AND PERFORM VARIOUS DOCUMENTS; DECLARATION OF STATUTORY TRUST BY THE  BANK |                                                        |
|                                                                                                        |                                                        |   |
| SECTION  2.1.                                                                                               | Declaration  of Statutory Trust by the Bank                 |   |
| SECTION  2.2.                                                                                               | Transfer  of Trust Estate to Owner Trustee                  |   |
| SECTION  2.3.                                                                                               | Authority  to Execute and Perform Various Documents         |   |
| SECTION  2.4.                                                                                               | Execution  and Delivery of Owner Trust Certificates.        |   |
| SECTION 2.5.                                                                                                | Activities of the  Trust                                    |   |
| SECTION  2.6.                                                                                               | Status  of Sub-Trust Estates and Sub-Trusts                 |   |
|                                                                                                        |                                                        |   |
| ARTICLE III RECEIPT,  DISTRIBUTION AND APPLICATION  OF  INCOME FROM THE TRUST ESTATE                   |                                                        |
|                                                                                                        |                                                        |   |
| SECTION 3.1.                                                                                                | Distribution of  Payments                                   |   |
| SECTION  3.2.                                                                                               | Access  to Certain Documentation and Information            |   |
| SECTION  3.3.                                                                                               | Compliance  with Withholding Requirements                   |   |
| SECTION  3.4.                                                                                               | Reimbursement  for Cross-Payments                           |   |
|                                                                                                        |                                                        |   |
| ARTICLE IV DUTIES OF THE  OWNER TRUSTEE                                                                     |                                                        |
|                                                                                                        |                                                        |   |
| SECTION  4.1.                                                                                               | Notice  of Certain Events: Action by the Owner Trustee      |   |
| SECTION  4.2.                                                                                               | Action  Required Only if Owner Trustee is Indemnified       |   |
| SECTION  4.3.                                                                                               | No  Duties Except as Specified in Agreement or Instructions |   |
|                                                                                                        |                                                        |   |
| ARTICLE V THE OWNER TRUSTEE                                                                                 |                                                        |
|                                                                                                        |                                                        |   |
| SECTION  5.1.                                                                                               | Acceptance  of Trust and Duties                             |   |
| SECTION  5.2.                                                                                               | Limited  Representations or Warranties of the Owner Trustee |   |
| SECTION  5.3.                                                                                               | Certain  Duties and Responsibilities                        |   |
| SECTION 5.4.                                                                                                | Reliance:  Advice of Counsel                                |   |
| SECTION  5.5.                                                                                               | Not  Acting in Individual Capacity                          |   |
| SECTION  5.6.                                                                                               | Books and  Records; Tax Election                            |   |
|                                                                                                        |                                                        |   |
| ARTICLE VI COMPENSATION,  REIMBURSEMENT AND  INDEMNIFICATION OF  THE OWNER TRUSTEE                     |                                                        |
|                                                                                                        |                                                        |   |
| SECTION  6.1.                                                                                               | Compensation  of the Owner Trustee                          |   |
| SECTION  6.2.                                                                                               | Reimbursement  and Indemnification of the Owner Trustee     |   |
| SECTION 6.3.                                                                                                | Not  Obligations of the Trust                               |   |
|                                                                                                        |                                                        |   |
| ARTICLE VII DISSOLUTION  AND TERMINATION OF TRUST                                                           |                                                        |
|                                                                                                        |                                                        |   |
| SECTION 7.1.                                                                                                | Termination                                                 |   |

 

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| SECTION  7.2.                                                                                | Further  Assurances by the Owner Trustee upon Termination.                                |   |
|----------------------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------|--------|
| SECTION  7.3.                                                                                | Insolvency  of a Certificateholder                                                        |   |
| SECTION 7.4.                                                                                 | Event of Default                                                                          |   |
|                                                                                         |                                                                                      |   |
| ARTICLE VIII SUCCESSOR  OWNER TRUSTEES, CO-OWNER TRUSTEES  AND  SEPARATE OWNER TRUSTEES |                                                                                      |
|                                                                                         |                                                                                      |   |
| SECTION  8.1.                                                                                | Resignation  of the Owner Trustee; Appointment of Successor                               |   |
| SECTION  8.2.                                                                                | Co-Trustees  and Separate Trustee                                                         |   |
| SECTION  8.3.                                                                                | Notice                                                                                    |   |
|                                                                                         |                                                                                      |   |
| ARTICLE IX SUPPLEMENTS AND  AMENDMENTS                                                       |                                                                                      |
|                                                                                         |                                                                                      |   |
| SECTION 9.1.                                                                                 | Supplements and  Amendments                                                               |   |
| SECTION 9.2.                                                                                 | Limitation on  Amendments                                                                 |   |
| SECTION  9.3.                                                                                | Additional  Amendment Provisions                                                          |   |
|                                                                                         |                                                                                      |   |
| ARTICLE X REPRESENTATIONS,  WARRANTIES AND COVENANTS OF THE DEPOSITOR                        |                                                                                      |
|                                                                                         |                                                                                      |   |
| SECTION  10.1.                                                                               | Representations  and Warranties of the Depositor                                          |   |
| SECTION 10.2.                                                                                | Accrued Interest,  Etc.                                                                   |   |
| SECTION  10.3.                                                                               | Additional  Covenants of the Depositors                                                   |   |
|                                                                                         |                                                                                      |   |
| ARTICLE XI TRANSFER OF  INTEREST OF THE OWNER TRUST CERTIFICATES                             |                                                                                      |
|                                                                                         |                                                                                      |   |
| SECTION  11.1.                                                                               | Registration  of Transfer and Exchange of Owner Trust Certificates                        |   |
| SECTION  11.2.                                                                               | Mutilated,  Destroyed, Lost or Stolen Owner Trust Certificates                            |   |
| SECTION 11.3.                                                                                | Persons Deemed  Owners                                                                    |   |
| SECTION  11.4.                                                                               | Access to  Names and Addresses                                                            |   |
| SECTION  11.5.                                                                               | Actions of  Certificateholders                                                            |   |
| SECTION 11.6.                                                                                | Transferee’s  Agreement                                                              |   |
|                                                                                         |                                                                                      |   |
| ARTICLE XII  MISCELLANEOUS                                                                   |                                                                                      |
|                                                                                         |                                                                                      |   |
| SECTION  12.1.                                                                               | No  Legal Title to Trust Estate in the Certificateholder                                  |   |
| SECTION  12.2.                                                                               | Action  by the Owner Trustee is Binding                                                   |   |
| SECTION  12.3.                                                                               | Limitation  on Rights of Others                                                           |   |
| SECTION 12.4.                                                                                | Notices                                                                                   |   |
| SECTION 12.5.                                                                                | Severability                                                                              |   |
| SECTION  12.6.                                                                               | Limitation  on the Depositors’ and the Certificateholders’ Respective Liability |   |
| SECTION 12.7.                                                                                | Separate  Counterparts                                                                    |   |
| SECTION 12.8.                                                                                | Successors and  Assigns                                                                   |   |
| SECTION 12.9.                                                                                | Headings                                                                                  |   |
| SECTION 12.10.                                                                               | Governing Law                                                                             |   |
| SECTION 12.11.                                                                               | Administration  of Trust.                                                                 |   |
| SECTION  12.12.                                                                              | Performance  by the Depositor or the Administrator                                        |   |
| SECTION 12.13.                                                                               | No Implied Waiver                                                                         |   |

 

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| SECTION 12.14. | Third Party  Beneficiary        |   |
|----------------|---------------------------------|--------|
| SECTION 12.15. | References                      |   |
| SECTION 12.16. | UBS Cash Account                |   |
|           |                            |
| Exhibit A-1    | Form of  REIT Certificate       |   |
|           |                            |   |
| Exhibit A-2    | Form of TRS  Certificate        |   |
|           |                            |   |
| Exhibit B-1    | Form of  Transferor Certificate |   |
|           |                            |   |
| Exhibit B-2    | Form of  Transferee Certificate |   |
|           |                            |   |
| Exhibit C-1    | Form of  Transfer Affidavit     |   |
|           |                            |   |
| Exhibit C-2    | Form of  Transferor Affidavit   |   |
|                |                                 |        |  |

 

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**TRUST AGREEMENT**

 

THIS TRUSTAGREEMENT, dated as of August 4, 2004 (the “Agreement”), by and amongMORTGAGEIT, INC., a New York corporation (“MortgageIT”), MORTGAGEITHOLDINGS, INC., a Maryland corporation (“MortgageIT Holdings”, andtogether with MortgageIT, the “Depositors” (and each individually, a “Depositor”)),and WILMINGTON TRUST COMPANY, a Delaware banking corporation acting hereundernot in its individual capacity but solely as Owner Trustee (the “OwnerTrustee”).

 

**W I T N E S S E T H**:

** **

WHEREAS, theDepositors desire to form the trust to be created hereby (the “Trust”),which trust shall have two series (as such term is used in Section 3806(b)(2)of the Statutory Trust Statute) and such series shall be referred to herein as“Sub-Trusts”.

 

WHEREAS,MortgageIT Holdings, as a Depositor, desires to form the sub-trust createdhereby (the Trust acting with respect to such Sub-Trust, the “REIT Sub-Trust”)for the purpose of (i) accepting from such Depositor, and holding for thebenefit of the holders of the REIT Certificates, the REIT Trust Estate; (ii)issuing pursuant to a Note Purchase and Security Agreement, dated as of thedate hereof between the REIT Sub-Trust, UBS and each Person party thereto as aPurchaser or a Noteholder (as amended from time to time, the “Note PurchaseAgreement”) promissory notes (the “Notes”), secured by, among otherthings, a lien on the certain mortgage loans pledged pursuant to the NotePurchase Agreement; (iii) issuing certificates evidencing beneficial ownershipinterests in the REIT Sub-Trust (such certificates, the “REIT Certificates”);(iv) consummating certain transactions contemplated by, and performing under,the Trust Documents and (v) engaging in certain activities incidental tothe foregoing.

 

WHEREAS,MortgageIT, as a Depositor, desires to form the Sub-Trust to be created hereby(the Trust acting with respect to such Sub-Trust, the “TRS Sub-Trust”)for the purpose of (i) accepting from the Depositor, and holding for thebenefit of the holders of the TRS Certificates, the TRS Trust Estate; (ii)entering into a Mortgage Loan Repurchase Agreement, dated as of the date hereofbetween the TRS Sub-Trust and UBS (as amended from time to time, the “LoanRepurchase Agreement”), a Mortgage Loan Purchase Agreement, dated as of thedate hereof between the TRS Sub-Trust and UBS (as amended from time to time,the “Loan Purchase Agreement”), and a Mortgage Loan ParticipationAgreement, dated as of the date hereof between the TRS Sub-Trust and UBS (as amendedfrom time to time, the “Loan Participation Agreement”), (iii) issuingcertificates evidencing beneficial ownership interests in the TRS Sub-Trust(such certificates, the “TRS Certificates” and, together with the REITCertificates, the “Owner Trust Certificates” or the “Certificates”),(iv) consummating certain transactions contemplated by, and performing under,the Trust Documents and (v) engaging in certain activities incidental tothe foregoing.

 

WHEREAS,Wilmington Trust Company, a Delaware banking corporation, is willing to act asOwner Trustee hereunder (in its individual capacity, the “Bank”, andsolely in its capacity as Owner Trustee hereunder, with its successors ininterest in such capacity and its permitted assigns, the “Owner Trustee”)and to accept the Trust created hereby.

 

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NOW, THEREFORE, inconsideration of the premises and of the mutual agreements herein contained andof other good and valuable consideration, the receipt and sufficiency of whichare hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

All capitalizedterms used herein and not otherwise defined, unless the context otherwiserequires, shall have the meanings set forth below or in the Definitions Listattached as Schedule 1 to the Loan Sale Agreement, dated as of August 4, 2004,among MortgageIT, MortgageIT Holdings and the Trust.  In the eventthat a capitalized term used herein is defined both in this Agreement and inthe Definitions List, the definition appearing herein shall control.

 

“Agreement”shall mean this Trust Agreement, as the same may be amended or supplementedfrom time to time.

 

“Applicant”shall have the meaning specified in Section 11.4 of this Agreement.

 

“Bank”shall have the meaning assigned to that term in the preamble above.

 

“Officers’Certificate” shall mean a certificate signed on behalf of the applicableentity by two officers, one of whom shall be the Chairman of the Board, theVice Chairman of the Board, the President, any Vice President or ManagingDirector, an Assistant Vice President or any other authorized officer (howeverdenominated) and the other of which shall be by the Treasurer, the Secretary,one of the Assistant Treasurers or Assistant Secretaries, or, in either case,another officer customarily performing functions similar to those performed byany of the above designated officers or, with respect to a particular matter,any other officer to whom such matter is referred because of such officer’sknowledge of and familiarity with the particular subject; provided, however,that with respect to the Trust, such certificate may be signed on behalf of theTrust by an authorized signatory of the Owner Trustee or the Administrator.

 

“Plan”shall have the meaning specified in Section 11.1(c) of this Agreement.

 

“Record Date”shall mean, with respect to the Owner Trust Certificates for any Payment Date,the last Business Day of the month immediately preceding such Payment Date.

 

“ResponsibleOfficer” shall mean any officer of the Owner Trustee assigned to the CorporateTrust Office with direct responsibility for the administration of thisAgreement and also, with respect to a particular matter, any other officer towhom such matter is referred because of such officer’s knowledge of andfamiliarity with the particular subject, and, in the case of any certificationrequired to be signed by a Responsible Officer, such an officer whose nameappears on a list of corporate trust officers furnished to each Depositor andUBS by the Owner Trustee, as such list may from time to time be amended.

 

“Transfer”shall mean any direct or indirect transfer or other form of assignment of anyOwner Trust Certificate.

 

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ARTICLE II

 

AUTHORITY TO EXECUTE ANDPERFORM VARIOUS DOCUMENTS;DECLARATION OF STATUTORY TRUST BY THE BANK

 

SECTION 2.1.        Declarationof Statutory Trust by the Bank.  The Trust will be known as “MortgageIT SPV I”, in which name theOwner Trustee may conduct the affairs of the Trust.  Wilmington Trust Company is hereby appointed to hold and agreesto hold the Trust Estate as Owner Trustee in trust upon the terms andconditions and for the use and benefit of the Certificateholders as herein setforth.

 

It is theintention of the parties hereto that the trust created by this Agreementconstitute a “statutory trust” under the Statutory Trust Statute (definedbelow) and that this Agreement constitute the governing instrument of suchstatutory trust.  This Declaration ofStatutory Trust is not intended to create a partnership, a joint-stockassociation, a “taxable mortgage pool” or any association taxable as acorporation for federal income tax purposes. On the date hereof, the Owner Trustee shall file the Certificate ofTrust required by Section 3810(a) of the Statutory Trust Statute, in theoffice of the Secretary of State of the State of Delaware (the “Certificateof Trust”).  It is the furtherintention of the parties that the trust created under this Agreement be a“series trust” within the meaning of Section 3806(b)(2) of the Statutory  Trust Statute and have two series of theTrust within the meaning of Section 3806(b)(2) of the Statutory Trust Statute(each a “Sub-Trust” of the Trust). As such, separate and distinct records shall be maintained by theAdministrator on behalf of the Trust for each Sub-Trust, and each Sub-Trustshall be held and accounted for by the Administrator on behalf of the Trustseparately from the other Sub-Trust. The debts, liabilities, obligations and expenses incurred, contractedfor, or otherwise existing with respect to a particular Sub-Trust shall beenforceable against the related Sub-Trust Estate only and not against theassets of the Trust generally, or the assets of the other Sub-Trust.  None of the debts, liabilities, obligationsand expenses incurred, contracted for, or otherwise existing with respect to aparticular Sub-Trust shall be enforceable against the assets of the otherSub-Trust.  Effective as of the datehereof, the Owner Trustee shall have all the rights, powers and duties set forthherein and in the Statutory Trust Statute with respect to accomplishing thepurposes of the Trust.  For purposes ofthis Declaration of Statutory Trust, “Statutory Trust Statute” meansChapter 38 of Title 12 of the Delaware Code, 12 Del. C. § 3801 *et seq*.as the same may be amended or supplemented from time to time.

 

SECTION 2.2.        Transferof Trust Estate to Owner Trustee.  (a) Effective as of the date hereof, MortgageIT Holdings hereby assigns,transfers, and otherwise conveys to, and deposits with, the REIT Sub-Trust, theREIT Trust Estate, and MortgageIT hereby assigns, transfers, and otherwiseconveys to, and deposits with, the TRS Sub-Trust, the TRS Trust Estate, suchconveyances to be made in exchange for the related Owner Trust Certificates.

 

In connection withsuch transfer and assignment, MortgageIT shall deliver to, and deposit with theTRS Sub-Trust, and MortgageIT Holdings shall deliver to, and deposit with theREIT Sub-Trust, the documents or instruments with respect to each Mortgage Loanso transferred and assigned in accordance with Section 2 of the CustodialAgreement.

 

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(b)           Theconveyance of the assets constituting the related TRS Sub-Trust Estate byMortgageIT as contemplated hereby is absolute and is intended by the parties toconstitute a sale of the assets constituting the TRS Sub-Trust Estate byMortgageIT to the TRS Sub-Trust.  Theconveyance of the assets constituting the related REIT Sub-Trust Estate byMortgageIT Holdings as contemplated hereby is absolute and is intended by theparties to constitute a sale of the assets constituting the REIT Sub-TrustEstate by MortgageIT Holdings to the REIT Sub-Trust.  Further, it is not intended that either conveyance be deemed apledge of security for a loan.  Ifeither conveyance is deemed to be a pledge of security for a loan, however,each Depositor intends that the rights and obligations of the parties to suchloan shall be established pursuant to the terms of this Agreement.  MortgageIT also intends and agrees that, insuch event, (i) this Agreement shall constitute a security agreement underapplicable law, and (ii) MortgageIT shall be deemed to have granted to the TRSSub-Trust a first priority security interest in such Depositor’s entire right,title and interest in and to the assets constituting the TRS Sub-TrustEstate.  MortgageIT Holdings alsointends and agrees that, in such event, (i) this Agreement shall constitute asecurity agreement under applicable law, and (ii) MortgageIT Holdingsshall be deemed to have granted to the REIT Sub-Trust a first priority securityinterest in such Depositor’s entire right, title and interest in and to theassets constituting the REIT Sub-Trust Estate. Each Depositor shall, to the extent consistent with this Agreement, takesuch reasonable actions as may be necessary to ensure that, if this Agreementwere deemed to create a security interest in the related Sub-Trust Estate, suchsecurity interest would be a perfected security interest of first priorityunder applicable law and will be maintained as such throughout the life of thisAgreement.

 

(c)           TheTRS Sub-Trust hereby acknowledges the receipt by it of the TRS Sub-Trust Estateand such other documents and instruments referenced above, and declares that itholds and will hold the TRS Sub-Trust Estate and such documents and instrumentsand that it holds and will hold all other assets and documents to be includedin the TRS Sub-Trust Estate, in trust for the exclusive use and benefit of therespective present and future Holders of the TRS Certificates.  The REIT Sub-Trust hereby acknowledges thereceipt by it of the REIT Sub-Trust Estate and such other documents andinstruments referenced above, and declares that it holds and will hold the REITSub-Trust Estate and such documents and instruments and that it holds and willhold all other assets and documents to be included in the REIT Sub-TrustEstate, in trust for the exclusive use and benefit of the respective presentand future Holders of the REIT Certificates.

 

(d)           Exceptas expressly provided in Section 7.1, neither Depositor nor anyCertificateholder shall be able to revoke the Trust established hereunder.  Except as provided in Sections 2.3, and 7.1hereof, the Owner Trustee shall not assign, sell, dispose of or transfer anyinterest in, nor may either Depositor or any Certificateholder withdraw fromthe Trust, the assets constituting the Trust Estate.

 

(e)           Pursuantto Section 2.01 of the Loan Sale Agreement, MortgageIT, as a seller under theLoan Sale Agreement, may make capital contributions to the TRS Sub-Trust inconnection with each sale of TRS Mortgage Loans and MortgageIT Holdings, as aseller under the Loan Sale Agreement, may make capital contributions to theREIT Sub-Trust in connection with each sale of REIT Mortgage Loans, in eachcase, in an amount specified in Section 2.01 of the Loan Sale Agreement.

 

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SECTION 2.3.        Authorityto Execute and Perform Various Documents.  The Trust shall have the power andauthority, and each Depositor hereby authorizes and directs the Owner Trusteeon behalf of the Trust or (in the case of tax administration matters, itsagent), (i) to execute and deliver the Trust Documents to which the Trust is aparty and all other agreements, documents, instruments and certificatescontemplated to be executed and delivered by the Trust pursuant to the TrustDocuments, including, but not limited to the letter agreement dated as ofAugust 4, 2004 from GMAC Mortgage Corporation and acknowledged by the Trust,MortgageIT, MortgageIT Holdings and UBS Real Estate Securities, Inc. and,pursuant to the terms of the Note Purchase Agreement, to execute, issue anddeliver to UBS the Notes in the form provided to the Owner Trustee by the Administrator;(ii) to execute and deliver the REIT Certificates to MortgageIT Holdings andthe TRS Certificates to MortgageIT; (iii) as and to the extent provided in theNote Purchase Agreement, to pledge the REIT Trust Estate as security forrepayment of the Notes and, in connection therewith, to deliver (or cause to bedelivered) to UBS each of the documents and instruments provided for in theNote Purchase Agreement; (iv) as and to the extent provided in the LoanRepurchase Agreement, the Loan Purchase Agreement and the Loan ParticipationAgreement, to sell the TRS Trust Estate under such agreements and, inconnection therewith, to deliver (or cause to be delivered) to UBS each of thedocuments and instruments provided for in the Loan Repurchase Agreement, theLoan Purchase Agreement and the Loan Participation Agreement; (v) to takewhatever action shall be required to be taken by the Trust by the terms of, andexercise its rights and perform its duties under, each of the documents,agreements, instruments and certificates referred to in clauses (i) through(iv) above as set forth in such documents, agreements, instruments andcertificates and (vi) subject to the terms of this Agreement, to take suchother action in connection with the foregoing as the Certificateholders mayfrom time to time direct; provided, however, that the OwnerTrustee shall have no duty to perform the obligations of the Trust except asexpressly set forth in this Agreement and provided, further, that upon writtennotice from UBS of the occurrence and continuation of a default or an Event ofDefault under any of the Facility Agreements, the Owner Trustee will no longertake direction from the Certificateholders and shall instead take directionfrom UBS until written notice from UBS to the contrary.  The parties agree that compliance by theOwner Trustee with instruction from UBS as contemplated under this TrustAgreement shall not constitute a violation of the Owner Trustee’s duties to theCertificateholders.  Further, in noevent shall the Owner Trustee be deemed to owe any fiduciary duties to UBS.

 

SECTION 2.4.        Executionand Delivery of Owner Trust Certificates.  (a) The Owner Trustee on behalf of the Trustshall, on the date hereof execute and cause to be authenticated and deliveredto or upon the order of (i) MortgageIT Holdings, as a Depositor, the REITCertificates evidencing the entire beneficial ownership of the REIT Sub-Trustand (ii) MortgageIT, as a Depositor, the TRS Certificates evidencing theentire beneficial ownership of the TRS Sub-Trust.  The Owner Trust Certificates shall evidence separate beneficialownership interests in each of the two Sub-Trusts of the Trust and the relatedSub-Trust Estates.  The rights of theCertificateholders to receive distributions from the proceeds of the Trust inrespect of the Owner Trust Certificates shall be as set forth in thisAgreement.

 

(b)           TheOwner Trust Certificates will be substantially in the forms attached hereto as ExhibitA-1 and Exhibit A-2; provided, however, that any ofthe Owner Trust Certificates may at the request of any Certificateholder beissued with appropriate insertions, omissions, substitutions and variations,and may have imprinted or otherwise reproduced thereon

 

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such legend or legends, consistent with the provisions of thisAgreement, as may be required to comply with any law or with rules orregulations pursuant thereto, or with the rules of any securities market inwhich the Owner Trust Certificates are admitted to trading, or to conform togeneral usage.

 

(c)           EachOwner Trust Certificate may be printed or be in typewritten or similar form,and each Owner Trust Certificate shall, upon original issue, be executed by theOwner Trustee and authenticated by the Certificate Registrar and delivered toor upon the order of the related Depositor. All Owner Trust Certificates shall be executed by manual signature onbehalf of the Trust by an authorized officer of the Owner Trustee, notindividually, but solely as Owner Trustee hereunder. Owner Trust Certificatesbearing the signatures of individuals who were at any time the proper officersof the Owner Trustee shall bind the Trust, notwithstanding that suchindividuals or any of them have ceased to hold such offices prior to thedelivery of such Owner Trust Certificates or did not hold such offices at thedate of such Owner Trust Certificates. No Owner Trust Certificates shall be entitled to any benefit under thisAgreement, or be valid for any purpose, unless there appears on such OwnerTrust Certificate a certificate of authentication in the form set forth on thesignature page of the form of Owner Trust Certificates attached as Exhibit A,executed by the Certificate Registrar by manual signature, and such certificateof authentication upon any Owner Trust Certificate shall be conclusiveevidence, and the only evidence, that such Owner Trust Certificate has beenduly authenticated and delivered hereunder. All Owner Trust Certificates shall be dated the date of their authentication.

 

SECTION 2.5.        Activitiesof the Trust.  Itis the intention of the parties hereto that the Trust shall not engage in anybusiness or activities other than in connection with, or relating to, thepurposes specified in Section 2.3. The operations of the Trust will beconducted in accordance with the following standards (and each Depositor herebyagrees to use its best efforts to cause the operations of the Trust to beconducted in accordance herewith):

 

(i)            The Trust will observe allprocedures required by this Agreement.

 

(ii)           Except as otherwise provided inSections 4.1 and 4.3, the business and affairs of the Trust will be managed byor under the direction of the Administrator or the Owner Trustee.  Except as otherwise expressly provided inthis Agreement and in the case of MortgageIT acting as the Administrator,neither Depositor, in such capacity, will have any authority to act for, or toassume any obligation or responsibility on behalf of, the Trust.

 

(iii)          The Administrator will keep for each Sub-Trustcorrect and complete books and records of accounts and minutes of the meetingsand other proceedings of such Sub-Trust, separate from those of the otherSub-Trust, each Depositor or any subsidiary, affiliate or separate account ofeach Depositor.  Any such resolutions,agreements and other instruments will be continuously maintained by theAdministrator as official records of the Trust.

 

(iv)          Each of the Depositors and eachSub-Trust will provide for its own operating expenses and liabilities from itsown funds.  General overhead andadministrative expenses of each Sub-Trust will not be charged or otherwiseallocated to

 

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either Depositor (except indirectly, insofar as suchDepositor owns the respective Owner Trust Certificate) or the other Sub-Trustand such expenses of either Depositor will not be charged or otherwiseallocated to the Trust or either Sub-Trust.

 

(v)           Each Sub-Trust will conduct itsbusiness under names or tradenames so as not to mislead others as to theidentity of the Trust and each Sub-Trust. Without limiting the generality of the foregoing, all oral and writtencommunications, including letters, invoices, contracts, statements, and applicationswill be made solely in the name of the applicable Sub-Trust if related to aSub-Trust.  The Depositors, the Trustand each Sub-Trust will have separate stationary and other business forms.

 

(vi)          There will be no guarantees made bythe Trust or either Sub-Trust with respect to obligations of eitherDepositor.  There will not be anyindebtedness relating to borrowings or loans between the Trust or eitherSub-Trust and either Depositor.

 

(vii)         The TRS Sub-Trust will act solely inits name and through its or the Owner Trustee’s duly authorized officers oragents in the conduct of its business. The TRS Sub-Trust will not: (a) operate or purport to operate as anintegrated, single economic unit with respect to MortgageIT or any otheraffiliated or unaffiliated entity; (b) seek or obtain credit or incur anyobligation to any third party based upon the assets of MortgageIT; or (c)induce any such third party to reasonably rely on the creditworthiness ofMortgageIT or any other affiliated or unaffiliated entity.  The REIT Sub-Trust will act solely in itsname and through its or the Owner Trustee’s duly authorized officers or agentsin the conduct of its business.  TheREIT Sub-Trust will not: (a) operate or purport to operate as anintegrated, single economic unit with respect to MortgageIT Holdings or anyother affiliated or unaffiliated entity; (b) seek or obtain credit or incur anyobligation to any third party based upon the assets of MortgageIT Holdings; or(c) induce any such third party to reasonably rely on the creditworthiness ofMortgageIT Holdings or any other affiliated or unaffiliated entity.

 

(viii)        The Trust will maintain its principalplace of business in the State of Delaware.

 

(ix)           The Trust, each Sub-Trust and eachDepositor shall keep separate their respective funds and other assets and shallnot commingle such funds and other assets with those of any other Affiliatesthereof.

 

(x)            If and to the extent applicable, theAdministrator shall cause the preparation of financial statements of eachSub-Trust that are separate from those of each Depositor and any otherAffiliates (although it may be presented as part of the consolidated financialstatements of an Affiliate).

 

(xi)           The Trust will not engage in anytransaction with an Affiliate on any terms other than would be obtained in anarm’s-length transaction with a non-Affiliate.

 

SECTION 2.6.        Statusof Sub-Trust Estates and Sub-Trusts.  The Holders of the Owner Trust Certificateshereby acknowledge and agree that, for purposes of the Bankruptcy Code, eachSub-Trust Estate shall be considered separate and distinct property of therelated

 

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Sub-Trust and, further, that each Sub-Trust shall be considered ashaving no interest of any type in the property subject to the Lien of the otherSub-Trust (including its related Sub-Trust Estate).  The Holders further agree that the foregoing shall be considereda “subordination agreement” within the meaning of Section 510 of the BankruptcyCode.

 

ARTICLE III

 

RECEIPT, DISTRIBUTION ANDAPPLICATION OF INCOME FROM THE TRUST ESTATE

 

SECTION 3.1.        Distributionof Payments. Pursuant to the terms of the Trust Documents to which the TRS Sub-Trustis a party, after payment by the TRS Sub-Trust of all amounts owed to theNoteholders, UBS, the TRS Servicer, the Master Servicer and, pursuant toSection 3.4 hereof, the REIT Sub-Trust and MortgageIT Holdings on each PaymentDate, any remaining funds in the Blocked Account and in the Collection Accountwill be remitted by the TRS Servicer in the following order of priority:  (i) to reimburse or indemnify the OwnerTrustee for expenses and other liabilities incurred by and reimbursable to theOwner Trustee, pursuant to Article VII hereunder, except as otherwise providedin such article and (ii) to make payments on the TRS Certificates in the amountof any remaining funds.  Upon request,the Certificate Registrar shall provide the TRS Servicer with the identity ofeach Certificateholder with respect to the related TRS Sub-Trust (withaccompanying wiring instructions) three (3) Business Days prior to each suchPayment Date.  Pursuant to the terms ofthe Trust Documents to which the REIT Sub-Trust is a party, after payment bythe REIT Sub-Trust of all amounts owed to UBS, the REIT Servicer, the MasterServicer and, pursuant to Section 3.4 hereof, the TRS Sub-Trust and MortgageITon each Payment Date, any remaining funds in the Collection Account will beremitted by the REIT Servicer in the following order of priority:  (i) to reimburse or indemnify the OwnerTrustee for expenses and other liabilities incurred by and reimbursable to theOwner Trustee, pursuant to Article VII hereunder, except as otherwise providedin such article and (ii) to make payments on the REIT Certificates in theamount of any remaining funds.  Uponrequest, the Certificate Registrar shall provide the REIT Servicer with theidentity of each Certificateholder with respect to the related REIT Sub-Trust(with accompanying wiring instructions) three (3) Business Days prior to eachsuch Payment Date.

 

SECTION 3.2.        Accessto Certain Documentation and Information.  The Owner Trustee shall provide to theCertificateholders of the TRS Certificates access to all the reports, documentsand records of the TRS Sub-Trust maintained by the Owner Trustee in respect ofits duties hereunder.  The Owner Trusteeshall provide to the Certificateholders of the REIT Certificates access to allthe reports, documents and records of the REIT Sub-Trust maintained by theOwner Trustee in respect of its duties hereunder.  In each case, such access being afforded without charge but onlyupon reasonable written request and during normal business hours at officesdesignated by the Owner Trustee.

 

SECTION 3.3.        Compliancewith Withholding Requirements.  In the event that the Trust is required (whether on liquidationof the Trust or otherwise) to make payments to the Certificateholders,notwithstanding any other provisions of this Agreement, the Trust shall complywith all federal withholding requirements with respect to payments to theCertificateholders that each Servicer, as paying agent, reasonably believes areapplicable under

 

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the Code.  The consent of theCertificateholder shall not be required for any such withholding.  The parties hereto, and eachCertificateholder, understand and agree that the Trust shall not be required togross up any such payments for the amount of such withholding (or any otheramounts).

 

SECTION 3.4.        Reimbursementfor Cross-Payments. (a)  It is the intention of MortgageIT that all TRS RelatedObligations to the extent owing to UBS, whether in its capacity as principal oras Agent (either for itself under any Facility Agreement or for any otherPurchaser or Noteholder under the Note Purchase Agreement), be satisfied byeither the TRS Trust Estate (including the proceeds thereof), or, to the extentprovided for in the Transaction Documents, by MortgageIT, to the extent owingto UBS, whether in its capacity as principal or as Agent (either for itselfunder any Facility Agreement or for any other Purchaser or Noteholder under theNote Purchase Agreement).  Similarly, itis the intention of MortgageIT Holdings that all REIT Related Obligations besatisfied by either the REIT Trust Estate (including the proceeds thereof), or,to the extent provided for in the Transaction Documents, by MortgageITHoldings.

 

(b)           Notwithstandingthe foregoing, and to take full opportunity of the affiliate relationshipbetween MortgageIT and MortgageIT Holdings, each of such companies have agreedto make, and such company has permitted its related Sub-Trust to agree to make,Cross-Payments for the benefit of the other, but only to the extent thatMortgageIT and the TRS Sub-Trust on the one hand, and MortgageIT Holdings andthe REIT Sub-Trust on the other hand, have not timely fulfilled theirrespective obligations as set forth in the Transaction Documents and on thefurther terms set forth in the Transaction Documents.

 

(c)           Consistentwith each of the two preceding paragraphs, each of MortgageIT and the TRSSub-Trust, on the one hand, and MortgageIT Holdings and the REIT Sub-Trust, onthe other hand, agree that, to the extent that one party has made aCross-Payment on behalf of the other party, that the amount of suchCross-Payment shall immediately give rise to a reimbursement obligation fromthe party on whose behalf such Cross-Payment was made to the party funding suchCross-Payment, which such reimbursement obligation shall be payable on demandand accrue interest at an arm’s-length rate as may be specified between theparties at the time.

 

(d)           Forconvenience, the parties may agree to set-off outstanding Cross-Paymentliabilities, if Cross-Payments shall have been funded by each of MortgageITand/or the TRS Sub-Trust on the one hand and by MortgageIT Holdings and/or theREIT Sub-Trust on the other.

 

ARTICLE IV

 

DUTIES OF THE OWNERTRUSTEE

 

SECTION 4.1.        Noticeof Certain Events: Action by the Owner Trustee.  (a)  Whenever the Owner Trustee,on behalf of the REIT Sub-Trust or the TRS Sub-Trust, is requested or, as toany particular matter, notified of its authority, by any Person, to take anyaction or to give any consent, approval or waiver that it is entitled to takeor give on behalf of the REIT Sub-Trust or the TRS Sub-Trust in such capacity, theOwner Trustee shall promptly

 

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provide written notice to the Certificateholders of the REITCertificates or the Certificateholders of the TRS Certificates, as the case maybe, of such request or notice in such detail as is made available to it.

 

(b)           Subjectto the Owner Trustee’s rights in this Agreement to be indemnified for its actsand omissions with respect to matters concerning the Trust Documents or theTrust Estate, the Owner Trustee shall take or refrain from taking such actionwith respect to a Sub-Trust as the Certificateholders entitled to a majority ofthe Voting Rights with respect to such Sub-Trust shall so direct in writing,with the written consent of UBS, or (ii) upon written notice from UBS that adefault or an Event of Default has occurred and is continuing under any of theFacility Agreements to which such Sub-Trust is a party as UBS shall so directin writing until written notice from UBS to the contrary.  With respect to matters affecting aSub-Trust, the Owner Trustee may, from time to time, request in writinginstructions from the Certificateholders with respect to such Sub-Trust andshall request in writing instructions from the Certificateholders with respectto such Sub-Trust if the Owner Trustee receives notice that a default or anEvent of Default shall have occurred and is continuing under the AdministrationAgreement or any of the Facility Agreements. With respect to matters concerning the Trust generally, and not aparticular Sub-Trust, a majority of the Certificateholders of each Sub-Trust,acting as a separate class, shall exercise the foregoing rights.  If the Owner Trustee in good faith followsany written instructions it receives pursuant hereto, the Owner Trustee shall notbe liable to the Certificateholders or any other Person on account of itsaction or inaction.  If the OwnerTrustee has not received appropriate written instruction within ten (10) daysof the notice (or within such shorter period as may be necessary under thecircumstances) it may, but shall be under no duty to, take or refrain fromtaking any action not inconsistent with the Trust Agreement that it deems to bein the best interests of the Certificateholders, and shall have no liability tothe Certificateholders for its action or inaction.

 

(c)           Notwithstandingany direction of the Certificateholders to the contrary or any provision hereofto the contrary, the Owner Trustee shall not, without the written consent ofUBS, execute any direction of the Certificateholders that to the actualknowledge of a Responsible Officer of the Owner Trustee will result in theTrust as an entirety or with respect to either Sub-Trust being terminated priorto the satisfaction and discharge of the Liens created by the FacilityAgreements on the related Sub-Trust Estate and, in the case of the REITSub-Trust, prior to the payment in full of the principal of and accruedinterest on the Notes.

 

SECTION 4.2.        ActionRequired Only if Owner Trustee is Indemnified.  The Owner Trustee shall not be required totake any action under Section 4.1(b) if the Owner Trustee shall reasonablydetermine, or shall have been advised in writing by counsel, that such actionis likely to result in personal liability for which the Owner Trustee has notbeen and will not be adequately indemnified or is contrary to the terms hereofor of any Trust Document or is otherwise contrary to law.

 

SECTION 4.3.        NoDuties Except as Specified in Agreement or Instructions.  (a) The Owner Trustee shall not have any duty or obligation to manage,control, use, make any payment in respect of, register, record, insure,inspect, sell, dispose of or otherwise deal with any part of the Trust Estate,or to otherwise take or refrain from taking any action under or in connectionwith any Trust Document to which the Owner Trustee is a party, except asexpressly

 

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provided by the terms of this Agreement or in written instructions fromthe Certificateholders or UBS received pursuant to Section 4.1(b); and noimplied duties or obligations shall be read into this Agreement against theOwner Trustee, other than the obligation of the Owner Trustee to exercise suchof the rights and powers vested in it by this Agreement in good faith and in amanner which is not grossly negligent and which does not constitute willfulmisconduct.  The Bank in its individualcapacity, nevertheless agrees that it will, at its own cost and expense,promptly take all action as may be necessary to discharge any Liens on theTrust Estate arising by, through or under the Bank which are unrelated to thetransactions contemplated hereby.

 

(b)           Withoutlimiting the generality of the foregoing subsection (a), except asotherwise explicitly provided in this Agreement, the Owner Trustee shall nothave any duty to (i) file or record any Trust Document or any other document,or to maintain or continue any such filing or recording or to refile orrerecord any such document, (ii) pay or discharge any tax or any Lien owing withrespect to or assessed or levied against any part of the Trust Estate, otherthan to forward notice of such tax or Lien received by the Owner Trustee to theCertificateholders and UBS, (iii) confirm, verify, investigate or inquire intothe failure of any party to receive any payments, notices, reports or financialstatements in connection with the Trust Estate or the Trust Documents, (iv)ascertain or inquire as to the performance or observance of any person orentity under or of any of the Trust Documents, or (v) manage, control, sell,dispose of or otherwise deal with part thereof or any other part of the TrustEstate.

 

ARTICLE V

 

THE OWNER TRUSTEE

 

SECTION 5.1.        Acceptanceof Trust and Duties. The Bank accepts the trust hereby created and agrees to perform thesame, but only upon the terms of this Agreement in accordance with the standardof care set forth in the first sentence of Section 4.3(a).  The Bank agrees to receive, manage anddisburse all moneys constituting part of the Trust Estate actually received byit as Owner Trustee in accordance with the terms of this Agreement.  Neither the Bank nor the Owner Trustee shallbe answerable or accountable under any circumstances, except for (i) its ownwillful misconduct or gross negligence, (ii) the inaccuracy of any of itsrepresentations or warranties contained in Section 5.2 of this Agreement,(iii) taxes based on or measured by any fees, commissions or compensationreceived by it for acting as Owner Trustee in connection with any of thetransactions contemplated by this Agreement or any other Trust Documents and(iv) its failure to use due care to receive, manage and disburse moneysactually received by it in accordance with the terms hereof.

 

SECTION 5.2.        LimitedRepresentations or Warranties of the Owner Trustee.  Neither the Bank nor the Owner Trustee makes(i) any representation or warranty, either express or implied, as to the titleto or value of the Note or the Owner Trust Certificates, and (ii) anyrepresentation or warranty as to the validity or enforceability of any TrustDocument except as set forth below or as to the correctness of any statementmade by a person or entity other than the Bank or the Owner Trustee containedin any Trust Document.  The Bankrepresents, warrants and covenants to and for the benefit of the Depositors andthe Certificateholders that:

 

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(a)           TheBank is a banking corporation, duly organized, validly existing and in goodstanding under the laws of the State of Delaware;

 

(b)           Theexecution and delivery by the Bank, and the performance and compliance by theBank with the terms of, this Agreement and any and all documents to be executedor delivered by the Bank in its individual capacity in connection with thisAgreement and to fulfill its obligations under, and to consummate thetransactions contemplated by, this Agreement and such other documents executedin connection herewith to which the Bank is a party, will not violate anyprovisions of the Bank’s charter or bylaws;

 

(c)           TheBank, in its individual capacity, has full power and authority and has takenall corporate action necessary to execute and deliver this Agreement and anyand all documents to be executed or delivered by it in its individual capacityin connection with this Agreement and to fulfill its obligations under, and toconsummate the transactions contemplated by, this Agreement and such otherdocuments executed in connection herewith to which it is a party, and, assumingdue authorization, execution and delivery by the Depositors, this Agreement isthe legal, valid and binding obligation of the Bank, in its individualcapacity, enforceable against the Bank in accordance with its terms, except assuch terms may be limited by bankruptcy, insolvency, reorganization, moratoriumor other similar laws affecting the rights of creditors generally and bygeneral principles of equity;

 

(d)           Theconsummation of the transactions hereby contemplated do not conflict with,violate or contravene any law, rule, regulation or judicial, governmental oradministrative order applicable to the banking or trust powers of the Bank orconflict with, result in a breach of or constitute a default under any of theterms, conditions or provisions of any agreement or instrument to which theBank is a party or by which it is bound, or any order or decree applicable tothe Bank, which would materially and adversely affect the ability of the Bankto carry out the transactions contemplated by this Agreement; and

 

(e)           Thereis no action, suit or proceeding pending against the Bank in any court or by orbefore any other governmental agency or instrumentality which would materiallyand adversely affect the ability of the Bank to carry out the transactionscontemplated by this Agreement.

 

SECTION 5.3.        CertainDuties and Responsibilities.  (a)  The Owner Trusteeshall not be liable for any error of judgment made in good faith by aResponsible Officer, unless it shall be proved that the Owner Trustee wasgrossly negligent or performed willful misconduct in ascertaining the pertinentfacts.

 

(b)           TheOwner Trustee shall not be liable with respect to any action taken or omittedto be taken by it in good faith in accordance with the direction of theCertificateholders or UBS, pursuant hereto.

 

(c)           TheOwner Trustee shall not be liable for interest on any money received by itexcept as the Owner Trustee may otherwise agree with the Certificateholders.

 

(d)           Noprovision of this Agreement shall require the Owner Trustee to expend or riskits own funds or otherwise incur any financial liability in the performance ofany of its

 

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duties hereunder, or in the exercise of any of its rights or powers, ifit shall have reasonable grounds for believing that repayment of such funds oradequate indemnity against such risk or liability is not reasonably assured toit.

 

(e)           Thepermissive right of the Owner Trustee to take actions enumerated in thisAgreement shall not be construed as a duty and the Owner Trustee shall not beanswerable for other than its own gross negligence or willful misconduct.

 

(f)            TheOwner Trustee shall be under no obligation to institute any suit, or to takeany remedial proceeding under this Agreement, or to enter any appearance or inany way defend in any suit in which it may be made a defendant, or in theenforcement of any rights and powers hereunder, if the Owner Trustee reasonablybelieves that it will not be adequately indemnified against any and all costsand expenses, outlays, and counsel fees and other reasonable disbursements andagainst all liability.

 

(g)           Underno circumstances shall the Owner Trustee be personally liable for anyindebtedness or obligation of the Trust;

 

(h)           TheOwner Trustee shall not be liable for the default or misconduct of eitherDepositor, the Administrator or any other Person and shall not be responsiblefor performing any duties or obligations of the Trust including any that is theresponsibility of either Depositor, the Administrator or any other Person.

 

(i)            Everyprovision of this Agreement relating to the Owner Trustee shall be subject tothe provisions of this Section 5.3.

 

SECTION 5.4.        Reliance:Advice of Counsel. Neither the Bank nor the Owner Trustee shall incur any liability to anyperson or entity in acting upon any signature, instrument, notice, resolution,request, consent, order, certificate, report, opinion, bond or other documentor paper believed by it to be genuine and believed by it in good faith to besigned by the proper party or parties. The Owner Trustee may accept and rely upon a certified copy of aresolution of the board of directors or other governing body of any corporateparty as conclusive evidence that such resolution has been duly adopted by suchbody and that the same is in full force and effect.  As to any fact or matter the manner of ascertainment of which isnot specifically prescribed herein, the Owner Trustee may for all purposeshereof rely on an Officers’ Certificate of the relevant party, as to such factor matter, and such Officers’ Certificate shall constitute full protection tothe Owner Trustee for any action taken or omitted to be taken by it in goodfaith in reliance thereon. In the administration of the Trust hereunder, theOwner Trustee may execute any of the trusts or powers hereof and perform itspowers and duties hereunder directly or through agents and the Owner Trusteeshall not be liable for the acts or omissions of any Trust agent selected by itin good faith.  The Owner Trustee mayconsult with counsel, accountants and other skilled Persons to be selected andemployed 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 written adviceor opinion of counsel, accountant or other skilled Persons, so long as theOwner Trustee had no actual knowledge that it could not reasonably rely on suchadvice or opinion or by any such Persons appointed in good faith.

 

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SECTION 5.5.        NotActing in Individual Capacity.  All persons or entities having any claim against the Bank or theOwner Trustee by reason of the transactions contemplated by the Trust Documentsrelating to a Sub-Trust Estate shall look only to the related Sub-Trust Estate(or a part thereof, as the case may be) for payment or satisfaction thereof,except to the extent that the Bank or the Owner Trustee shall otherwiseexpressly agree in any related Trust Document to which it is a party.

 

SECTION 5.6.        Booksand Records; Tax Election.  The Administrator shall be responsible for the keeping of allappropriate books and records relating to the receipt and disbursement of allmoneys that each Sub-Trust may receive hereunder or under any other TrustDocument, including but not limited to any capital contribution received by aSub-Trust from a Depositor pursuant to Section 2.01(a) of the Loan SaleAgreement.  For so long as eachSub-Trust has one related Certificateholder, for federal income tax purposes,each Sub-Trust, pursuant to Treasury regulations promulgated under Section 7701of the Code, will be disregarded as an entity distinct from the relatedCertificateholder.  In the event that aSub-Trust has more than one related Certificateholder or a Sub-Trust is in anyevent successfully recharacterized by the IRS as a partnership, theAdministrator shall file an application with the IRS for a taxpayeridentification number with respect to such Sub-Trust and prepare or cause to beprepared and sign and/or file partnership tax returns including the partnershipinformation return on Form 1065 in connection with the transactionscontemplated hereby or by any other Trust Document (the “Tax Return”);provided, however, that if received by the Owner Trustee, the Owner Trusteeshall send or cause to be sent a copy of the completed Tax Return to theDepositors, the related Certificateholders and UBS not more than sixty (60) norless than thirty (30) days prior to the due date of the Tax Return.  The Depositor and any relatedCertificateholders shall each, upon written request by the Owner Trustee (orthe Trust Agent or the Administrator), furnish the Owner Trustee (or the TrustAgent or the Administrator) with all such information as may be reasonablyrequired from the Depositor or the related Certificateholders in connectionwith the preparation of such Tax Return by the Administrator.  The Administrator shall keep copies of theTax Returns delivered to or filed by it (or the Trust Agent).  Neither the Administrator nor the OwnerTrustee shall take any action that, to its actual knowledge, would cause theTrust or either Sub-Trust to be treated as an association taxable as acorporation for federal income tax purposes.

 

ARTICLE VI

 

COMPENSATION,REIMBURSEMENT AND INDEMNIFICATION OF THE OWNER TRUSTEE

 

SECTION 6.1.        Compensationof the Owner Trustee. The Owner Trustee shall be entitled to receive as compensation for itsservices an initial fee and an annual administration fee payable in August ofeach calendar year beginning in 2004 (the “Owner Trustee Fee”) and suchother fees and charges as agreed upon by the Owner Trustee and MortgageIT, Inc.pursuant to a separate fee agreement.

 

SECTION 6.2.        Reimbursementand Indemnification of the Owner Trustee.  (a) The Owner Trustee shall be entitled to be reimbursed for its reasonableexpenses (including reasonable attorneys’ fees) incurred in the performance ofits duties as Owner Trustee hereunder,

 

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and to be compensated reasonably for any extraordinary servicesrendered under Section 4.1(b), except to the extent that such expensesarise out of or result from (i) the Owner Trustee’s own willful misconduct orgross negligence, (ii) the inaccuracy of any of the Owner Trustee’srepresentations or warranties contained in Section 5.2 of this Agreement,(iii) the Owner Trustee’s failure to perform obligations expressly undertakenby it in this Agreement in accordance with the standard of care set forth inSection 4.3(a), (iv) taxes based on or measured by any fees, commissions orcompensation received by the Owner Trustee for acting as such in connectionwith any of the transactions contemplated by this Agreement or any other TrustDocuments, and (v) the Owner Trustee’s failure to use due care to receive,manage and disburse moneys actually received by it in accordance with the termshereof.

 

(b)           TheBank shall be entitled to be indemnified and held harmless from and against anyand all liabilities, obligations, indemnity obligations, losses (excluding lossof anticipated profits), damages, claims, actions, suits, judgments,out-of-pocket costs, expenses and disbursements (including agent, legal andconsultants’ fees and expenses) and taxes of any kind and nature whatsoever(collectively, the “Liabilities”) which may be imposed on, incurred byor asserted at any time against the Bank or the Owner Trustee in any wayrelating to or arising out of the related Sub-Trust Estate, any of theproperties included therein, the administration of the related Sub-Trust Estateor any action or inaction of the Owner Trustee hereunder or under the relatedTrust Documents, except to the extent that such Liabilities arise out of orresult from (i) the Owner Trustee’s own willful misconduct or gross negligence,(ii) the inaccuracy of any of the Owner Trustee’s representations or warrantiescontained in Section 5.2 of this Agreement, (iii) the Owner Trustee’sfailure to perform obligations expressly undertaken by it in this Agreement inaccordance with the standard of care set forth in Section 4.3(a), (iv)taxes based on or measured by any fees, commissions or compensation received bythe Owner Trustee for acting as such in connection with any of the transactionscontemplated by this Agreement or any other Trust Document, and (v) the OwnerTrustee’s failure to use due care to receive, manage and disburse moneysactually received by it in accordance with the terms hereof.  The indemnities contained in thisSection 6.2(b) shall survive the termination of this Agreement and theremoval or resignation of the Owner Trustee hereunder.

 

(c)           Anyreimbursements and indemnities to the Owner Trustee pursuant to thisSection 6.2 shall be payable by the related Servicer first, (i) relatingto the REIT Sub-Trust, out of amounts on deposit in the collection account(s)established pursuant to the REIT Servicing Agreement prior to payments on theREIT Certificates, and (ii) relating to the TRS Sub-Trust, out of amounts ondeposit in the Blocked Account established pursuant to the Blocked AccountAgreement and administered under the TRS Servicing Agreement prior to paymentson the TRS Certificates; second, to the extent not paid pursuant to clausefirst within sixty (60) days of first being incurred, by theCertificateholders, on a joint and several basis as contemplated by Section 3.4of this Agreement; and third, to the extent not paid pursuant to clause firstand second within 60 days of first being incurred, by MortgageIT, Inc.

 

SECTION 6.3.        NotObligations of the Trust.  None of the fees, expenses and other liabilities referred to inSections 6.1 and 6.2 shall be obligations of the Trust or otherwise chargeableto the related Sub-Trust Estate, except as provided in Section 6.2hereunder.  The Owner Trustee herebyagrees not to cause or participate in the filing of a petition in bankruptcyagainst the Trust for the nonpayment to the Owner Trustee of any amountsprovided by this

 

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Agreement until ninety-one (91) days after the later of (i) payment infull of the Notes issued under the Note Purchase Agreement and(ii) payment in full all of the Trust’s obligations under the LoanRepurchase Agreement, the Loan Purchase Agreement and the Loan ParticipationAgreement.

 

ARTICLE VII

 

DISSOLUTION ANDTERMINATION OF TRUST

 

SECTION 7.1.        Termination.  The Trust shall not be dissolved orterminated under this Section 7.1 until the Notes have been paid in full, allof the Trust’s obligations under the Loan Repurchase Agreement, the LoanPurchase Agreement and the Loan Participation Agreement have been paid in fulland the Liens on the Trust Estate created by the Facility Agreements have beenreleased and the Sub-Trusts are able to be dissolved.

 

The REIT Sub-Trustmay be dissolved by the Holders of the REIT Certificates MortgageIT Holdings atany time prior to the issuance of the Notes and the pledge of the REIT TrustEstate pursuant to the Note Purchase Agreement, and at any time after the NotePurchase Agreement is terminated in accordance with Article III thereof, andthe REIT Sub-Trust shall dissolve in connection with the final distribution onthe Note.  The TRS Sub-Trust may bedissolved by the Holders of the TRS Certificates at any time prior to the saleof the TRS Trust Estate pursuant to the Loan Repurchase Agreement, the LoanPurchase Agreement and the Loan Participation Agreement, and at any time afterthe Loan Repurchase Agreement, the Loan Purchase Agreement and the LoanParticipation Agreement are terminated, and the TRS Sub-Trust shall dissolve inconnection with the Trust’s last payment obligation under the Loan RepurchaseAgreement, the Loan Purchase Agreement and the Loan ParticipationAgreement.  After payment of all amountsthen due and payable to Wilmington Trust Company pursuant to Sections 6.1 and6.2 hereof and the payment of all other then known liabilities of the relatedSub-Trust, all right, title and interest in the related Sub-Trust Estate stillheld by the Owner Trustee at the time of such dissolution shall be transferred,assigned and paid over to the respective Certificateholders or their designee,and upon receipt of written instructions from the Certificateholders, the OwnerTrustee shall file a certificate of cancellation under Section 3810 of theStatutory Trust Statute and such Sub-Trust shall terminate.

 

SECTION 7.2.        FurtherAssurances by the Owner Trustee upon Termination.  Upon termination of this Trust, the OwnerTrustee shall take such action as may be requested by, and at the expense of,the Certificateholders to transfer the remaining assets of the Trust to theCertificateholders or the Certificateholders’ designee, including the executionof instruments of transfer or assignment with respect to the Notes and any ofthe Trust Documents to which the Owner Trustee is a party.

 

SECTION 7.3.        Insolvencyof a Certificateholder. The insolvency or other similar incapacity of a Certificateholder shallnot (i) operate to terminate the Trust or the related Sub-Trust, (ii) entitlethe Certificateholder’s legal representatives to claim an accounting or to takeany action in any court for a partition or winding up of the related Sub-TrustEstate or (iii) otherwise affect the rights, obligations and liabilities of theparties hereto.

 

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SECTION 7.4.        Eventof Default  Uponthe occurrence and continuation of a default or an Event of Default under anyof the Facility Agreements, all of the proceeds from the Trust Estate shallsecure and be available to satisfy the Trust’s obligations to UBS, thePurchasers and the Noteholders under the Facility Agreements, without regard asto which Sub-Trust relates to the affected Mortgage Loans; provided that withrespect to the REIT Sub-Trust’s obligations to UBS, the Purchasers and theNoteholders, UBS shall first apply all proceeds of the REIT Collateral, andwith respect to the TRS Sub-Trust’s obligations to UBS, UBS shall first applyall proceeds of the TRS Collateral.  UBSmay apply any cash that is part of the Trust Estate to such obligations and/orcollect, realize, appropriate, retain and realize upon any of the TrustEstate.  UBS may forthwith sell, assign,give an option or options to purchase, contract to sell, or otherwise disposeof and deliver any of the Trust Estate in one or more parcels at a public orprivate sale or sales, at such place or places, at such price or prices, andupon such other terms and conditions as UBS may deem best for the interests ofUBS, the Purchasers and the Noteholders, in a commercially reasonablemanner.  No distributions shall be madeto any Certificateholder until all of the Trust’s obligations to UBS, thePurchasers and the Noteholders are satisfied in full.

 

ARTICLE VIII

 

SUCCESSOR OWNER TRUSTEES,CO-OWNER TRUSTEES AND SEPARATE OWNER TRUSTEES

 

SECTION 8.1.        Resignationof the Owner Trustee; Appointment of Successor.  (a) The Owner Trustee may resign with respect to either or both Sub-Trustsat any time (and shall immediately resign if it ceases to be an Eligible OwnerTrustee) by giving at least 60 days written notice to the Certificateholders, theDepositors, UBS and the Administrator, such resignation to be effective on theacceptance of appointment by a successor Owner Trustee underSection 8.1(b) hereof.  TheDepositors shall remove the Owner Trustee by written notice, a copy of whichshall be concurrently delivered by the Depositors to the Certificateholders,UBS and the Administrator, if the Owner Trustee ceases to be an Eligible OwnerTrustee and fails to resign immediately. The Owner Trustee otherwise may be removed with respect to a Sub-Trustwith or without cause at any time (i) by the Certificateholders holding amajority of the Voting Rights for such respective Sub-Trust Estate or (ii) byUBS, upon written notice from UBS to the Owner Trustee that a default or Eventof Default under any of the Facility Agreements to which such Sub-Trust is aparty has occurred and is continuing with sixty (60) days’ prior written noticehaving been given to the Owner Trustee by UBS a copy of which shall beconcurrently delivered by such Certificateholders to the related Depositor, UBSand the Administrator.  Any such removalshall be effective upon the acceptance of appointment by a successor OwnerTrustee with respect to such Sub-Trust under Section 8.1 (b) hereof.  In the case of the resignation or removal ofthe Owner Trustee, the Certificateholders for each respective Sub-Trust Estate,or in the case of the removal of the Owner Trustee for one Sub-Trust only (orupon written notice from UBS to the Owner Trustee that a default or Event ofDefault under any of the Facility Agreements to which such Sub-Trust hasoccurred and is continuing) UBS may appoint a successor Owner Trustee by aninstrument signed by the respective Certificateholders or UBS for therespective Sub-Trust.  If a successorOwner Trustee for the respective Sub-Trust shall not have been appointed within60 days after the giving of notice of such resignation or the delivery of suchinstrument with respect to such removal, the Owner Trustee, the Depositors,UBS, the

 

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Administrator or the Certificateholders for the respective Sub-Trustmay apply to any court of competent jurisdiction to appoint a successor OwnerTrustee to act until such time, if any, as a successor shall have been appointedand shall have accepted its appointment as above provided.  Any successor Owner Trustee so appointed bysuch court shall immediately and without further act be superseded by anysuccessor Owner Trustee appointed as above provided within one year from thedate of the appointment by such court.

 

(b)           Anysuccessor Owner Trustee, however appointed, shall execute and deliver to thepredecessor Owner Trustee and UBS an instrument accepting such appointment andshall furnish a photocopy of such instrument to the Certificateholders, andthereupon such successor Owner Trustee, without further act, shall becomevested with all the estates, properties, rights, powers, duties and trusts ofthe predecessor Owner Trustee herein; but nevertheless, upon the written requestof such successor Owner Trustee such predecessor Owner Trustee shall executeand deliver an instrument transferring to such successor Owner Trustee, uponthe trusts herein expressed, all the estates, properties, rights, powers,duties and trusts of such predecessor Owner Trustee and such predecessor OwnerTrustee shall duly assign, transfer, deliver and pay over to such successorOwner Trustee all moneys or other property then held by such predecessor OwnerTrustee upon the trusts herein expressed.

 

(c)           Anysuccessor Owner Trustee shall be an Eligible Owner Trustee, willing, able andlegally qualified to perform the duties of the Owner Trustee hereunder.

 

(d)           AnyPerson into which the Owner Trustee may be merged or converted or with which itmay be consolidated, or any Person resulting from any merger, conversion orconsolidation to which the Owner Trustee shall be a party, or any Person towhich substantially all the corporate trust business of the Owner Trustee maybe transferred, shall, subject to the terms of Section 8.1 (c) hereof, bethe Owner Trustee under this Agreement without any further act.

 

SECTION 8.2.        Co-Trusteesand Separate Trustee. Whenever the Owner Trustee or UBS shall deem it necessary or prudent inorder to conform to any law of any jurisdiction in which all or any part ofeach Sub-Trust Estate shall be situated or to make any claim or be a party toany suit with respect to each Sub-Trust Estate, the Owner Trust Certificates,the Notes or any Trust Document, or the Owner Trustee or UBS shall be advisedin writing by counsel reasonably satisfactory to each of them that it is sonecessary or prudent, the Owner Trustee and the Certificateholders shallexecute and deliver an agreement supplemental hereto and all other instrumentsand agreements, and shall take all other action, necessary or proper toconstitute one or more persons or entities, who need not meet the requirementsof Section 8.1 (c) hereof (and the Owner Trustee may appoint one or moreof its officers), either as co-trustees or co-trustees jointly with the OwnerTrustee of all or any part of the Trust Estate, or as separate trustee orseparate trustees of all or any part of the Trust Estate, and to vest in suchpersons or entities, in such capacity, such title to the Trust Estate or anypart thereof and such rights or duties as may be necessary or desirable, allfor such period and under such terms and conditions as are reasonablysatisfactory to the Owner Trustee and the Certificateholders.  In case any co-trustee or separate

 

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trustees shall die, become incapable of acting, resign or be removed,the title to the Trust Estate and all rights and duties of such co-trustee orseparate trustees shall, so far as permitted by law, vest in and be exercisedby the Owner Trustee, without the appointment of a successor to such co-trusteeor separate trustees.

 

SECTION 8.3.        Notice.  At all times that a successor Owner Trusteeis appointed under Section 8.1 hereof, an Owner Trustee resigns pursuant tosuch Section 8.1 or a co-trustee or separate trustee is appointed pursuant toSection 8.2 hereof, the Certificateholders promptly shall give notice of suchfact to UBS, if the Facility Agreements have not been terminated.

 

ARTICLE IX

 

SUPPLEMENTS ANDAMENDMENTS

 

SECTION 9.1.        Supplementsand Amendments. Subject to Sections 9.2 and 9.3 of this Agreement, at the writtenrequest of the Certificateholders (which, if the requested amendment relates toonly one Sub-Trust, shall be the Certificateholders of that Sub-Trust, thisAgreement shall be amended by a written instrument signed by the Owner Trusteeand the Certificateholders (which, if the requested amendment relates to onlyone Sub-Trust, shall be the Certificateholders of that Sub-Trust, and, if theirrights hereunder are adversely affected, the Depositors) and with the consentof UBS, but if in the opinion of the Owner Trustee any instrument required tobe so executed materially and adversely affects any right, duty or liabilityof, or immunity or indemnity in favor of the Bank or the Owner Trustee underthis Agreement or any of the other Trust Documents to which the Owner Trusteeis a party, or would cause or result in any conflict with or breach of anyterms, conditions or provisions of, or default under, the Bank’s charterdocuments or by-laws or any document contemplated hereby to which the OwnerTrustee is a party, the Owner Trustee may in its sole discretion decline toexecute such instrument.  The OwnerTrustee will not execute any amendment or supplement to this Agreement withoutfirst obtaining the written consent of UBS.

 

At any time thatthere is more than one Certificateholder with respect to a Sub-Trust (as shownon the Certificate Register), the written consent to an amendment by Certificateholders  (which, if the requested amendment relatesto only one Sub-Trust, shall be the Certificateholders of that Sub-Trust)entitled to a majority of the Voting Rights shall be sufficient to bind all ofsuch Holders; provided, however, that no such amendment shall:(i) reduce in any manner the amount of, or delay the timing of, paymentsreceived on any Owner Trust Certificate without the consent of the affectedHolder; or (ii) amend this Section 9.1, without the written consent of allof the Holders then outstanding.

 

SECTION 9.2.        Limitationon Amendments. Notwithstanding Section 9.1 or Section 9.3 hereof, the OwnerTrustee shall not, without the consent of UBS amend Section 7.1 of thisAgreement, or execute any amendment that, to the actual knowledge of aResponsible Officer of the Owner Trustee, will result in the Trust beingterminated prior to the satisfaction and discharge of the Liens of the FacilityAgreements on the related Sub-Trust Estate.

 

SECTION 9.3.        AdditionalAmendment Provisions. (a)  It shall not be necessaryfor the consent of the respective Certificateholders under this Article IXto approve the particular form of any proposed amendment, but it shall besufficient if such consent shall

 

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approve the substance thereof. The manner of obtaining such consents and of evidencing theauthorization of the execution thereof shall be subject to such reasonableregulations as the Owner Trustee may prescribe.

 

(b)           The Owner Trustee, at any time fromtime to time, upon the request of the Administrator but without the consent ofthe Certificateholders, may amend this Agreement to modify, eliminate or add toany of its provisions, to such extent as shall be necessary to prevent orreduce the imposition on the Trust of any material federal, state or localtaxes, at all time prior to the liquidation of the Trust; provided, however,that such action, as evidenced by an Opinion of Counsel acceptable to the OwnerTrustee, is necessary or helpful to prevent the imposition on the Trust of anysuch taxes.

 

(c)           Prior to the execution of anyamendment to this Agreement, the Owner Trustee shall be entitled to receive andrely upon an Opinion of Counsel, at the expense of the party requesting suchamendment (or, if such amendment is requested by the Owner Trustee, then at theexpense of the Trust) stating that the execution of such amendment isauthorized or permitted by this Agreement.

 

ARTICLE X

 

REPRESENTATIONS,WARRANTIES AND COVENANTS OF THE DEPOSITOR

 

SECTION 10.1.      Representationsand Warranties of the Depositor.  (a) Each Depositor represents and warrants as follows to the Trust and theOwner Trustee, and acknowledges that the Trust intends to assign the benefit ofthese representations and warranties to UBS for the benefit of the Noteholders,UBS, any purchaser of any Mortgage Loan and any Certificateholder:

 

(i)            such Depositor is a corporation dulyorganized, validly existing and in good standing under the laws of thejurisdiction of its incorporation, has full power and authority, and has takenall action necessary, to execute and deliver this Agreement, and any and allother documents to be executed or delivered by it in connection with thisAgreement, and to fulfill its obligations under, and to consummate thetransactions contemplated by, this Agreement, and this Agreement and such otherdocuments executed in connection herewith are the legal, valid and bindingobligations of such Depositor, enforceable against it in accordance with theirrespective terms, except as such terms may be limited by bankruptcy,insolvency, reorganization, moratorium or other similar laws affecting therights of creditors generally and by general principles of equity;

 

(ii)           the execution and delivery of thisAgreement and each other document to be executed or delivered by it inconnection with this Agreement, and the performance of its obligationshereunder and thereunder by such Depositor will not violate the provisions ofits articles of incorporation or by-laws, conflict with any provision of anylaw or regulation to which it is subject, or conflict with, result in a breachof, or constitute a default under any of the terms, conditions or provisionsof, any agreement or instrument to which such Depositor is a party or by whichit is bound, or any order or decree

 

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applicable to such Depositor, or result in thecreation or imposition of any Lien on any of such Depositor’s assets orproperty, the result of any of the above which would materially and adverselyaffect the ability of such Depositor to carry out the transactions contemplatedby this Agreement or such other documents executed in connection herewith; noconsent, approval, authorization or order of or filing with or notice to anycourt or governmental agency or body is required for the execution, deliveryand performance by such Depositor of this Agreement or such other documents;and

 

(iii)          there is no action, suit or proceedingpending against such Depositor in any court or by or before any othergovernmental agency or instrumentality which would materially and adverselyaffect the validity of the Owner Trust Certificates or, with respect toMortgageIT Holdings, the Notes, or the ability of such Depositor or the Certificateholdersto carry out the transactions contemplated by this Agreement.

 

(b)           Itis understood and agreed that each of the foregoing representations andwarranties of each Depositor shall survive delivery of the Trust Estate to theTrust.  Upon discovery or receipt ofnotice by either Depositor or a Responsible Officer of the Owner Trustee of abreach of any of the foregoing representations and warranties that materiallyand adversely affects the interests of UBS, the Noteholders or the OwnerTrustee for the benefit of the Certificateholders, the party discovering suchbreach shall give prompt written notice to the other party hereto and to UBS.

 

SECTION 10.2.      AccruedInterest, Etc. Each Depositor agrees that any income, interest, fees and other paymentsthat it may receive in respect of the related Trust Estate applicable to aperiod on or after the Closing Date shall inure to the benefit of the Trust,and such Depositor shall pay such amounts to the related Sub-Trust to beremitted in accordance with Section 3.1 promptly upon receipt.

 

SECTION 10.3.      AdditionalCovenants of the Depositors.  Each Depositor hereby covenants and agrees that:

 

(a)           Thebusiness and affairs of such Depositor will be managed by or under thedirection of its board of directors in accordance with its articles oforganization and operating agreement. Such Depositor will keep correct and complete books and records ofaccounts and minutes of the meetings and other proceedings of the board ofmanagers.  Any such resolutions, agreementsand other instruments will be continuously maintained as official records bysuch Depositor.

 

(b)           SuchDepositor will at all times ensure that its capitalization is adequate in lightof its business and purposes.  SuchDepositor will pay from its own funds and assets (and not the Trust’s) allobligations and indebtedness incurred by it.

 

(c)           SuchDepositor will not conduct its business in the name of the Trust.

 

(d)           SuchDepositor will not guarantee any obligations of the Trust (including the Notesor the Owner Trust Certificates).  SuchDepositor will not operate or purport to operate as an integrated, singleeconomic unit with respect to the Trust or seek or obtain credit or incur

 

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any obligation to any third party based on the assets of the Trust orinduce any such third party to reasonably rely on the creditworthiness of theTrust in connection therewith.

 

(e)           Theaccounting records of such Depositor will disclose the effect of thetransactions in accordance with generally accepted accounting principals andany applicable statutory requirements.

 

(f)            SuchDepositor hereby acknowledges, and agrees for the benefit of the Trust, UBS,the Noteholders and the Certificateholders to perform, each obligation imposedupon it under the Trust Documents.

 

ARTICLE XI

 

TRANSFER OF INTEREST OFTHE OWNER TRUST CERTIFICATES

 

SECTION 11.1.      Registrationof Transfer and Exchange of Owner Trust Certificates.  (a) At all times during the term of this Agreement, there shall bemaintained at the office of a registrar appointed by the Depositors (the “CertificateRegistrar”) a register (the “Certificate Register”) in which,subject to such reasonable regulations as the Certificate Registrar mayprescribe, the Certificate Registrar shall provide for the registration ofOwner Trust Certificates and of transfers and exchanges of Owner TrustCertificates as herein provided.  TheOwner Trustee is hereby initially appointed (and hereby agrees to act inaccordance with the terms hereof) as Certificate Registrar for the purpose ofregistering Owner Trust Certificates and transfers and exchanges of Owner TrustCertificates as herein provided.  TheOwner Trustee may appoint, by a written instrument delivered to the Depositors,any other bank or trust company to act as Certificate Registrar under suchconditions as the Owner Trustee may prescribe, provided that the Owner Trusteeshall not be relieved of any of its duties or responsibilities hereunder asCertificate Registrar by reason of such appointment.  If the Owner Trustee resigns or is removed in accordance with theterms hereof, the successor Owner Trustee shall immediately succeed to itspredecessor’s duties as Certificate Registrar. Each Depositor, the Administrator, and the Owner Trustee shall have theright to inspect the Certificate Register or to obtain a copy thereof at allreasonable times, and to rely conclusively upon a certificate of theCertificate Registrar as to the information set forth in the CertificateRegister.

 

(b)           Notransfer, sale, pledge or other disposition of any Owner Trust Certificate orinterest therein shall be made unless that transfer, sale, pledge or otherdisposition is exempt from the registration and/or qualification requirementsof the Securities Act and any applicable state securities laws, or is otherwisemade in accordance with the Securities Act and such state securities laws.  The Trust has not been registered as aninvestment company under the Investment Company Act, and no transfer of anOwner Trust Certificate may be made (i) to any Person other than (a) a QIB or(b) a Person involved in the organization or operation of the Trust or anAffiliate of such Person within the meaning of the Investment Company Act or(ii) to any Person that would require the Trust or any such trust fund to beregistered as an investment company under the Investment Company Act.  If such transfer is to be made to any Personwho is not a Person involved in the organization or operation of the Trust oran Affiliate of such Person within the meaning of the Investment Company Act,then the Certificate Registrar shall refuse to register such transfer unless itreceives (and upon receipt, may conclusively rely upon)

 

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a certificate from the Certificateholder desiring to effect suchtransfer substantially in the form attached as Exhibit B-1 hereto and acertificate from such Certificateholder’s prospective transferee substantiallyin the form attached as Exhibit B-2 hereto. None of the Trust, the Depositor, the Owner Trustee or the CertificateRegistrar is obligated to register or qualify any Owner Trust Certificate underthe Securities Act or any other securities laws or to take any action nototherwise required under this Agreement to permit the transfer of any OwnerTrust Certificate or interest therein without registration orqualification.  Any Certificateholderdesiring to effect a transfer of an Owner Trust Certificate or an interesttherein shall, and does hereby agree to, indemnify the Trust, the Depositors,the Administrator, the Owner Trustee, the Trust Agent and the CertificateRegistrar against any liability that may result if the transfer is not soexempt or is not made in accordance with such federal and state laws.

 

(c)           Notransfer of any Owner Trust Certificate or any interest therein shall be made(A) to any employee benefit plan or other retirement arrangement, includingindividual retirement accounts and annuities, Keogh plans and collectiveinvestment funds and separate accounts in which such plans, accounts orarrangements are invested, including, without limitation, insurance companygeneral accounts, that is subject to ERISA or the Code (each, a “Plan”),or (B) to any Person who is directly or indirectly purchasing such Owner TrustCertificate or interest therein on behalf of, as named fiduciary of, as agentof, or with assets of a Plan.

 

(d)           (i)Each Person who has or who acquires any Ownership Interest in an Owner TrustCertificate shall be deemed by the acceptance or acquisition of such OwnershipInterest to have agreed to be bound by the following provisions.  The rights of each Person acquiring anyOwnership Interest in an Owner Trust Certificate are expressly subject to thefollowing provisions:

 

(A)                              EachPerson holding or acquiring any Ownership Interest in an Owner TrustCertificate shall be a Permitted Transferee and shall promptly notify the OwnerTrustee and the Certificate Registrar of any change or impending change in itsstatus as a Permitted Transferee.

 

(B)                                Inconnection with any proposed transfer of any Ownership Interest in an OwnerTrust Certificate (other than to an Affiliate of the Trust that is a PermittedTransferee), the Certificate Registrar shall require delivery to it, and shallnot register the Transfer of any Owner Trust Certificate until its receipt of(i) an affidavit (a “Transfer Affidavit,” in the form attached hereto asExhibit C-1) from the proposed transferee, in form and substance satisfactoryto the Certificate Registrar, representing and warranting, among other things,that such transferee is a Permitted Transferee, that it is not acquiring itsOwnership Interest in the Owner Trust Certificate that is the subject of theproposed Transfer as a nominee, trustee or agent for any Person that is not aPermitted Transferee, that for so long as it retains its Ownership Interest inan Owner Trust Certificate, it will

 

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endeavor to remain a Permitted Transferee, and that ithas reviewed the provisions of this Section 11.1(d) and agrees to be bound bythem and (ii) an affidavit from the transferor of such Owner Trust Certificatein the form attached hereto as Exhibit C-2.

 

(C)                                Notwithstandingthe delivery of a Transfer Affidavit by a proposed transferee under clause (B)above, if a Responsible Officer of the Owner Trustee who is assigned to thistransaction has actual knowledge that the proposed transferee is not aPermitted Transferee, no Transfer of an Ownership Interest in an Owner TrustCertificate to such proposed transferee shall be effected.

 

(D)                               EachPerson holding or acquiring any Ownership Interest in an Owner TrustCertificate shall agree (x) to require a Transfer Affidavit from any otherPerson to whom such Person attempts to transfer its Ownership Interest in anOwner Trust Certificate and (y) not to transfer its Ownership Interest unlessit provides a Transfer Affidavit to the Certificate Registrar stating that,among other things, it has no actual knowledge that such other Person is not aPermitted Transferee.

 

(ii)    The Certificate Registrar will register theTransfer of any Owner Trust Certificate only if it shall have received theTransfer Affidavit and Agreement and all of such other documents as shall havebeen reasonably required by the Certificate Registrar as a condition to suchregistration.  In addition, no transferof an Owner Trust Certificate shall be made unless the Certificate Registrarshall have received a representation letter from the transferee of such OwnerTrust Certificate to the effect that such transferee is a Permitted Transferee.

 

(e)           Byits acceptance of an Owner Trust Certificate, each prospective Holder agreesand acknowledges that no legal or beneficial interest in all or any portion ofany Owner Trust Certificate may be transferred directly or indirectly to anindividual, corporation, partnership or other Person unless such transferee isnot a Non-United States Person and any such purported transfer shall be voidand of no effect.

 

(f)            TheOwner Trust Certificate shall bear a legend describing or referencing therestrictions on transferability set forth in Sections 11.1(b), (c) and (d).

 

(g)           Subjectto compliance with Sections 11.1(b), (c) and (d), upon surrender forregistration of transfer of the Owner Trust Certificate at the office of theCertificate Registrar or at the office of its Trust Agent in Wilmington,Delaware, the Owner Trustee shall execute, and the Certificate Registrar shalldeliver and authenticate, in the name of the designated transferee ortransferees, one or more new Owner Trust Certificates, in authorizeddenominations, evidencing in the aggregate a like aggregate Percentage Interestin the related Sub-Trust and dated the date of authentication by theCertificate Registrar.

 

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(h)           Atthe option of any Certificateholder, Owner Trust Certificates may be exchangedfor other Owner Trust Certificates, in authorized denominations, evidencing inthe aggregate a like aggregate Percentage Interest in the related Sub-Trustupon surrender of the Owner Trust Certificates to be exchanged at the office ofthe Certificate Registrar, or the office of its Trust Agent in Wilmington,Delaware. Whenever any Owner Trust Certificates are so surrendered forexchange, the Owner Trustee shall execute and the Certificate Registrar shallauthenticate and deliver, the Owner Trust Certificates which theCertificateholder is entitled to receive.

 

(i)            Ifthe Owner Trustee or the Certificate Registrar so requires, every Owner TrustCertificate presented or surrendered for registration of transfer or exchangeshall be duly endorsed by, or accompanied by a written instrument of transferin form satisfactory to the Owner Trustee and the Certificate Registrar dulyexecuted by, the Certificateholder thereof or such person’s attorney dulyauthorized in writing.

 

(j)            Noservice charge shall be made to the requesting Certificateholder for anyregistration of transfer or exchange of Owner Trust Certificates, but the CertificateRegistrar may require payment of a sum sufficient to cover any tax orgovernmental charge that may be imposed in connection with any registration oftransfer or exchange of Owner Trust Certificates.

 

(k)           TheCertificate Registrar shall cancel and retain or destroy, in accordance withthe Owner Trustee’s retention policy then in effect, all Owner TrustCertificates surrendered for registration of transfer or exchange.

 

(l)            EachDepositor may make a new contribution of capital to the respective Sub-Trustpursuant to Section 2.01(a) of the Loan Sale Agreement,

 

(m)          Notransfer, sale, pledge or other disposition of any Owner Trust Certificate orinterest therein shall be made without UBS’s written consent.

 

SECTION 11.2.      Mutilated,Destroyed, Lost or Stolen Owner Trust Certificates.  If (i) any mutilated Owner Trust Certificateis surrendered to the Owner Trustee or the Certificate Registrar, or the OwnerTrustee and the Certificate Registrar receive evidence to their satisfaction ofthe destruction, loss or theft of any Owner Trust Certificate, and (ii) thereis delivered to the Owner Trustee and the Certificate Registrar such securityor indemnity as may be required by them to save each of them harmless, then, inthe absence of actual knowledge by a Responsible Officer of the Owner Trusteeor the Certificate Registrar that such Owner Trust Certificate has beenacquired by a bona fide purchaser, the Owner Trustee shall execute and theCertificate Registrar shall authenticate and deliver, in exchange for or inlieu of any such mutilated, destroyed, lost or stolen Owner Trust Certificate,a new Owner Trust Certificate of like tenor. Upon the issuance of any new Owner Trust Certificate under thisSection 11.2, the Owner Trustee may require the payment of a sumsufficient to cover any tax or other governmental charge that may be imposed inrelation thereto and any other expenses (including the fees and expenses of theCertificate Registrar) connected therewith. Any replacement Owner Trust Certificate issued pursuant to thisSection shall constitute complete and indefeasible evidence of ownershipof the corresponding interest in the Trust, as if originally issued, whether

 

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or not the lost, stolen or destroyed Owner Trust Certificate shall befound at any time and such original Owner Trust Certificate shall thereby bedeemed canceled.

 

SECTION 11.3.      PersonsDeemed Owners. Prior to due presentation of an Owner Trust Certificate for registrationof transfer, the Owner Trustee, the Administrator, the Certificate Registrar,the Servicers and any agent of any of them may treat the person or entity inwhose name any Owner Trust Certificate is registered as the owner of such OwnerTrust Certificate for the purpose of receiving distributions pursuant toSection 3.1 hereof and for all other purposes whatsoever, and neither theOwner Trustee, the Certificate Registrar, the Servicers nor any agent of any ofthem shall be affected by notice to the contrary.

 

SECTION 11.4.      Accessto Names and Addresses. (a)  If any Certificateholder orthe Administrator (each, in such capacity, an “Applicant”) applies inwriting to the Owner Trustee, and such application states that the Applicantdesires to communicate with other Certificateholders with respect to theirrights under this Agreement or the Owner Trust Certificates and is accompaniedby a copy of the communication which such Applicant proposes to transmit, thenthe Owner Trustee shall, at the expense of such Applicant, within ten (10)Business Days after the receipt of such application, furnish or cause to befurnished to such Applicant a list of the names and addresses of theCertificateholders as set forth in the Certificate Register.

 

(b)           EveryCertificateholder consents to the disclosure to any Applicant of its identityand status as a Certificateholder and agrees with the Owner Trustee that theOwner Trustee and the Certificate Registrar shall not be held accountable inany way by reason of the disclosure of any information as to the names andaddresses of the Certificateholders hereunder, regardless of the source fromwhich such information was derived.

 

SECTION 11.5.      Actionsof Certificateholders. (a)  Any request, demand,authorization, direction, notice, consent, waiver or other action provided bythis Agreement to be given or taken by Certificateholders may be embodied inand evidenced by one or more instruments of substantially similar tenor signedby such Certificateholders in person or by agent duly appointed in writing; andexcept as herein otherwise expressly provided, such action shall becomeeffective when such instrument or instruments are delivered to the OwnerTrustee.  Proof of execution of any suchinstrument or of a writing appointing any such agent shall be sufficient forany purpose of this Agreement and conclusive in favor of the Owner Trustee, ifmade in the manner provided in this Section 11.5.

 

(b)           Thefact and date of the execution by any Certificateholder of any such instrumentor writing may be proved in any reasonable manner which the Owner Trustee deemssufficient.

 

(c)           Anyrequest, demand, authorization, direction, notice, consent, waiver or otheraction by a Certificateholder shall bind every transferee of every Owner TrustCertificate issued upon the registration of transfer of suchCertificateholder’s Owner Trust Certificate or in exchange therefor or in lieuthereof, in respect of anything done, or omitted to be done, by the OwnerTrustee, in reliance thereon, whether or not notation of such action is madeupon such Owner Trust Certificate.

 

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(d)           TheOwner Trustee may require such additional proof of any matter referred to inthis Section 11.5 as it shall deem necessary.

 

SECTION 11.6.      Transferee’sAgreement.  Noassignment, conveyance or other transfer pursuant to this Article XI shallbe effective unless the transferee shall have executed and delivered to theOwner Trustee an instrument containing the transferee’s agreement to be boundby the terms of this Agreement.

 

ARTICLE XII

 

MISCELLANEOUS

 

SECTION 12.1.      NoLegal Title to Trust Estate in the Certificateholder.  The Certificateholders shall not have legaltitle to any part of the Trust Estate; provided, however, thatthe Certificateholders have a beneficial interest in the applicable respectiveSub-Trust Estate.  No transfer byoperation of law or otherwise of any right, title or interest of theCertificateholders in and to the respective Sub-Trust Estate or hereunder shalloperate to terminate this Agreement or the Trust or the trusts hereunder orentitle any successor or transferee to an accounting or to the transfer to itof legal title to any part of the respective Sub-Trust Estate.

 

SECTION 12.2.      Actionby the Owner Trustee is Binding.  Any actions, directions, approvals orconsents by the Owner Trustee so long as such actions, directions, consents orapprovals are made pursuant to the terms of this Agreement shall bind theCertificateholders and shall be effective to consent to action taken by theparties.  No such party shall berequired to inquire as to the authorization, necessity, expediency orregularity of such consent by the Owner Trustee.

 

SECTION 12.3.      Limitationon Rights of Others. Nothing in this Agreement, whether express or implied, shall beconstrued to give to any person or entity, other than the Bank, the OwnerTrustee, the Depositors, the Certificateholders and UBS, any legal or equitableright, remedy or claim under or in respect of this Agreement.

 

SECTION 12.4.      Notices. All demands, notices and communicationshereunder shall be in writing, may be given by facsimile transmission, shall bedeemed to have been given upon receipt (except that notices being sent by firstclass mail, postage prepaid, shall be deemed to be received five business daysfollowing the mailing thereof) as follows: (i) in the case of the OwnerTrustee, Wilmington Trust Company, Rodney Square North, 1100 North MarketSquare, Wilmington Delaware 19890-0001, facsimile number: (302) 636-4140 or(302) 636-4141, Attention: Corporate Trust Administration; (ii) in the case ofthe Depositors, 33 Maiden Lane, New York, NY 10038, facsimile number: (212)651-4674, Attention:  Michael A.Zigrossi and John R. Cuti; (iii) in the case of the Trust, c/o MortgageIT, Inc.,33 Maiden Lane, New York, NY 10038, facsimile number: (212) 651-4674,Attention: Attention:  Michael A.Zigrossi and John R. Cuti; and (iv) in the case of a Certificateholder, to thatPerson’s name and address as set forth from time to time in the CertificateRegister; or as to each such Person such other address and/or facsimile numberas any of them shall specify by written notice to the other parties.

 

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SECTION 12.5.      Severability.  To the extent permitted by law, anyprovision of this Agreement that may be determined by competent authority to beprohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,be ineffective to the extent of such prohibition or unenforceability withoutinvalidating the remaining provisions hereof, and any such prohibition orunenforceability in any jurisdiction shall not invalidate or renderunenforceable such provision in any other jurisdiction.

 

SECTION 12.6.      Limitationon the Depositors’ and the Certificateholders’ Respective Liability.  Neither of the Depositors nor anyCertificateholder shall have any liability for the performance of thisAgreement except as expressly set forth herein.

 

SECTION 12.7.      SeparateCounterparts. This Agreement may be executed by the parties hereto in separatecounterparts, each of which when so executed and delivered shall be anoriginal, but all such counterparts shall together constitute but one and thesame instrument.

 

SECTION 12.8.      Successorsand Assigns.  Allcovenants and agreements contained herein shall be binding upon, and inure tothe benefit of, the Bank, the Owner Trustee and its successors and assigns, theCertificateholders and the Depositors and their respective successors andassigns, all as herein provided.  Anyrequest, notice, direction, consent, waiver or other instrument or action byeither Depositor shall bind the successors and assigns of such Depositor andany request, notice, direction, consent, waiver or other instrument or actionby a Certificateholder shall bind the successors and assigns of suchCertificateholder.  It is the intentionof the parties hereto that the Trust constitute a trust formed pursuant to thelaws of the State of Delaware with the purpose of facilitating the transactionscontemplated by the Trust Documents.

 

SECTION 12.9.      Headings.  The headings of the various articles andsections herein are for convenience of reference only and shall not define orlimit any of the terms or provision hereof.

 

SECTION 12.10.    GoverningLaw.  THISAGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITHTHE LAWS OF THE STATE OF DELAWARE.

 

SECTION 12.11.    Administrationof Trust.  Theprincipal place of administration of the Trust shall be in the State ofDelaware or in the State of New York.

 

SECTION 12.12.    Performanceby the Depositor or the Administrator.  Any obligation of the Owner Trustee or theTrust hereunder or under any Trust Document or other document contemplatedherein may be performed by either Depositor or the Administrator and any suchperformance shall not be construed as a revocation of the trusts createdhereby.

 

SECTION 12.13.    NoImplied Waiver. No term or provision of this Agreement may be changed, waived, dischargedor terminated orally, but only by an instrument in writing entered into asprovided in Section 9.1 hereof; and any such waiver of the terms hereofshall be effective only in the specific instance and for the specific purposegiven.

 

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SECTION 12.14.    ThirdParty Beneficiary. UBS, for itself and for the benefit of the Noteholders, is an intendedthird-party beneficiary of this Agreement from and including the date hereof tothe date on which the Liens on the Trust Estate created pursuant to theFacility Agreements are satisfied, discharged and released; UBS shall givenotice to the Owner Trustee of such release.

 

SECTION 12.15.    References.  The definitions in Article I shallapply equally to both the singular and plural forms of the terms defined.“Include”, “included”, “includes” and “including” shall be deemed to befollowed by “without limitation”. “Writing”, “written” and comparable terms refer to printing, typing,lithography or other means of reproducing words in a visible form.  Any agreement or instrument or any law, ruleor regulation of any Governmental Authority defined or referred to inArticle I means such agreement or instrument or such law, rule orregulation as from time to time amended, modified or supplemented in accordancewith the terms thereof, including (in the case of agreements or instruments) bywaiver or consent and (in the case of such law, rule or regulation) bysuccession of any comparable successor law, rule or regulation and includes (inthe case of agreements or instruments) references to all attachments theretoand instruments incorporated therein. References to a Person are also to its successors and permitted assigns.  Any term defined above by reference to anyagreement or instrument or any law, rule or regulation of any GovernmentalAuthority has such meaning whether or not such agreement, instrument or law,rule or regulation is in effect. “Agreement”, “hereof’, “herein”, “hereto”, “hereunder” and comparableterms refer to this Agreement (including all exhibits and schedules hereto) andnot to any particular article, section, clause or other subdivision hereof orattachment hereto.  References to anygender include, unless the context otherwise requires, references to allgenders, and references to the singular include, unless the context otherrequires, references to the plural and vice versa.  References in this Agreement to “Article”, “Section”, “Clause” oranother subdivision or to an attachment are, unless the context otherwiserequires, to an article, clause or subdivision of or attachment to thisAgreement.

 

SECTION 12.16.    UBSCash Account. (a)  The Trust hereby authorizesand directs UBS to create a UBS Cash Account, which account shall be held bythe UBS and shall be subject to the terms and conditions of thisAgreement.  The UBS Cash Account shallcontain a sub-trust account with respect to the REIT Mortgage Loans (the “REITUBS Cash Account”) and a sub-trust account with respect to the TRS MortgageLoans (the “TRS UBS Cash Account”), that reflect the balances of theREIT Trust Estate and the TRS Trust Estate, respectively.  UBS shall notify the Trust, via electronicor facsimile transmission, of the UBS Cash Account Balance on each Business Daywhen the UBS Cash Account Balance is greater than zero and on each Business Dayon which a Transaction or a Note Purchase occurs.

 

(b)           UBSshall credit the REIT UBS Cash Sub-Account for (i) any deposits therein by theREIT-Sub Trust upon the REIT Sub-Trust’s written direction pursuant to aWithdrawal/Deposit Notice, (ii) any Supplemental Amount for any REIT MortgageLoan upon the refunding to UBS of the Disbursement Amount for such REITMortgage Loan by the Escrow Agent upon any failure to apply the DisbursementAmount in connection with the proposed funding of a Mortgage Loan, (iii) anycredit pursuant to a UBS Cash Account Adjustment, (iv) any UBS Cash AccountInterest Accruals and (vi) any deposits by the REIT Sub-Trust under the NotePurchase Agreement.  UBS shall creditthe TRS UBS Cash Sub-Account for (i) any

 

29

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deposits therein by the TRS Sub-Trust upon the TRS Sub-Trust’s writtendirection pursuant to a Withdrawal/Deposit Notice, (ii) any amounts due the TRSSub-Trust and payable by UBS under any UBS Purchase Program to the extent nototherwise netted as described in Section 3 of the Loan Repurchase Agreement,(iii) any Supplemental Amount for any TRS Mortgage Loan upon the refunding toUBS of the Disbursement Amount for such TRS Mortgage Loan by the Escrow Agentupon any failure to apply the Disbursement Amount in connection with theproposed funding of a TRS Mortgage Loan, (iv) any credit pursuant to a UBS CashAccount Adjustment, (v) any UBS Cash Account Interest Accruals and (vi) anydeposits by the TRS Sub-Trust under the Loan Repurchase Agreement, the LoanPurchase Agreement and/or the Loan Participation Agreement.

 

(c)           UBSshall debit the REIT UBS Cash Sub-Account for (i) any withdrawals therefrom bythe REIT Sub-Trust upon the REIT Sub-Trust’s written direction pursuant to aWithdrawal/Deposit Notice, (ii) the Supplemental Amount for any REIT MortgageLoan upon payment of the Disbursement Amount for such REIT Mortgage Loan to theEscrow Agent, (iii) any debit pursuant to a UBS Cash Account Adjustment and(iv) any Wire Fees and other fees or other amounts payable hereunder by theREIT Sub-Trust.  UBS shall debit the TRSUBS Cash Sub-Account for (i) any withdrawals therefrom by the TRS Sub-Trustupon the TRS Sub-Trust’s written direction pursuant to a Withdrawal/DepositNotice, (ii) any amounts due UBS and payable by the TRS Sub-Trust under any UBSPurchase Program, (iii) the Supplemental Amount for any TRS Mortgage Loan uponpayment of the Disbursement Amount for such TRS Mortgage Loan to the EscrowAgent in accordance with Section 2(b)(2), Section 2(c)(1) and Section 2(d)(2)of the Loan Repurchase Agreement, (iv) any debit pursuant to a UBS Cash AccountAdjustment and (v) any Wire Fees and other fees or other amounts payablehereunder by the TRS Sub-Trust.

 

(d)           Upontermination of any of the Facility Agreements and payment in full of allobligations owing by the Trust under any of the Trust Documents, UBS shallremit to each Sub-Trust the UBS Cash Account Balance in the related sub-trustaccount.

 

(e)           TheTrust hereby confirms and agrees that to secure the Trust’s obligations underTransaction Documents, it hereby grants to UBS a first priority continuingsecurity interest in and to the UBS Cash Account and all proceeds (as definedin the UCC) of such account.  The Trustfurther agrees that UBS may issue “entitlement orders” (within the meaning ofSection 8-102(a)(8) of the UCC) or other instructions from UBS, including, withoutlimitation, directing the transfer or redemption of any financial assetcredited to, or the disposition of funds held in, the UBS Cash Account forapplication against any obligations in such order as UBS shall determined inits sole discretion.  It is herebyacknowledged and agreed that UBS is exercising exclusive control over the UBSCash Account as of the date hereof.

 

30

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IN WITNESS WHEREOF, the parties hereto have causedthis Agreement to be duly executed by their respective officers hereunto dulyauthorized, as of the date hereof.

 
|   | MORTGAGEIT HOLDINGS,  INC.,                   |
|--------|-----------------------------------------------|
|   | as a Depositor and  initial Certificateholder |
|   |                                          |   |
|   |                                          |   |
|   | By:                                           | /s/ JOHN R. CUTI |   |
|   |                                          | Name: | John R. Cuti |   |
|   |                                          | Title: |  Secretary |   |
|   |                                          |   |
|   |                                          |   |
|   | MORTGAGEIT, INC.,                             |
|   | as a Depositor and  initial Certificateholder |
|   |                                          |   |
|   |                                          |   |
|   | By:                                           | /s/ JOHN R. CUTI |   |
|   |                                          | Name: | John R. Cuti |   |
|   |                                          | Title: |  Secretary |   |
|   |                                          |   |
|   |                                          |   |
|   | WILMINGTON TRUST  COMPANY,                    |
|   | as Owner Trustee                              |
|   |                                          |
|   |                                          |   |
|   | By:                                           | /s/ Janel R. Harvilla |   |
|   |                                          | Name: | Janel R. Harvilla |   |
|   |                                          | Title: |  Financial  Services Officer |   |
|        |                                               |  |  |  |  |  |

 
| Acknowledged and Agreed to with  Respect to Section 7.4 and Section 12.16  of this Agreement By: |
|--------------------------------------------------------------------------------------------------|
|                                                                                             |
| UBS REAL ESTATE SECURITIES INC.                                                                  |
|                                                                                             |
|                                                                                             |
| By:                                                                                              | /s/ ROBERT CARPENTER |   |
|                                                                                             | Name: | Robert Carpenter |
|                                                                                             | Title: | Director |
|                                                                                             |   |   |
|                                                                                             |   |   |
| By:                                                                                              | /s/ GEORGE MANGIARACINA |   |
|                                                                                             | Name: | George Mangiaracina |
|                                                                                             | Title: | Managing Director |
|                                                                                                  |  |  |  |

 

31

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EXHIBIT A-1

 

**FORM OFREIT CERTIFICATE**

 

**MORTGAGEITSPV I, c/o Wilmington Trust Company, Rodney Square North, 1100North Market Street, Wilmington, Delaware 19890-0001, facsimile number: (302)636-4140or (302) 636-4141, Attention: Corporate Trust Administration**

 

evidencing a non-assessable, fully paid 100% beneficial interest in theREIT Sub-Trust Estate.

 
| Date of Trust Agreement:  August 4, 2004                                                 |   | Percentage Interest in REIT Sub-Trust Evidenced by  this Owner Trust Certificate: 100% |
|------------------------------------------------------------------------------------------|--------|----------------------------------------------------------------------------------------|
|                                                                                     |   |                                                                                   |
|                                                                                     |   | Closing Date: August 4, 2004                                                           |
|                                                                                     |   |                                                                                   |
| Depositor and initial Holder of the Owner Trust  Certificates: MortgageIT Holdings, Inc. |   | Owner Trustee: Wilmington Trust Company                                                |
|                                                                                     |   |                                                                                   |
| Owner Trust Certificate No.REIT-1                                                        |   |                                                                                   |

 

**THISCERTIFICATE DOES NOT REPRESENT AN INTEREST IN, OR OBLIGATION OF, THEDEPOSITORS, THE OWNER TRUSTEE, ANY OF THEIR RESPECTIVE AFFILIATES, OR ANY OTHERPERSON.  THIS CERTIFICATE IS NOT INSUREDOR GUARANTEED, IN WHOLE OR IN PART, BY ANY GOVERNMENTAL ENTITY ORINSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.**

 

**THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTEREDUNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANYSTATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TOSUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPTFROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND ISTRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 11.1 OF THE TRUSTAGREEMENT (AS DEFINED HEREIN).**

 

**NO TRANSFER OF THIS CERTIFICATE TO (A) AN EMPLOYEE BENEFITPLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEERETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) OR THE INTERNALREVENUE CODE OF 1986 (THE “CODE”) OR (B) TO ANY PERSON WHO IS DIRECTLY ORINDIRECTLY PURCHASING THIS CERTIFICATE OR INTEREST HEREIN ON BEHALF OF, ASNAMED FIDUCIARY OF, AS AGENT OF, OR WITH ASSETS OF A PLAN WILL BE REGISTERED.**

 

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**THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITEDSTATES PERSON.**

 

**ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATEMAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (1) AN AFFIDAVIT TO THECERTIFICATE REGISTRAR THAT (A) SUCH TRANSFEREE IS A PERMITTED TRANSFEREE, IT ISNOT ACQUIRING ITS OWNERSHIP INTEREST IN THE OWNER TRUST CERTIFICATE THAT IS THESUBJECT OF THE PROPOSED TRANSFER AS A NOMINEE, TRUSTEE OR AGENT FOR ANY PERSONTHAT IS NOT A PERMITTED TRANSFEREE, THAT FOR SO LONG AS IT RETAINS ITSOWNERSHIP INTEREST IN AN OWNER TRUST CERTIFICATE, IT WILL ENDEAVOR TO REMAIN APERMITTED TRANSFEREE, AND THAT IT HAS REVIEWED THE PROVISIONS OF SECTION11.1(D) OF THE TRUST AGREEMENT AND AGREES TO BE BOUND BY THEM.  EACH PERSON HOLDING OR ACQUIRING ANYOWNERSHIP INTEREST IN AN OWNER TRUST CERTIFICATE SHALL AGREE (X) TO REQUIRE ATRANSFER AFFIDAVIT AND AGREEMENT (IN THE FORM ATTACHED AS EXHIBIT C-1 TO THETRUST AGREEMENT) FROM ANY OTHER PERSON TO WHOM SUCH PERSON ATTEMPTS TO TRANSFERITS OWNERSHIP INTEREST IN AN OWNER TRUST CERTIFICATE AND (Y) NOT TO TRANSFERITS OWNERSHIP INTEREST UNLESS IT PROVIDES A TRANSFEROR AFFIDAVIT (A “TRANSFERORAFFIDAVIT,” IN THE FORM ATTACHED EXHIBIT C-2 TO THE TRUST AGREEMENT) TO THECERTIFICATE REGISTRAR STATING THAT, AMONG OTHER THINGS, IT HAS NOT ACTUALKNOWLEDGE THAT SUCH OTHER PERSON IS NOT A PERMITTED TRANSFEREE.  NOTWITHSTANDING THE REGISTRATION IN THECERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS OWNERTRUST CERTIFICATE TO A PERSON WHO IS NOT A PERMITTED TRANSFEREE SUCHREGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER ANDSUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSEHEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THISCERTIFICATE.  EACH HOLDER OF THISCERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE CONSENTED TO THEPROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 11.1 OF THE TRUSTAGREEMENT REFERRED TO HEREIN.**

 

This Certificate is issued pursuant to, and inaccordance with, the terms of a Trust Agreement, dated as of August 4, 2004(the “Trust Agreement”; terms not otherwise defined herein shall havethe meanings assigned to those terms in the Trust Agreement), among MortgageIT,Inc., MortgageIT Holdings, Inc. (together with MortgageIT, Inc., the“Depositors”) and Wilmington Trust Company as Owner Trustee (the “OwnerTrustee”), a summary of certain of the pertinent provisions of which areset forth herein. This Certificate is issued under and is subject to the terms,provisions and conditions of the Trust Agreement, to which Trust Agreement theholder of this Certificate by virtue of the acceptance hereof assents and bywhich such Certificateholder is bound. In the event of a conflict between the provisions of this Certificateand those of the Trust Agreement, the provisions of the Trust Agreement shallcontrol.

 

A-1-2

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This certifies that MORTGAGEIT HOLDINGS, INC. (the “Certificateholder”)is the registered owner of the beneficial interest evidenced by thisCertificate in the REIT Sub-Trust, a series of MortgageIT SPV I (the “Trust”)established pursuant to the Trust Agreement. The assets of the Trust include the REIT Mortgage Loans and the proceedsthereof.

 

Except to the extent of their execution andauthentication, respectively, of the REIT Certificates, the Owner Trustee andthe Certificate Registrar make no representation or warranty as to any of thestatements contained herein or the validity or sufficiency of thisCertificate.  The Owner Trustee hasexecuted this Certificate in its limited capacity as Owner Trustee under theTrust Agreement, and the Certificate Registrar has authenticated thisCertificate in its limited capacity as Certificate Registrar under the TrustAgreement.

 

Distributions on the REIT Certificates will be made,to the extent of available funds in the REIT Sub-Trust, on the 2nd day of eachmonth or, if any such day is not a Business Day, then the next succeedingBusiness Day (each, a “Payment Date”), commencing in September2004.  As more fully described in theTrust Agreement, distributions allocable to the REIT Certificates will be madeon each Payment Date up to the amount of Certificateholder Funds for therelated Payment Date and, to the extent not previously paid, for all priorPayment Dates.  As and to the extentdescribed in the Trust Agreement, distributions of Certificateholder Funds willbe limited to the amount available for such purpose as described in Section3.1.  Such available funds will bedistributed on each Payment Date on a *pro rata* basis among the Holders of theREIT Certificates.

 

Upon the retirement of all of the Notes, the Holdersof the REIT Certificates will receive all further payments in respect of theCertificateholder Funds.  Pursuant tothe Trust Agreement, all payments made with respect to the REIT Certificates onany Payment Date shall be allocated *pro rata* among the Holders of the REITCertificates based upon their respective Percentage Interests in the REITSub-Trust.  Payments to the Holders ofthe REIT Certificates on each Payment Date will be made to theCertificateholders of record on the related Record Date.  Payments to any Certificateholder on anyPayment Date shall be made by wire transfer of immediately available funds tothe account of such Certificateholder at a bank or other entity havingappropriate facilities therefor, if such Certificateholder shall have sonotified the Owner Trustee and the Servicers in writing at least five BusinessDays prior to the related Record Date, or otherwise by check mailed by firstclass mail to the address of such Certificateholder appearing in theCertificate Register. Final payment on each Owner Trust Certificate will be madein like manner, but only upon presentment and surrender of such Owner TrustCertificate at the Corporate Trust Office or such other location specified inthe notice to Certificateholders of such final payment.

 

This Certificate does not purport to summarize theTrust Agreement and the Trust Agreement shall govern the interests, rights andlimitations of rights, benefits, obligations and duties evidenced hereby andthe rights, duties and immunities of the Owner Trustee.

 

No transfer, sale, pledge or other disposition of thisCertificate or interest herein shall be made to a Non-United States Person.

 

A-1-3

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No transfer, sale, pledge or other disposition of thisCertificate or interest herein shall be made unless that transfer, sale, pledgeor the disposition is exempt from the registration and/or qualificationrequirements of the Securities Act and any applicable state securities laws, oris otherwise made in accordance with the Securities Act and such state securitieslaws.  The Trust has not been registeredas an investment company under the Investment Company Act, and no transfer of aCertificate may be made (i) to any Person other than (a) a QIB or (b) a Personinvolved in the organization or operation of the Trust or an Affiliate of suchPerson within the meaning of the Investment Company Act or (ii) to any Personthat would require the Trust or any such trust fund to be registered as aninvestment company under the Investment Company Act.  If such transfer is to be made to any Person who is not a Personinvolved in the organization or operation of the Trust or an Affiliate of suchPerson within the meaning of the Investment Company Act, then the CertificateRegistrar shall refuse to register such transfer unless it receives (and uponreceipt, may conclusively rely upon) a certificate from the Certificateholderdesiring to effect such transfer substantially in the form attached as ExhibitB-1 to the Trust Agreement and a certificate from such Certificateholder’sprospective transferee substantially in the form attached as Exhibit B-2 to theTrust Agreement.  None of the Trust, theDepositors, the Owner Trustee or the Certificate Registrar is obligated toregister or qualify this Certificate under the Securities Act or any othersecurities laws or to take any action not otherwise required under the TrustAgreement to permit the transfer of this Certificate or interest herein withoutregistration or qualification.  Any Certificateholderdesiring to effect a transfer of this Certificate or an interest herein shall,and does hereby agree to, indemnify the Trust, the Depositors, theAdministrator, the Owner Trustee, the Trust Agent and the Certificate Registraragainst any liability that may result if the transfer is not so exempt or isnot made in accordance with such federal and state laws.

 

No transfer of this Certificate or any interest hereinshall be made (A) to any employee benefit plan or other retirement arrangement,including individual retirement accounts and annuities, Keogh plans andcollective investment funds and separate accounts in which such plans, accountsor arrangements are invested, including, without limitation, insurance companygeneral accounts, that is subject to ERISA or the Code (each, a “Plan”),or (B) to any Person who is directly or indirectly purchasing this Certificateor interest herein on behalf of, as named fiduciary of, as agent of, or withassets of a Plan.

 

Prior to registration of any transfer, sale of otherdisposition of this Owner Trust Certificate, (i) the proposed transferee shallprovide to the Certificate Registrar an affidavit to the effect that suchtransferee is a Permitted Transferee and (ii) the Transferor shall provide theCertificate Registrar an affidavit to the effect that, among other things, ithas no actual knowledge that the proposed transferee is not a PermittedTransferee.  Notwithstanding theregistration in the Certificate Register of any transfer, sale or other dispositionof this Owner Trust Certificate to a person who is not a Permitted Transferee,such registration shall be deemed to be of no legal force or effect whatsoeverand such Person shall not be deemed to be a Certificateholder for any purpose,including, but not limited to, the receipt of distributions in respect of thisOwner Trust Certificate.

 

By its acceptance of a Certificate, each prospectiveHolder agrees and acknowledges that no legal or beneficial interest in all orany portion of any Certificate may be transferred directly or indirectly to anindividual, corporation, partnership or other Person unless

 

A-1-4

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such transferee is not a Non-United States Person and any suchpurported transfer shall be void and of no effect.

 

No assignment, conveyance or other transfer of thisCertificate shall be effective unless the transferee shall have executed anddelivered to the Owner Trustee an instrument containing the transferee’sagreement to be bound by the terms of the Trust Agreement.

 

Prior to transfer of this Certificate in accordancewith the foregoing and the Trust Agreement, the Owner Trustee, the Trust andthe Certificate Registrar and any agent of any of them may treat the person orentity in whose name this Certificate is registered as the owner hereof for thepurpose of receiving distributions pursuant to the Trust Agreement, pursuant tothe Note Purchase Agreement and for all other purposes whatsoever, and neitherthe Owner Trustee, the Trust, the Certificate Registrar nor any agent of any ofthem shall be affected by notice to the contrary.

 

As provided in the Trust Agreement and subject tocertain limitations herein and therein set forth, this Certificate isexchangeable for other Certificates of the same Class in authorizeddenominations representing a like aggregate Percentage Interest, as requestedby the Certificateholder surrendering the same.

 

No service charge will be made to a Certificateholderfor any such registration of transfer or exchange, but the CertificateRegistrar may require payment of a sum sufficient to cover any tax or othergovernmental charge payable in connection therewith.

 

The Trust Agreement permits, with certain exceptionstherein provided, the amendment of the Trust Agreement and the modification ofthe rights of the Certificateholders at any time by the Owner Trustee with theconsent of UBS and the Certificateholders entitled to a majority of the VotingRights (except as provided in the Trust Agreement).  Any consent by the Certificateholder of this Certificate shall beconclusive and binding on such Certificateholder and upon all futureCertificateholders issued upon the transfer hereof or in exchange herefor or inlieu hereof whether or not notation of such consent is made upon thisCertificate.

 

The obligations created by the Trust Agreement shallnot terminate until the Notes have been paid in full and the Liens on the TrustEstate created by the Facility Agreements have been released.

 

Unless the Certificate of Authentication on thisCertificate has been executed by or on behalf of the Certificate Registrar, bymanual signature, this Certificate shall not be entitled to any benefit underthe Trust Agreement or be valid for any purpose.

 

A-1-5

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IN WITNESS WHEREOF, the Owner Trustee has caused thisCertificate to be duly executed.

 
|   | MORTGAGEIT SPV I acting  with respect to the  REIT Sub-Trust |
|--------|--------------------------------------------------------------|
|   |                                                         |   |
|   | By:                                                          | WILMINGTON TRUST  COMPANY, not in  its individual capacity, but solely as Owner  Trustee |
|   |                                                         |   |
|   |                                                         |   |   |
|   |                                                         | Authorized Officer |

 

This is one of the Owner Trust Certificates referred to in thewithin-referenced Trust Agreement.

 
| Date: August 4, 2004 |                                                                                                                    |
|----------------------|-------------------------------------------------------------------------------------------------------------------------|
|                 |                                                                                                                    |
|                 | WILMINGTON TRUST COMPANY, not in its  individual capacity, but solely as Owner Trustee  acting as Certificate Registrar |
|                 |                                                                                                                    |
|                 |                                                                                                                    |   |
|                 | Authorized Officer                                                                                                      |

 

A-1-6

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**ASSIGNMENT**

 

FOR VALUERECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) andtransfer(s)unto                                                                                                                                                                                                                                                        [(Pleaseprint or typewrite name(s) and address(es). including postal zip code ofassignee(s)] (“Assignee(s)”) that portion of the interest in the Trustrepresented by the within Owner Trust Certificate set forth below and herebyauthorize(s) the transfer and registration of transfer of such interest toAssignee(s) on the Certificate Register of the Trust.

 

I (we) furtherdirect the Certificate Registrar to issue a new Certificate of the same Classfor that portion of the interest in the Trust represented by the withinCertificate set forth below to the above-named Assignee(s) and deliver suchCertificate to the following address:                                                                                                                                                                              to issue a new Owner Trust Certificate of the same Class for the remainder ofthe interest in the Trust represented by the within Certificate to theAssignor(s) and deliver such Certificate to the following address:                                                                                  and to cancel the within Certificate.

 
| Date:               |                                     |   |   |   |
|---------------------|------------------------------------------|--------|--------|--------|
|                | Signature by or on behalf of Assignor(s) |
|                |                                     |
| Percentage Interest |                                     |
| Transferred:        |                                     |   |   |   |
|                | Taxpayer Identification Number           |
|                     |                                          |        |        |        |  |

 

A-1-7

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EXHIBIT A-2

 

**FORM OFTRS CERTIFICATE**

 

**MORTGAGEITSPV I, c/o Wilmington Trust Company, Rodney Square North, 1100North Market Street, Wilmington, Delaware 19890-0001, facsimile number: (302)636-4140or (302) 636-4141, Attention: Corporate Trust Administration**

 

evidencing a non-assessable, fully paid 100% beneficial interest in theTRS Sub-Trust Estate.

 
| Date of Trust Agreement:  August 4, 2004                                        |   | Percentage Interest in TRS Sub-Trust Evidenced  by this Owner Trust Certificate: 100% |
|---------------------------------------------------------------------------------|--------|---------------------------------------------------------------------------------------|
|                                                                            |   |                                                                                  |
|                                                                            |   |                                                                                  |
|                                                                            |   | Closing Date: August 4, 2004                                                          |
|                                                                            |   |                                                                                  |
| Depositor and initial Holder of the Owner Trust  Certificates: MortgageIT, Inc. |   | Owner Trustee: Wilmington Trust Company                                               |
|                                                                            |   |                                                                                  |
| Owner Trust Certificate No. TRS-1                                               |   |                                                                                  |

 

**THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN, OROBLIGATION OF, THE DEPOSITORS, THE OWNER TRUSTEE, ANY OF THEIR RESPECTIVEAFFILIATES, OR ANY OTHER PERSON.  THISCERTIFICATE IS NOT INSURED OR GUARANTEED, IN WHOLE OR IN PART, BY ANYGOVERNMENTAL ENTITY OR INSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.**

 

**THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTEREDUNDER THE SECURITIES ACT OF 1933, ASAMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD ORTRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD ORTRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACTAND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THEPROVISIONS OF SECTION 11.1 OF THE TRUST AGREEMENT (AS DEFINED HEREIN).**

 

**NO TRANSFER OF THIS CERTIFICATE TO (A) AN EMPLOYEE BENEFITPLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEERETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) OR THE INTERNALREVENUE CODE OF 1986 (THE “CODE”) OR (B) TO ANY PERSON WHO IS DIRECTLY ORINDIRECTLY PURCHASING THIS CERTIFICATE OR INTEREST HEREIN ON BEHALF OF, ASNAMED FIDUCIARY OF, AS AGENT OF, OR WITH ASSETS OF A PLAN WILL BE REGISTERED.**

 

A-2-1

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**THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.**

 

**ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSEDTRANSFEREE PROVIDES (1) AN AFFIDAVIT TO THE CERTIFICATE REGISTRAR THAT (A) SUCHTRANSFEREE IS A PERMITTED TRANSFEREE, IT IS NOT ACQUIRING ITS OWNERSHIPINTEREST IN THE OWNER TRUST CERTIFICATE THAT IS THE SUBJECT OF THE PROPOSEDTRANSFER AS A NOMINEE, TRUSTEE OR AGENT FOR ANY PERSON THAT IS NOT A PERMITTEDTRANSFEREE, THAT FOR SO LONG AS IT RETAINS ITS OWNERSHIP INTEREST IN AN OWNERTRUST CERTIFICATE, IT WILL ENDEAVOR TO REMAIN A PERMITTED TRANSFEREE, AND THATIT HAS REVIEWED THE PROVISIONS OF SECTION 11.1(D) OF THE TRUST AGREEMENT ANDAGREES TO BE BOUND BY THEM.  EACH PERSONHOLDING OR ACQUIRING ANY OWNERSHIP INTEREST IN AN OWNER TRUST CERTIFICATE SHALLAGREE (X) TO REQUIRE A TRANSFER AFFIDAVIT AND AGREEMENT (IN THE FORM ATTACHEDAS EXHIBIT C-1 TO THE TRUST AGREEMENT) FROM ANY OTHER PERSON TO WHOM SUCHPERSON ATTEMPTS TO TRANSFER ITS OWNERSHIP INTEREST IN AN OWNER TRUSTCERTIFICATE AND (Y) NOT TO TRANSFER ITS OWNERSHIP INTEREST UNLESS IT PROVIDES ATRANSFEROR AFFIDAVIT (A “TRANSFEROR AFFIDAVIT,” IN THE FORM ATTACHED EXHIBITC-2 TO THE TRUST AGREEMENT) TO THE CERTIFICATE REGISTRAR STATING THAT, AMONGOTHER THINGS, IT HAS NOT ACTUAL KNOWLEDGE THAT SUCH OTHER PERSON IS NOT APERMITTED TRANSFEREE.  NOTWITHSTANDINGTHE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHERDISPOSITION OF THIS OWNER TRUST CERTIFICATE TO A PERSON WHO IS NOT A PERMITTEDTRANSFEREE SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECTWHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FORANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OFDISTRIBUTIONS ON THIS CERTIFICATE.  EACHHOLDER OF THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVECONSENTED TO THE PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION11.1 OF THE TRUST AGREEMENT REFERRED TO HEREIN.**

 

This Certificate is issued pursuant to, and inaccordance with, the terms of a Trust Agreement, dated as of August 4, 2004(the “Trust Agreement”; terms not otherwise defined herein shall havethe meanings assigned to those terms in the Trust Agreement), among MortgageIT,Inc., MortgageIT Holdings, Inc. (together with MortgageIT, Inc., the“Depositors”) and Wilmington Trust Company as Owner Trustee (the “OwnerTrustee”), a summary of certain of the pertinent provisions of which areset forth herein. This Certificate is issued under and is subject to the terms,provisions and conditions of the Trust Agreement, to which Trust Agreement theholder of this Certificate by virtue of the acceptance hereof assents and bywhich such Certificateholder is bound. In the event of a conflict between the provisions of this Certificateand those of the Trust Agreement, the provisions of the Trust Agreement shallcontrol.

 

A-2-2

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This certifies that MORTGAGEIT, INC. (the “Certificateholder”)is the registered owner of the beneficial interest evidenced by thisCertificate in the TRS Sub-Trust, a series of MortgageIT SPV I (the “Trust”)established pursuant to the Trust Agreement. The assets of the Trust include the TRS Mortgage Loans and the proceedsthereof.

 

Except to the extent of their execution andauthentication, respectively, of the TRS Certificates, the Owner Trustee andthe Certificate Registrar make no representation or warranty as to any of thestatements contained herein or the validity or sufficiency of thisCertificate.  The Owner Trustee hasexecuted this Certificate in its limited capacity as Owner Trustee under theTrust Agreement, and the Certificate Registrar has authenticated thisCertificate in its limited capacity as Certificate Registrar under the TrustAgreement.

 

Distributions on the TRS Certificates will be made, tothe extent of available funds in the TRS Sub-Trust, on the 2nd day of eachmonth or, if any such day is not a Business Day, then the next succeedingBusiness Day (each, a “Payment Date”), commencing in September,2004.  As more fully described in theTrust Agreement, distributions allocable to the TRS Certificates will be madeon each Payment Date up to the amount of Certificateholder Funds for therelated Payment Date and, to the extent not previously paid, for all priorPayment Dates.  As and to the extentdescribed in the Trust Agreement, distributions of Certificateholder Funds willbe limited to the amount available for such purpose as described in Section3.1.  Such available funds will bedistributed on each Payment Date on a *pro rata* basis among the Holders of the TRSCertificates.

 

Upon the retirement of all of the Notes, the Holdersof the TRS Certificates will receive all further payments in respect of theCertificateholder Funds.  Pursuant tothe Trust Agreement, all payments made with respect to the TRS Certificates onany Payment Date shall be allocated *pro rata* among the Holders of the TRSCertificates based upon their respective Percentage Interests in the TRSSub-Trust.  Payments to the Holders ofthe TRS Certificates on each Payment Date will be made to theCertificateholders of record on the related Record Date. Payments to anyCertificateholder on any Payment Date shall be made by wire transfer ofimmediately available funds to the account of such Certificateholder at a bankor other entity having appropriate facilities therefor, if suchCertificateholder shall have so notified the Owner Trustee and the Servicers inwriting at least five Business Days prior to the related Record Date, orotherwise by check mailed by first class mail to the address of such Certificateholderappearing in the Certificate Register. Final payment on each Owner Trust Certificate will be made in likemanner, but only upon presentment and surrender of such Owner Trust Certificateat the Corporate Trust Office or such other location specified in the notice toCertificateholders of such final payment.

 

This Certificate does not purport to summarize theTrust Agreement and the Trust Agreement shall govern the interests, rights andlimitations of rights, benefits, obligations and duties evidenced hereby andthe rights, duties and immunities of the Owner Trustee.

 

No transfer, sale, pledge or other disposition of thisCertificate or interest herein shall be made to a Non-United States Person.

 

A-2-3

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No transfer, sale, pledge or other disposition of thisCertificate or interest herein shall be made unless that transfer, sale, pledgeor the disposition is exempt from the registration and/or qualificationrequirements of the Securities Act and any applicable state securities laws, oris otherwise made in accordance with the Securities Act and such statesecurities laws.  The Trust has not beenregistered as an investment company under the Investment Company Act, and notransfer of a Certificate may be made (i) to any Person other than (a) a QIB or(b) a Person involved in the organization or operation of the Trust or anAffiliate of such Person within the meaning of the Investment Company Act or(ii) to any Person that would require the Trust or any such trust fund to beregistered as an investment company under the Investment Company Act.  If such transfer is to be made to any Personwho is not a Person involved in the organization or operation of the Trust oran Affiliate of such Person within the meaning of the Investment Company Act,then the Certificate Registrar shall refuse to register such transfer unless itreceives (and upon receipt, may conclusively rely upon) a certificate from theCertificateholder desiring to effect such transfer substantially in the formattached as Exhibit B-1 to the Trust Agreement and a certificate from suchCertificateholder’s prospective transferee substantially in the form attachedas Exhibit B-2 to the Trust Agreement. None of the Trust, the Depositors, the Owner Trustee or the CertificateRegistrar is obligated to register or qualify this Certificate under theSecurities Act or any other securities laws or to take any action not otherwiserequired under the Trust Agreement to permit the transfer of this Certificateor interest herein without registration or qualification.  Any Certificateholder desiring to effect atransfer of this Certificate or an interest herein shall, and does hereby agreeto, indemnify the Trust, the Depositors, the Administrator, the Owner Trustee,the Trust Agent and the Certificate Registrar against any liability that mayresult if the transfer is not so exempt or is not made in accordance with suchfederal and state laws.

 

No transfer of this Certificate or any interest hereinshall be made (A) to any employee benefit plan or other retirement arrangement,including individual retirement accounts and annuities, Keogh plans andcollective investment funds and separate accounts in which such plans, accountsor arrangements are invested, including, without limitation, insurance companygeneral accounts, that is subject to ERISA or the Code (each, a “Plan”),or (B) to any Person who is directly or indirectly purchasing this Certificateor interest herein on behalf of, as named fiduciary of, as agent of, or withassets of a Plan.

 

Prior to registration of any transfer, sale of otherdisposition of this Owner Trust Certificate, (i) the proposed transferee shallprovide to the Certificate Registrar an affidavit to the effect that suchtransferee is a Permitted Transferee and (ii) the Transferor shall provide theCertificate Registrar an affidavit to the effect that, among other things, ithas no actual knowledge that the proposed transferee is not a PermittedTransferee.  Notwithstanding the registrationin the Certificate Register of any transfer, sale or other disposition of thisOwner Trust Certificate to a person who is not a Permitted Transferee, suchregistration shall be deemed to be of no legal force or effect whatsoever andsuch Person shall not be deemed to be a Certificateholder for any purpose,including, but not limited to, the receipt of distributions in respect of thisOwner Trust Certificate.

 

By its acceptance of a Certificate, each prospectiveHolder agrees and acknowledges that no legal or beneficial interest in all orany portion of any Certificate may be transferred directly or indirectly to anindividual, corporation, partnership or other Person unless

 

A-2-4

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such transferee is not a Non-United States Person and any suchpurported transfer shall be void and of no effect.

 

No assignment, conveyance or other transfer of thisCertificate shall be effective unless the transferee shall have executed anddelivered to the Owner Trustee an instrument containing the transferee’sagreement to be bound by the terms of the Trust Agreement.

 

Prior to transfer of this Certificate in accordancewith the foregoing and the Trust Agreement, the Owner Trustee, the Trust andthe Certificate Registrar and any agent of any of them may treat the person orentity in whose name this Certificate is registered as the owner hereof for thepurpose of receiving distributions pursuant to the Trust Agreement, pursuant tothe Note Purchase Agreement and for all other purposes whatsoever, and neitherthe Owner Trustee, the Trust, the Certificate Registrar nor any agent of any ofthem shall be affected by notice to the contrary.

 

As provided in the Trust Agreement and subject tocertain limitations herein and therein set forth, this Certificate isexchangeable for other Certificates of the same Class in authorizeddenominations representing a like aggregate Percentage Interest, as requestedby the Certificateholder surrendering the same.

 

No service charge will be made to a Certificateholderfor any such registration of transfer or exchange, but the CertificateRegistrar may require payment of a sum sufficient to cover any tax or othergovernmental charge payable in connection therewith.

 

The Trust Agreement permits, with certain exceptionstherein provided, the amendment of the Trust Agreement and the modification ofthe rights of the Certificateholders at any time by the Owner Trustee with theconsent of UBS and the Certificateholders entitled to a majority of the VotingRights (except as provided in the Trust Agreement).  Any consent by the Certificateholder of this Certificate shall beconclusive and binding on such Certificateholder and upon all futureCertificateholders issued upon the transfer hereof or in exchange herefor or inlieu hereof whether or not notation of such consent is made upon thisCertificate.

 

The obligations created by the Trust Agreement shallnot terminate until the Notes have been paid in full and the Liens on the TrustEstate created by the Facility Agreements have been released.

 

Unless the Certificate of Authentication on thisCertificate has been executed by or on behalf of the Certificate Registrar, bymanual signature, this Certificate shall not be entitled to any benefit underthe Trust Agreement or be valid for any purpose.

 

A-2-5

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IN WITNESS WHEREOF, the Owner Trustee has caused thisCertificate to be duly executed.

 
|   | MORTGAGEIT SPV I acting  with respect to the  TRS Sub-Trust |
|--------|-------------------------------------------------------------|
|   |                                                        |   |
|   | By:                                                         | WILMINGTON TRUST  COMPANY, not in  its individual capacity, but solely as Owner  Trustee |
|   |                                                        |   |
|   |                                                        |   |   |
|   |                                                        | Authorized Officer |

 

 

This is one of the Owner Trust Certificates referred to in thewithin-referenced Trust Agreement.

 
| Date: August 4, 2004 |                                                                                                                     |
|----------------------|--------------------------------------------------------------------------------------------------------------------------|
|                 |                                                                                                                     |
|                 | WILMINGTON TRUST  COMPANY, not in its  individual capacity, but solely as Owner Trustee  acting as Certificate Registrar |
|                 |                                                                                                                     |
|                 |                                                                                                                     |   |
|                 | Authorized Officer                                                                                                       |

 

A-2-6

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**ASSIGNMENT**

 

FOR VALUERECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) andtransfer(s) unto                                                                                                                                                                                                                                                                        [(Please print or typewrite name(s) and address(es). including postal zip codeof assignee(s)] (“Assignee(s)”) that portion of the interest in the Trustrepresented by the within Owner Trust Certificate set forth below and herebyauthorize(s) the transfer and registration of transfer of such interest toAssignee(s) on the Certificate Register of the Trust.

 

I (we) furtherdirect the Certificate Registrar to issue a new Certificate of the same Classfor that portion of the interest in the Trust represented by the withinCertificate set forth below to the above-named Assignee(s) and deliver suchCertificate to the following address:                                                                                                                                                                            to issue a new Owner Trust Certificate of the same Class for the remainder ofthe interest in the Trust represented by the within Certificate to the Assignor(s)and deliver such Certificate to the following address:                                                                                                                                                                                                                                               and to cancel the within Certificate.

 
| Date:               |                                     |   |   |   |
|---------------------|------------------------------------------|--------|--------|--------|
|                | Signature by or on behalf of Assignor(s) |
|                |                                     |
| Percentage Interest |                                     |
| Transferred:        |                                     |   |   |   |
|                | Taxpayer Identification Number           |
|                     |                                          |        |        |        |  |

 

A-2-7

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**EXHIBIT B-1**

** **

**FORM OF TRANSFERORCERTIFICATE FOR TRANSFERS OF THE OWNER TRUST CERTIFICATES**

** **

[Date]

 

[CERTIFICATE REGISTRAR]

 

Re:                               MortgageITSPV Iowner trust certificates relating to the [REIT/TRS] Sub-Trust (the “OwnerTrust Certificates”)

 

Ladies and Gentlemen:

 

This letter is delivered to you in connection with the sale by                                                    (the “Transferor”) to                                                      (the “Transferee”) of the Owner TrustCertificates representing a                   %Percentage Interest in the [REIT/TRS] Sub-Trust (the “Transferred OwnerTrust Certificates”).  The OwnerTrust Certificates, including the Transferred Owner Trust Certificates, wereissued pursuant to the Trust Agreement, dated as of August 4, 2004 (the “Agreement”),among MortgageIT, Inc., MortgageIT Holdings, Inc. (together with MortgageIT,Inc., the “Depositors”) and Wilmington Trust Company as Owner Trustee(the “Owner Trustee”).  Allcapitalized terms used but not otherwise defined herein shall have therespective meanings set forth in the Agreement.  The Transferor hereby certifies, represents and warrants to you,as Certificate Registrar, and for the benefit of the Depositors, the OwnerTrustee and the Transferee, that:

 

1.             TheTransferor is the lawful owner of the Transferred Owner Trust Certificates withthe full right to transfer such Owner Trust Certificates free from any and allclaims and encumbrances whatsoever.

 

2.             Neitherthe Transferor nor anyone acting on its behalf has (a) offered, transferred,pledged, sold or otherwise disposed of any Owner Trust Certificate, anyinterest in any Owner Trust Certificate or any other similar security to anyperson in any manner, (b) solicited any offer to buy or accept a transfer,pledge or other disposition of any Owner Trust Certificate, any interest in anyOwner Trust Certificate or any other similar security from any person in anymanner, (c) otherwise approached or negotiated with respect to any Owner Trust Certificate,any interest in any Owner Trust Certificate or any other similar security withany person in any manner, (d) made any general solicitation by means of generaladvertising or in any other manner, or (e) taken any other action, which (inthe case of any of the acts described in clauses (a) through (e) hereof) wouldconstitute a distribution of any Owner Trust Certificate under the SecuritiesAct of 1933, as amended (the “Securities Act”), or would render thedisposition of any Owner Trust Certificate a violation of Section 5 of theSecurities Act or any state securities laws, or would require registration orqualification of any Owner Trust Certificate pursuant to the Securities Act orany state securities laws.

 

B-1-1

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3.             TheTransferor and any person acting on behalf of the Transferor in this matterreasonably believe that the Transferee is a “qualified institutional buyer” asthat term is defined in Rule 144A (“Rule 144A”) under the Securities Act (a“Qualified Institutional Buyer”) purchasing for its own account or for theaccount of a Qualified Institutional Buyer. In determining whether theTransferee is a Qualified Institutional Buyer, the Transferor and any personacting on behalf of the Transferor in this matter have relied upon thefollowing method(s) of establishing the Transferee’s ownership anddiscretionary investments of securities (check one or more):

 

o                                    (a)The Transferee’s most recent publicly available financial statements, which statementspresent the information as of a date within 16 months preceding the date ofsale of the Transferred Owner Trust Certificate in the case of a U.S. purchaserand within 18 months preceding such date of sale for a foreign purchaser; or

 

o                                    (b)The most recent publicly available information appearing in documents filed bythe Transferee with the Securities and Exchange Commission or another UnitedStates federal, state, or local governmental agency or self-regulatoryorganization, or with a foreign governmental agency or self-regulatoryorganization, which information is as of a date within 16 months preceding thedate of sale of the Transferred Owner Trust Certificate in the case of a U.S.purchaser and within 18 months preceding such date of sale for a foreignpurchaser; or

 

o                                    (c)The most recent publicly available information appearing in a recognizedsecurities manual, which information is as of a date within 16 months precedingthe date of sale of the Transferred Owner Trust Certificate in the case of aU.S. purchaser and within 18 months preceding such date of sale for a foreignpurchaser; or

 

o                                    (d)A certification by the chief financial officer, a person fulfilling anequivalent function, or other executive officer of the Transferee, specifyingthe amount of securities owned and invested on a discretionary basis by theTransferee as of a specific date on or since the close of the Transferee’s mostrecent fiscal year, or, in the case of a Transferee that is a member of a“family of investment companies”, as that term is defined in Rule 144A, acertification by an executive officer of the investment adviser specifying theamount of securities owned by the “family of . investment companies” as of aspecific date on or since the close of the Transferee’s most recent fiscalyear.

 

4.             TheTransferor and any person acting on behalf of the Transferor understand that indetermining the aggregate amount of securities owned and invested on adiscretionary basis by an entity for purposes of establishing whether suchentity is a Qualified Institutional Buyer:

 

(a) the following instruments and interests shall beexcluded: securities of issuers that are affiliated with the Transferee;securities that are part of an unsold

 

B-1-2

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allotment to or subscription by the Transferee, if theTransferee is a dealer; securities of issuers that are part of the Transferee’s“family of investment companies”, if the Transferee is a registered investmentcompany; bank deposit notes and certificates of deposit; loan participations;repurchase agreements; securities owned but subject to a repurchase agreement;and currency, interest rate and commodity swaps;

 

(b) the aggregate value of the securities shall be thecost of such securities, except where the entity reports its securitiesholdings in its financial statements on the basis of their market value, and nocurrent information with respect to the cost of those securities has beenpublished, in which case the securities may be valued at market;

 

(c) securities owned by subsidiaries of the entitythat are consolidated with the entity in its financial statements prepared inaccordance with generally accepted accounting principles may be included if theinvestments of such subsidiaries are managed under the direction of the entity,except that, unless the entity is a reporting company under Section 13 or15(d) of the Securities Exchange Act of 1934, as amended, securities owned bysuch subsidiaries may not be included if the entity itself is a majority-ownedsubsidiary that would be included in the consolidated financial statements ofanother enterprise.

 

5.             TheTransferor or a person acting on its behalf has taken reasonable steps toensure that the Transferee is aware that the Transferor is relying on theexemption from the provisions of Section 5 of the Securities Act providedby Rule 144A.

 

6.             TheTransferor or a person acting on its behalf has furnished, or caused to befurnished, to the Transferee all information regarding (a) the TransferredOwner Trust Certificates and payments thereon, (b) the nature and performanceof the [REIT/TRS] Mortgage Loans, (c) the [Note Purchase Agreement/the LoanRepurchase Agreement, the Loan Purchase Agreement and the Loan ParticipationAgreement], the Agreement and the Trust Estate, and (d) any credit enhancementmechanism associated with the Transferred Owner Trust Certificate, that theTransferee has requested.

 
|   | Very truly yours, |
|--------|-------------------|
|   |              |
|   |              |   |
|   | (Transferor)      |
|   |              |
|   | By:               |   |   |
|   | Name:             |   |   |
|   | Title:            |   |   |
|        |                   |  |  |  |  |

 

B-1-3

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**EXHIBIT B-2**

** **

**FORM OF TRANSFEREECERTIFICATEFOR TRANSFERS OF THE OWNER TRUST CERTIFICATES**

** **

[Date]

 

[CERTIFICATE REGISTRAR]

 

Re:                               MortgageITSPV Iowner trust certificates relating to the [REIT/TRS] Sub-Trust(the “Owner Trust Certificates”)

 

Ladies and Gentlemen:

 

                                                  (the “Transferee”) intends to purchase from                                                  (the “Transferor”) the Owner Trust Certificates representing a            %Percentage Interest in the [REIT/TRS] Sub-Trust (the “Transferred OwnerTrust Certificates”).  The OwnerTrust Certificates, including the Transferred Owner Trust Certificates, wereissued pursuant to the Trust Agreement, dated as of August 4, 2004 (the “Agreement”),among MortgageIT, Inc., MortgageIT Holdings, Inc. (together with MortgageIT,Inc., the “Depositors”) and Wilmington Trust Company as Owner Trustee(the “Owner Trustee”).  Allcapitalized terms used herein and not otherwise defined shall have the meaningsset forth in the Agreement.  TheTransferee hereby certifies, represents and warrants to you, as CertificateRegistrar, and for the benefit of the Depositors, the Owner Trustee and theTransferor, that:

 

1.             TheTransferee is a “qualified institutional buyer” (a “Qualified InstitutionalBuyer”) as that term is defined in Rule 144A (“Rule 144A”) under theSecurities Act of 1933, as amended (the “Securities Act’), and hascompleted one of the forms of certification to that effect attached hereto asAnnex 1 and Annex 2.  The Transferee isaware that the sale to it of the Transferred Owner Trust Certificates is beingmade in reliance on Rule 144A.  TheTransferee is acquiring the Transferred Owner Trust Certificates for its ownaccount or for the account of a Qualified Institutional Buyer, and understandsthat such Transferred Owner Trust Certificates may be resold, pledged ortransferred only (i) to a person reasonably believed to be a QualifiedInstitutional Buyer that purchases for its own account or for the account of aQualified Institutional Buyer to whom notice is given that the resale, pledgeor transfer is being made in reliance on Rule 144A, or (ii) pursuant to anotherexemption from registration under the Securities Act.

 

2.             TheTransferee has been furnished with all information regarding (a) theTransferred Owner Trust Certificates and payments thereon, (b) the nature andperformance of the Notes and the [REIT/TRS] Mortgage Loans, (c) the [NotePurchase Agreement/the Loan Repurchase Agreement, the Loan Purchase Agreementand the Loan Participation Agreement], (d) the Agreement and (e) any creditenhancement mechanism associated with the Transferred Owner Trust Certificates,that it has requested.

 

B-2-1

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3.             Thetransferee represents that it is not any employee benefit plan subject to theEmployee Retirement Income Security Act of 1974, as amended (“ERISA”),or the Internal Revenue Code of 1986, as amended (the “Code”), or aPerson acting, directly or indirectly, on behalf of any such plan or any Personacquiring such Owner Trust Certificates with “plan assets” of a Plan within themeaning of the Department of Labor regulation promulgated at 29 C.F.R.§2510.3-101.

 

4.             Thetransferee represents that it is not a Non-United States Person.

 
|   | Very truly yours, |
|--------|-------------------|
|   |              |
|   |              |   |
|   | (Transferee)      |
|   |              |
|   | By:               |   |   |
|   | Name:             |   |   |
|   | Title:            |   |   |
|        |                   |  |  |  |  |

 

B-2-2

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**ANNEX 1 TO EXHIBIT B-2**

 

**QUALIFIED INSTITUTIONALBUYER STATUS UNDER SEC RULE 144A**

 

*[for Transferees other than Registered Investment Companies]*

 

The undersigned hereby certifies as follows to [nameof Transferor] (the “Transferor”) and [name of Certificate Registrar],as Certificate Registrar, with respect to the Owner Trust Certificates beingtransferred (the “Transferred Owner Trust Certificates”) as described inthe Transferee Certificate to which this certification relates and to whichthis certification is an Annex:

 

1.             Asindicated below, the undersigned is the chief financial officer, a personfulfilling an equivalent function, or other executive officer of the entitypurchasing the Transferred Owner Trust Certificates (the “Transferee”).

 

2.             TheTransferee is a “qualified institutional buyer” as that term is defined in Rule144A under the Securities Act of 1933, as amended (“Rule 144A”), because(i) the Transferee owned and/or invested on a discretionary basis $___________in securities (other than the excluded securities referred to below) as of theend of the Transferee’s most recent fiscal year (such amount being calculatedin accordance with Rule 144A) and (ii) the Transferee satisfies the criteria inthe category marked below.

 

o                                    Corporation,etc.  The Transferee is acorporation (other than a bank, savings and loan association or similarinstitution), Massachusetts or similar statutory trust, partnership, or anyorganization described in Section 501(c)(3) of the Internal Revenue Codeof 1986, as amended.

 

o                                    Bank.  The Transferee (a) is a national bank or abanking institution organized under the laws of any state, U.S. territory orthe District of Columbia, the business of which is substantially confined tobanking and is supervised by the state or territorial banking commission orsimilar official or is a foreign bank or equivalent institution, and (b) has anaudited net worth of at least $25,000,000 as demonstrated in its latest annualfinancial statements, a copy of which is attached hereto, as of a datenot more than 16 months preceding the date of sale of the Owner TrustCertificate in the case of a U.S. bank, and not more than 18 months precedingsuch date of sale for a foreign bank or equivalent institution.

 

o                                    Savingsand Loan.  The Transferee (a) is asavings and loan association, building and loan association, cooperative bank,homestead association or similar institution, which is supervised and examinedby a state or federal authority having supervision over any such institutionsor is a foreign savings and loan association or equivalent institution and (b)has an audited net worth of at least $25,000,000 as demonstrated in its latestannual financial statements, a copy of which is attached hereto, as of adate not more than 16 months preceding the date of sale of the Owner TrustCertificate in the case of a U.S. savings and loan

 

B-2-3

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association, and not more than 18 months precedingsuch date of sale for a foreign savings and loan association or equivalentinstitution.

 

o                                    Broker-dealer.  The Transferee is a dealer registeredpursuant to Section 15 of the Securities Exchange Act of 1934, as amended.

 

o                                    InsuranceCompany.  The Transferee is aninsurance company whose primary and predominant business activity is thewriting of insurance or the reinsuring of risks underwritten by insurancecompanies and which is subject to supervision by the insurance commissioner ora similar official or agency of a state, U.S. territory or the District ofColumbia.

 

o                                    Stateor Local Plan.  The Transferee is aplan established and maintained by a state, its political subdivisions, or anyagency or instrumentality of the state or its political subdivisions, for thebenefit of its employees.

 

o                                    ERISAPlan.  The Transferee is an employeebenefit plan within the meaning of Title I of the Employee Retirement IncomeSecurity Act of 1974.

 

o                                    InvestmentAdvisor.  The Transferee is aninvestment advisor registered under the Investment Advisers Act of 1940, asamended.

 

o                                    Other.  (Please supply a brief description of theentity and a cross-reference to the paragraph and subparagraph undersubsection (a)(1) of Rule 144A pursuant to which it qualifies.  Note that registered investment companiesshould complete Annex 2 rather than this Annex 1.)

 

 

 

3.             Theterm “securities” as used herein does not include (i) securitiesof issuers that are affiliated with the Transferee, (ii) securities that arepart of an unsold allotment to or subscription by the Transferee, if theTransferee is a dealer, (iii) bank deposit notes and certificates of deposit, (iv)loan participations, (v) repurchase agreements, (vi) securities owned butsubject to a repurchase agreement and (vii) currency, interest rate andcommodity swaps.  For purposes ofdetermining the aggregate amount of securities owned and/or invested on adiscretionary basis by the Transferee, the Transferee did not include any ofthe securities referred to in this paragraph.

 

4.             Forpurposes of determining the aggregate amount of securities owned and/orinvested on a discretionary basis by the Transferee, the Transferee used thecost of such securities to the Transferee, unless the Transferee reports itssecurities holdings in its financial statements on the basis of their marketvalue, and no current information with respect to the cost of those securitieshas been published, in which case the securities were valued at market.  Further, in determining such aggregateamount, the Transferee may have included securities owned by subsidiaries ofthe Transferee, but only if such subsidiaries are consolidated with theTransferee in its financial statements prepared in accordance with generallyaccepted accounting principles and if the investments of such subsidiaries aremanaged under the Transferee’s direction. However, such securities were not included if the Transferee is amajority-owned,

 

B-2-4

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consolidated subsidiary of another enterprise and the Transferee is notitself a reporting company under the Securities Exchange Act of 1934, asamended.

 

5.             TheTransferee acknowledges that it is familiar with Rule 144A and understands thatthe Transferor and other parties related to the Transferred Owner TrustCertificates are relying and will continue to rely on the statements madeherein because one or more sales to the Transferee may be in reliance on Rule144A.

 
| o   | o  |   | Will the Transferee be purchasing the Transferred  Owner Trust Certificates only for the Transferee’s own |
|-----|----|--------|----------------------------------------------------------------------------------------------------------------|
| Yes | No |   | account?                                                                                                       |

 

6.             Ifthe answer to the foregoing question is “no”, then in each case where theTransferee is purchasing for an account other than its own, such accountbelongs to a third party that is itself a “qualified institutional buyer”within the meaning of Rule 144A, and the “qualified institutional buyer” statusof such third party has been established by the Transferee through one or moreof the appropriate methods contemplated by Rule 144A.

 

7.             TheTransferee will notify each of the parties to which this certification is madeof any changes in the information and conclusions herein.  Until such notice is given, the Transferee’spurchase of the Transferred Owner Trust Certificates will constitute areaffirmation of this certification as of the date of such purchase.  In addition, if the Transferee is a bank orsavings and loan as provided above, the Transferee agrees that it will furnishto such parties any updated annual financial statements that become availableon or before the date of such purchase, promptly after they become available.

 
|   |                      |   |
|--------|---------------------------|--------|
|   | Print Name of  Transferee |
|   |                      |
|   | By:                       |   |   |
|   | Name:                     |   |   |
|   | Title:                    |   |   |
|   | Date:                     |   |   |
|        |                           |        |  |  |  |

 

B-2-5

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**ANNEX 2 TO EXHIBIT B-2**

 

**QUALIFIED INSTITUTIONALBUYER STATUS UNDER SEC RULE 144A**

** **

*[for Transferees that are Registered Investment Companies]*

 

The undersignedhereby certifies as follows to [name of Transferor] (the “Transferor”)and [name of Certificate Registrar], as Certificate Registrar, with respect tothe Owner Trust Certificates being transferred (the “Transferred Owner TrustCertificates”) as described in the Transferee Certificate to which thiscertification relates and to which this certification is an Annex:

 

1.             As indicated below, the undersignedis the chief financial officer, a person fulfilling an equivalent function, orother executive officer of the entity purchasing the Transferred Certificates(the “Transferee”) or, if the Transferee is a “qualified institutionalbuyer” as that term is defined in Rule 144A under the Securities Act of 1933,as amended (“Rule 144A”), because the Transferee is part of a Family ofInvestment Companies (as defined below), is an executive officer of theinvestment adviser (the “Adviser”).

 

2.             The Transferee is a “qualifiedinstitutional buyer” as defined in Rule 144A because (i) the Transferee is aninvestment company registered under the Investment Company Act of 1940, asamended, and (ii) as masked below, the Transferee alone owned and/or investedon a discretionary basis, or the Transferee’s Family of Investment Companiesowned, at least $100,000,000 in securities (other than the excluded securitiesreferred to below) as of the end of the Transferee’s most recent fiscal year.For purposes of determining the amount of securities owned by the Transferee orthe Transferee’s Family of Investment Companies, the cost of such securities wasused, unless the Transferee or any member of the Transferee’s Family ofInvestment Companies, as the case may be, reports its securities holdings inits financial statements on the basis of their market value, and no currentinformation with respect to the cost of those securities has been published, inwhich case the securities of such entity were valued at market.

 

o                                    TheTransferee owned and/or invested on a discretionary basis$                                in securities (other than the excluded securities referred to below) as of theend of the Transferee’s most recent fiscal year (such amount being calculatedin accordance with Rule 144A).

 

o                                    TheTransferee is part of a Family of Investment Companies which owned in theaggregate$                                in securities (other than the excluded securities referred to below) as of theend of the Transferee’s most recent fiscal year (such amount being calculatedin accordance with Rule 144A).

 

3.             Theterm “Family of Investment Companies” as used herein means two or moreregistered investment companies (or series thereof) that have the sameinvestment adviser or investment advisers that are affiliated (by virtue ofbeing majority owned subsidiaries of the same parent or because one investmentadviser is a majority owned subsidiary of the other).

 

B-2-6

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4.             Theterm “securities” as used herein does not include (i) securities ofissuers that are affiliated with the Transferee or are part of the Transferee’sFamily of Investment Companies, (ii) bank deposit notes and certificates ofdeposit, (iii) loan participations, (iv) repurchase agreements, (v) securitiesowned but subject to a repurchase agreement and (vi) currency, interest rateand commodity swaps. For purposes of determining the aggregate amount ofsecurities owned and/or invested on a discretionary basis by the Transferee, orowned by the Transferee’s Family of Investment Companies, the securitiesreferred to in this paragraph were excluded.

 

5.             TheTransferee is familiar with Rule 144A and understands that the parties to whichthis certification is being made are relying and will continue to rely on thestatements made herein because one or more sales to the Transferee will be inreliance on Rule 144A.

 
| o   | o  |   | Will the Transferee be purchasing the Transferred  Owner Trust Certificates only for the Transferee’s |
|-----|----|--------|------------------------------------------------------------------------------------------------------------|
| Yes | No |   | own account?                                                                                               |

 

6.             If the answer to the foregoingquestion is “no”, then in each case where the Transferee is purchasing for anaccount other than its own, such account belongs to a third party that isitself a “qualified institutional buyer” within the meaning of Rule 144A, andthe “qualified institutional buyer” status of such third party has beenestablished by the Transferee through one or more of the appropriate methodscontemplated by Rule 144A.

 

7.             The undersigned will notify theparties to which this certification is made of any changes in the informationand conclusions herein.  Until suchnotice, the Transferee’s purchase of the Transferred Owner Trust Certificateswill constitute a reaffirmation of this certification by the undersigned as ofthe date of such purchase.

 

 
|   |                                 |   |
|--------|--------------------------------------|--------|
|   | Print Name of  Transferee or Adviser |
|   |                                 |
|   | By:                                  |   |   |
|   | Name:                                |   |   |
|   | Title:                               |   |   |
|   |                                 |
|   |                                 |
|   | IF AN ADVISER:                       |
|   |                                 |
|   |                                 |   |
|   | Print Name of  Transferee            |
|   |                                 |
|   | Date:                                |   |   |
|   |                                 |
|        |                                      |        |  |  |  |  |  |

 

B-2-7

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**EXHIBIT C-1**

** **

**FORMOF TRANSFER AFFIDAVIT**

** **

STATE OF                         )

: ss.:

COUNTY OF                     )

 

                                                       being duly sworn, deposes, represents and warrants as follows:

 

1.             I am a                                                       of                                                       (the ”Owner”) a corporation duly organized and existing under thelaws of                             ,the record owner of MORTGAGEIT SPV I, Owner Trust Certificates (the “OwnerTrust Certificates”), on behalf of whom I make this affidavit andagreement.  Capitalized terms used butnot defined herein have the respective meanings assigned thereto in the TrustAgreement, dated as of August 4, 2004 (the “Agreement”) amongMortgageIT, Inc., MortgageIT Holdings, Inc. and Wilmington Trust Company asowner trustee.

 

2.             The Owner (i) is and will be a“Permitted Transferee” as of                                     20      and (ii) is acquiring the Owner TrustCertificates for its own account or for the account of another Owner from whichit has received an affidavit in substantially the same form as this affidavit.

 

3.             The Owner is aware that theCertificate Registrar will not register the transfer of any Owner TrustCertificate unless the transferee, or the transferee’s agent, delivers to theCertificate Registrar, among other things, an affidavit in substantially thesame form as this affidavit.  The Ownerexpressly agrees that it will not consummate any such transfer if it knows orbelieves that any of the representations contained in such affidavit andagreement are false.

 

4.             The Owner consents to any additionalrestrictions or arrangements that shall be deemed necessary upon advice ofcounsel to constitute a reasonable arrangement to ensure that the Owner TrustCertificates will only be owned, directly or indirectly, by an Owner that is aPermitted Transferee.

 

5.             The Owner has reviewed therestrictions set forth on the face of the Owner Trust Certificates and theprovisions of Section 11.1 of the Agreement under which the Owner TrustCertificates were issued; and that the Owner expressly agrees to be bound by andto comply with such restrictions and provisions.

 

6.             The Owner will, in connection withany transfer that it makes of the Owner Trust Certificates, obtain from itstransferee the representations required by Section 11.1(d) of the Agreementunder which the Owner Trust Certificates were issued, or an affidavit insubstantially the same form as this affidavit, and will not consummate any suchtransfer if it knows, or knows facts that should lead it to believe, that anysuch representations are false.

 

C-1-1

----

 

7.             The Owner will, in connection withany transfer that it makes of the Owner Trust Certificates, deliver to theTrustee an affidavit, that it has no actual knowledge that the proposedtransferee is not a “Permitted Transferee”.

 

8.             The Owner is a citizen or residentof the United States, a corporation, partnership or other entity created ororganized in, or under the laws of the United States or any state thereof orthe District of Columbia, or an estate whose income from sources without theUnited States may be included in gross income for United States federal incometax purposes regardless of its connection with the conduct of a trade orbusiness within the United States or a trust other than a “foreign trust” asdefined in Section 7701(a)(31) of the Code.

 

IN WITNESS WHEREOF, the Owner has caused thisinstrument to be executed on its behalf, pursuant to the authority of its Boardof Directors, by its [Vice] President, attested by its [Assistant] Secretary,this             day of                         ,20     .

 
| [OWNER]                        |
|--------------------------------|
|                           |
| By:                            |   |   |
| Name:                          |
| Title:   [Vice] President |
|                           |
| ATTEST:                        |
|                           |
| By:                            |   |   |
| Name:                          |
| Title: [Assistant] Secretary   |

 

Personally appeared before me the above-named , knownor proved to me to be the same person who executed the foregoing instrument andto be a [Vice] President of the Owner, and acknowledged to me that [he/she]executed the same as [his/her] free act and deed and the free act and deed ofthe Owner.

 

Subscribed and sworn before me this            day of                              ,20     .

 
|                   |   |
|------------------------|--------|
| Notary Public          |
|                   |
| County of              |
|                   |
| State of               |
|                   |
| My Commission expires: |

 

C-1-2

----

 

**EXHIBIT C-2**

** **

**FORMOF TRANSFEROR AFFIDAVIT**

** **

STATE OF                         )

 

: ss.:

 

COUNTY OF                         )

 

                               ,being duly sworn, deposes, represents and warrants as follows:

 

1.             I am a                                        of                                                 (the “Owner”), a corporation duly organized and existing under the lawsof                         ,on behalf of whom I make this affidavit.

 

2.             The Owner understands that thePurchaser has delivered to the Certificate Registrar a transfer affidavit andagreement in the form attached as Exhibit C-1 to the Trust Agreement.  The Owner does not know or believe that anyrepresentation contained therein is false.

 

3.             Capitalized terms not otherwisedefined herein shall have the meanings ascribed to them in the Trust Agreement,dated as of August 4, 2004 (the “Trust Agreement”) among MortgageIT, Inc.,MortgageIT Holdings, Inc. and Wilmington Trust Company, as Owner Trustee.

 

IN WITNESS WHEREOF, the Owner has caused thisinstrument to be executed on its behalf, pursuant to the authority of its Boardof Directors, by its [Vice] President, attested by its [Assistant] Secretary,this             day of                          ,20      .

 
| [OWNER]                        |
|--------------------------------|
|                           |
| By:                            |   |   |
| Name:                          |
| Title:   [Vice] President |
|                           |
| ATTEST:                        |
|                           |
| By:                            |   |   |
| Name:                          |
| Title: [Assistant] Secretary   |

 

Personallyappeared before me the above-named                           ,known or proved to me to be the same person who executed the foregoinginstrument and to be a [Vice] President of the Owner, and acknowledged to methat [he/she] executed the same as [his/her] free act and deed and the free actand deed of the Owner.

 

C-2-1

----

 

Subscribed andsworn before me this           day of                             ,20     .

 
|                   |   |
|------------------------|--------|
| Notary Public          |
|                   |
| County of              |
|                   |
| State of               |
|                   |
| My Commission expires: |

 

C-2-2

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