EXHIBIT 3.1
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AMERICAN HOME MORTGAGE SECURITIES LLC,
AS DEPOSITOR
WILMINGTON TRUST COMPANY,
AS OWNER TRUSTEE
AND
DEUTSCHE BANK NATIONAL TRUST COMPANY,
NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS INDENTURE TRUSTEE,
CERTIFICATE REGISTRAR AND CERTIFICATE PAYING AGENT
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AMENDED AND RESTATED
TRUST AGREEMENT
DATED AS OF MARCH 23, 2005
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Trust Certificates,
Series 2005-1
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TABLE OF CONTENTS
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SECTION PAGE
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ARTICLE I
DEFINITIONS
Section 1.01 Definitions............................................................................6
Section 1.02 Other Definitional Provisions..........................................................6
ARTICLE II
ORGANIZATION
Section 2.01 Name...................................................................................8
Section 2.02 Office.................................................................................8
Section 2.03 Purposes and Powers....................................................................8
Section 2.04 Appointment of Owner Trustee...........................................................9
Section 2.05 Initial Capital Contribution of Owner Trust Estate.....................................9
Section 2.06 Declaration of Trust...................................................................9
Section 2.07 Liability of the Holders of the Certificates...........................................9
Section 2.08 Title to Trust Property...............................................................10
Section 2.09 Situs of Trust........................................................................10
Section 2.10 Representations and Warranties of the Depositor.......................................10
Section 2.11 Investment Company....................................................................11
Section 2.12 Transfer of Trust Estate to Owner Trustee.............................................11
ARTICLE III
CONVEYANCE OF THE MORTGAGE LOANS; CERTIFICATES
Section 3.01 Conveyance of the Mortgage Loans......................................................13
Section 3.02 Initial Ownership.....................................................................13
Section 3.03 The Certificates......................................................................13
Section 3.04 Authentication of Certificates........................................................14
Section 3.05 Registration of and Limitations on Transfer and Exchange of Certificates..............14
Section 3.06 Mutilated, Destroyed, Lost or Stolen Certificates.....................................17
Section 3.07 Persons Deemed Certificateholders.....................................................17
Section 3.08 Access to List of Certificateholders' Names and Addresses.............................17
Section 3.09 Maintenance of Office or Agency.......................................................17
Section 3.10 Certificate Paying Agent..............................................................18
ARTICLE IV
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 4.01 General Authority.....................................................................20
Section 4.02 General Duties........................................................................20
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Section 4.03 Action upon Instruction...............................................................20
Section 4.04 No Duties Except as Specified under Specified Documents or in Instructions............21
Section 4.05 Restrictions..........................................................................21
Section 4.06 Prior Notice to Certificateholders with Respect to Certain Matters....................21
Section 4.07 Action by Certificateholders with Respect to Certain Matters..........................22
Section 4.08 Action by Certificateholders with Respect to Bankruptcy...............................22
Section 4.09 Restrictions on Certificateholders' Power.............................................22
Section 4.10 Majority Control......................................................................22
Section 4.11 Optional Redemption...................................................................22
ARTICLE V
APPLICATION OF TRUST FUNDS
Section 5.01 Distributions.........................................................................24
Section 5.02 Method of Payment.....................................................................24
Section 5.03 Tax Returns...........................................................................24
Section 5.04 Statements to Certificateholders......................................................25
ARTICLE VI
Concerning the Owner Trustee
Section 6.01 Acceptance of Trusts and Duties.......................................................26
Section 6.02 Furnishing of Documents...............................................................27
Section 6.03 Representations and Warranties........................................................27
Section 6.04 Reliance; Advice of Counsel...........................................................28
Section 6.05 Limitation of Liability of Wilmington Trust Company...................................28
Section 6.06 Owner Trustee Not Liable for Certificates or Related Documents........................29
Section 6.07 Owner Trustee May Own Certificates and Notes..........................................29
Section 6.08 Payments from Owner Trust Estate......................................................29
Section 6.09 Doing Business in Other Jurisdictions.................................................29
Section 6.10 Liability of Certificate Registrar and Certificate Paying Agent.......................30
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.01 Owner Trustee's Fees and Expenses.....................................................31
Section 7.02 Indemnification.......................................................................31
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.01 Termination of Trust Agreement........................................................33
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
Section 9.01 Eligibility Requirements for Owner Trustee............................................35
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Section 9.02 Replacement of Owner Trustee..........................................................35
Section 9.03 Successor Owner Trustee...............................................................35
Section 9.04 Merger or Consolidation of Owner Trustee..............................................36
Section 9.05 Appointment of Co-Trustee or Separate Trustee.........................................36
ARTICLE X
Miscellaneous
Section 10.01 Amendments............................................................................38
Section 10.02 No Legal Title to Owner Trust Estate..................................................40
Section 10.03 Limitations on Rights of Others.......................................................40
Section 10.04 Notices...............................................................................40
Section 10.05 Severability..........................................................................41
Section 10.06 Separate Counterparts.................................................................41
Section 10.07 Successors and Assigns................................................................41
Section 10.08 No Petition...........................................................................41
Section 10.09 No Recourse...........................................................................41
Section 10.10 Headings..............................................................................41
Section 10.11 GOVERNING LAW.........................................................................41
Section 10.12 Integration...........................................................................41
Section 10.13 Benefits of Trust Agreement...........................................................42
Section 10.14 Separateness Covenants................................................................42
Section 10.15 Action by Certificateholders or Owner Trustee With Respect to Bankruptcy..............43
Section 10.16 Insurer's Rights Regarding Actions, Proceedings or Investigations.....................43
Section 10.17 Restrictions on Trust Activities......................................................44
Signatures ..........................................................................................40
EXHIBITS
Exhibit A - Form of Certificate ....................................................................A-1
Exhibit B - Certificate of Trust ...................................................................B-1
Exhibit C - Form of Rule 144A Investment Representation ............................................C-1
Exhibit D - Form of Certificate of Non-Foreign Status ..............................................D-1
Exhibit E - Form of Investment Letter ..............................................................E-1
Exhibit F - Form of Transferor Certificate .........................................................F-1
Exhibit G - Form of ERISA Letter ...................................................................G-1
Exhibit H - Form of Transferee Certificate .........................................................G-1
Exhibit I - Form of Lender Transferor Certificate ..................................................I-1
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This Amended and Restated Trust Agreement, dated as of March 23, 2005
(as amended from time to time, this "Trust Agreement"), among American Home
Mortgage Securities LLC, a Delaware limited liability company, as depositor (the
"Depositor"), Wilmington Trust Company, a Delaware banking corporation, as owner
trustee (the "Owner Trustee"), and Deutsche Bank National Trust Company, as
indenture trustee (in such capacity, the "Indenture Trustee"), certificate
registrar (in such capacity, the "Certificate Registrar") and certificate paying
agent (in such capacity, the "Certificate Paying Agent").
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the
Depositor and the Owner Trustee agree as follows:
WHEREAS, the Depositor and the Owner Trustee have previously entered
into the Trust Agreement dated as of March 21, 2005 (the "Trust Agreement").
WHEREAS, the parties hereto desire to amend the terms of and restate
the Trust Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Owner Trustee and Deutsche Bank National Trust Company, in its
capacity as Indenture Trustee, Certificate Registrar and Certificate Paying
Agent, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. For all purposes of this Trust Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in Appendix A to the Indenture, dated March 23, 2005,
between American Home Mortgage Investment Trust 2005-1, as Issuer, Xxxxx Fargo
Bank, N.A., as Securities Administrator and Deutsche Bank National Trust
Company, as Indenture Trustee, which is incorporated by reference herein. All
other capitalized terms used herein shall have the meanings specified herein.
Section 1.02 Other Definitional Provisions.
(a) All terms defined in this Trust Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used in this Trust Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
not defined in this Trust Agreement or in any such certificate or other
document, and accounting terms partly defined in this Trust Agreement or in any
such certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this Trust
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting
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principles, the definitions contained in this Trust Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Trust Agreement shall refer to this Trust Agreement as
a whole and not to any particular provision of this Trust Agreement; Article,
Section and Exhibit references contained in this Trust Agreement are references
to Articles, Sections and Exhibits in or to this Trust Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation".
(d) The definitions contained in this Trust Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
ARTICLE II
ORGANIZATION
Section 2.01 NAME. The trust created hereby (the "Trust") shall be
known as "American Home Mortgage Investment Trust 2005-1", in which name the
Owner Trustee may conduct the business of the Trust, make and execute contracts
and other instruments on behalf of the Trust and xxx and be sued.
Section 2.02 OFFICE. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in Delaware
as the Owner Trustee may designate by written notice to the Certificateholders
and the Depositor.
Section 2.03 PURPOSES AND POWERS. The purpose of the Trust is to
engage in the following activities:
(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Trust Agreement and to sell the Notes and
the Certificates;
(ii) to pay the organizational, start-up and transactional
expenses of the Trust;
(iii) to assign, grant, transfer, pledge and convey the
Mortgage Loans pursuant to the Indenture and to hold, manage and
distribute to the Certificateholder pursuant to Section 5.01 herein,
any portion of the Mortgage Loans released from the Lien of, and
remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the
Basic Documents to which it is to be a party;
(v) if directed by holders of Certificates representing
more than 50% of the beneficial interests in the Trust, sell the Trust
Estate subsequent to the discharge of the Indenture, all for the
benefit of the holders of the Certificates;
(vi) to engage in those activities, including entering
into agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(vii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholder and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Trust Agreement or the
Basic Documents.
Section 2.04 APPOINTMENT OF OWNER TRUSTEE. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
Section 2.05 INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Trust,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial corpus of the Trust and shall
be deposited in the Certificate Distribution Account. The Owner Trustee also
acknowledges on behalf of the Trust the receipt in trust of the Mortgage Loans,
the rights with respect to the Cap Contracts and Corridor Contract and the
rights with respect to the representations and warranties made by the Seller
under the Mortgage Loan Purchase Agreement which shall constitute the Owner
Trust Estate.
Section 2.06 DECLARATION OF TRUST. The Owner Trustee hereby declares
that it shall hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a "statutory trust"
under the Statutory Trust Statute and that this Trust Agreement constitute the
governing instrument of such statutory trust. It is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, the Trust (A) shall, as of the Closing Date and for so long as any
Notes are outstanding be treated for federal income tax purposes as a qualified
REIT subsidiary within the meaning of Section 856(i) of the Code, and thereafter
be disregarded as a separate entity (and if at any other time the Trust
Certificates are held by more than one person for federal income tax purposes,
shall be treated as a partnership), and (B) that each Class of Notes (other than
the Class N, Class X-0, Xxxxx X-0, Class M-6, Class M-7, Class M-8, Class B,
Class VIII-M-2, Class VIII-M-3, Class VIII-M-4, Class VIII-M-5 and Class
VIII-M-6 Notes or portions of these classes of Notes (the "Retained Notes"),
which at the time of issuance, American Home Mortgage Investment Corp. or one of
its qualified REIT subsidiaries acquires beneficial ownership thereof) shall be
debt, and the provisions of this Agreement shall be interpreted to further this
intention. The Retained Notes will not be considered issued and outstanding for
federal income tax purposes and will not treated as debt instruments for federal
income tax purposes while the same party or related parties hold the Retained
Notes and the Trust Certificates. Except as otherwise provided in this Trust
Agreement, the rights of the Certificateholder will be those of equity owners of
the Trust. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and in the Statutory Trust Statute
with respect to accomplishing the purposes of the Trust.
Section 2.07 LIABILITY OF THE HOLDERS OF THE CERTIFICATES. The
Holders of the Certificates shall be jointly and severally liable directly to
and shall indemnify any injured party for all losses, claims, damages,
liabilities and expenses of the Trust and the Owner Trustee (including Expenses,
to the extent not paid out of the Owner Trust Estate); provided, however, that
the Holders of the Certificates shall not be liable for payments required to be
made on the Notes or the Certificates, or for any losses incurred by a
Certificateholder in the capacity of an investor in the Certificates or a
Noteholder in the capacity of an investor in the Notes. The Holders of the
Certificates shall be liable for and shall promptly pay any entity level taxes
imposed on the Trust. In addition, any third party creditors of the Trust (other
than in connection with the obligations described in the second
preceding sentence for which the Holders of the Certificates shall not be
liable) shall be deemed third party beneficiaries of this paragraph. The
obligations of the Holders of the Certificates under this paragraph shall be
evidenced by the Certificates.
Section 2.08 TITLE TO TRUST PROPERTY. Except with respect to the
Mortgage Loans, which will be assigned to the Indenture Trustee pursuant to the
Indenture, legal title to the Owner Trust Estate shall be vested at all times in
the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Owner Trust Estate to be vested
in a trustee or trustees, in which case title shall be deemed to be vested in
the Owner Trustee, a co-trustee and/or a separate trustee, as the case may be.
Section 2.09 SITUS OF TRUST. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware. The
Trust shall not have any employees in any state other than Delaware; provided,
however, that nothing herein shall restrict or prohibit the Owner Trustee from
having employees within or without the State of Delaware or taking actions
outside the State of Delaware in order to comply with Section 2.03. Payments
will be received by the Trust only in Delaware, New York, Maryland or
California, and payments will be made by the Trust only from Delaware, Maryland,
California or New York. The only office of the Trust will be at the Corporate
Trust Office in Delaware or California.
Section 2.10 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The Depositor is duly organized and validly existing
as a limited liability company in good standing under the laws of the
State of Delaware, with power and authority to own its properties and
to conduct its business as such properties are currently owned and such
business is presently conducted.
(ii) The Depositor is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of its property or the conduct of its business shall require such
qualifications and in which the failure to so qualify would have a
material adverse effect on the business, properties, assets or
condition (financial or other) of the Depositor.
(iii) The Depositor has the power and authority to execute
and deliver this Trust Agreement and to carry out its terms; the
Depositor has full power and authority to convey and assign the
property to be conveyed and assigned to and deposited with the Trust as
part of the Owner Trust Estate and the Depositor has duly authorized
such conveyance and assignment and deposit to the Trust by all
necessary corporate action; and the execution, delivery and performance
of this Trust Agreement have been duly authorized by the Depositor by
all necessary corporate action.
(iv) The consummation of the transactions contemplated by
this Trust Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the certificate of formation or the limited liability agreement
or
bylaws of the Depositor, or any indenture, agreement or other
instrument to which the Depositor is a party or by which it is bound;
nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Basic Documents); nor
violate any law or, to the best of the Depositor's knowledge, any
order, rule or regulation applicable to the Depositor of any court or
of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or
its properties.
(v) The Trust is not required to register as an
investment company under the Investment Company Act and is not under
the control of a Person required to so register.
(vi) The Depositor has been a "qualified REIT subsidiary"
as defined in Section 856(i) of the Code throughout its existence.
Section 2.11 INVESTMENT COMPANY. Neither the Depositor nor any holder
of a Certificate shall take any action which would cause the Trust to become an
"investment company" which would be required to register under the Investment
Company Act.
Section 2.12 TRANSFER OF TRUST ESTATE TO OWNER TRUSTEE. (a) Effective
as of the date hereof, the Depositor does hereby assign, transfer, and otherwise
convey to, and deposit with, the Trust, until this Agreement terminates pursuant
to Section 8.01, the entire Trust Estate, such conveyance to be made in exchange
for the Notes and the Certificates. Such assignment includes, without
limitation, all amounts payable to and all rights of the holder of the
Collateral pursuant to this Agreement.
The conveyance of the Collateral and all other assets constituting the
Trust Estate by the Depositor as contemplated hereby is absolute and is intended
by the parties to constitute a sale of the Collateral and all other assets
constituting the Trust Estate by the Depositor to the Trust. It is, further, not
intended that such conveyance be deemed a pledge of security for a loan. If such
conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor also
intends and agrees that, in such event:
(i) this Agreement shall constitute a security agreement
under applicable law and shall be deemed to create a valid and
continuing security interest (as defined in the applicable UCC) in the
Trust Estate (including, without limitation, the Collateral, the
Certificate Distribution Account and any proceeds thereof) in favor of
the Trust, which security interest is prior to all other Liens, and is
enforceable as such as against creditors of and purchasers from the
Depositor;
(ii) other than the security interest granted to the Trust
pursuant to this Agreement, Depositor has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Trust
Estate, has not authorized the filing of and is not aware of any
financing statements against the Trust Estate that includes a
description of collateral covering the Trust Estate other than any
financing statements relating to the
security interest granted to the Trust hereunder or that has been
terminated. The Depositor is not aware of any judgment or tax lien
filings against Depositor;
(iii) the Depositor owns and has good and marketable title
to the Trust Estate free and clear of any Lien, claim or encumbrance of
any Person;
(iv) the Certificate Distribution Account constitutes a
"deposit account" within the meaning of the applicable UCC, and the
Depositor has directed the Certificate Paying Agent to become the
account holder of the Certificate Distribution Account. The Certificate
Distribution Account is not in the name of any Person other than as
provided in Section 3.10 of this Agreement. The Depositor has not
consented to the maintenance of the Certificate Distribution Account in
compliance with instructions of any Person other than the Certificate
Paying Agent;
(v) the Trust Estate (excluding the Certificate
Distribution Account and any proceeds thereof) constitutes "general
intangibles" within the meaning of the applicable UCC. The Depositor
has received all required consents and approvals to the pledge of the
portions of the Trust Estate (excluding the Certificate Distribution
Account and any proceeds thereof) constituting payment intangibles;
(vi) the Depositor has caused or will have caused, within
ten days of the Closing Date, the filing of all appropriate financing
statements in the appropriate filing offices under applicable law in
order to perfect the security interest in the Trust Estate granted to
the Trust hereunder. All financing statements filed or to be filed
against the Depositor in favor of the Trust (or any subsequent
assignee, including, without limitation, the Indenture Trustee) in
connection herewith describing the Trust Estate contain a statement to
the following effect, "A purchase of, or security interest in, any
collateral described in this financing statement will violate the
rights of the secured party;" and
(vii) the Depositor shall, to the extent consistent with
this Agreement, take such additional reasonable actions as may be
necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans and the other assets of the
Trust Estate, such security interest would be a perfected security
interest of first priority under applicable law and will be maintained
as such throughout the life of this Agreement. Notifications to, and
acknowledgments, receipts or confirmations from, Persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or
agents (as applicable) of the Owner Trustee on behalf of the Trust (or
any subsequent assignee, including, without limitation, the Indenture
Trustee) for the purpose of perfecting such security interest under
applicable law.
(b) The Owner Trustee hereby acknowledges the receipt by it of the
Trust Estate and such other documents and instruments referenced above, and
declares that it holds and will hold the Trust Estate and such documents and
instruments and that it holds and will hold all other assets and documents to be
included in the Trust Estate, in trust for the exclusive use and benefit of all
present and future Certificateholders.
(c) Except as expressly provided in Section 8.01, neither the
Depositor nor any Certificateholder shall be able to revoke the Trust
established hereunder. Except as provided in Sections 2.08, 4.01, 4.02, 4.03,
5.01 and 8.01 hereof, the Owner Trustee or Certificate Paying Agent (as
applicable) shall not assign, sell, dispose of or transfer any interest in, nor
may the Depositor or any Certificateholder withdraw from the Trust, the
Collateral or other asset constituting the Trust Estate.
ARTICLE III
CONVEYANCE OF THE MORTGAGE LOANS; CERTIFICATES
Section 3.01 CONVEYANCE OF THE MORTGAGE LOANS. The Depositor,
concurrently with the execution and delivery hereof, does hereby contribute,
transfer, convey and assign to the Trust, on behalf of the Holders of the Notes
and the Certificates, without recourse, all its right, title and interest in and
to the Mortgage Loans, including all interest and principal received on or with
respect to the Mortgage Loans after the Cut-off Date (other than payments of
principal and interest due on the Mortgage Loans on or before the Cut-off Date).
In addition, the Depositor hereby assigns to the Trust all of its right, title,
and interest in, to, and under the Mortgage Loan Purchase Agreement. In
addition, the Depositor hereby assigns to the Trust all of its right, title and
interest in, to, and under the Cap Contracts, Corridor Contract and the
Insurance Policy.
The conveyance of the Mortgage Loans by the Depositor to the Trust
hereunder is intended to facilitate the simultaneous issuance of the Notes under
the Indenture and issuance of the Certificates hereunder to the Depositor as
Holder. The Depositor intends to sell the Certificates to an affiliate of the
Depositor and the Seller. Accordingly, at the time of the transaction set forth
herein, the Depositor will retain without interruption, through the ownership of
the Certificates, the economic benefits associated with ownership of the
Mortgage Loans as well as the economic burdens associated with such ownership,
subject to the lien of the Indenture and subject to this Agreement. If the
transactions contemplated by this Trust Agreement are determined to constitute a
financing, the Depositor hereby grants to the Trust a security interest in the
Owner Trust Estate and all distributions thereon and proceeds thereof, and this
Trust Agreement shall constitute a security agreement under applicable law.
Section 3.02 INITIAL OWNERSHIP. Upon the formation of the Trust by
the contribution by the Depositor pursuant to Section 2.05 and until the
conveyance of the Mortgage Loans pursuant to Section 3.01 and the issuance of
the Certificates, and thereafter except as otherwise permitted hereunder, the
Depositor shall be the sole Certificateholder.
Section 3.03 THE CERTIFICATES. The Certificates shall be issued in
the form of one or more Certificates, each representing not less than a 10%
Certificate Percentage Interest. The Certificates (which includes the Transferor
Interest) shall initially be registered in the name of American Home Mortgage
Acceptance, Inc. The Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of an authorized officer of the Owner Trustee and
authenticated in the manner provided in Section 3.04. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefit of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of such
Certificates. A Person shall become a Certificateholder and shall be entitled to
the rights and subject to the obligations of a Certificateholder hereunder upon
such Person's acceptance of a Certificate duly registered in such Person's name,
pursuant to Section 3.05.
A transferee of a Certificate shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a Certificate
duly registered in such transferee's name pursuant to and upon satisfaction of
the conditions set forth in Section 3.05.
Section 3.04 AUTHENTICATION OF CERTIFICATES. The Owner Trustee shall
cause all Certificates issued hereunder to be executed and authenticated on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor, in authorized
denominations. No Certificate shall entitle its holder to any benefit under this
Trust Agreement or be valid for any purpose unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Owner Trustee or the Certificate Registrar by
manual signature; such authentication shall constitute conclusive evidence that
such Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
Section 3.05 REGISTRATION OF AND LIMITATIONS ON TRANSFER AND EXCHANGE
OF CERTIFICATES. The Certificate Registrar shall keep or cause to be kept, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Indenture Trustee shall be the initial Certificate Registrar. If the
Certificate Registrar resigns or is removed, the Owner Trustee shall appoint a
successor Certificate Registrar.
Subject to satisfaction of the conditions set forth below with respect
to the Certificate, upon surrender for registration of transfer of any
Certificate at the office or agency maintained pursuant to Section 3.09, the
Owner Trustee or the Certificate Registrar shall execute, authenticate and
deliver in the name of the designated transferee or transferees, one or more new
Certificates in authorized denominations of a like aggregate amount and dated
the date of authentication by the Owner Trustee or the Certificate Registrar. At
the option of a Holder, Certificates may be exchanged for other Certificates of
authorized denominations of a like aggregate amount, upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.09.
Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Certificate Registrar in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
No transfer or assignment of any Certificate shall be made without the
prior written consent of the Insurer, provided that such consent shall not be
unreasonably withheld.
No Person shall become a Certificateholder until it shall establish its
non-foreign status by submitting to the Certificate Paying Agent an IRS Form W-9
and the Certificate of Non-Foreign Status set forth in Exhibit D hereto.
No transfer, sale, pledge or other disposition of a Certificate shall
be made unless such transfer, sale, pledge or other disposition is exempt from
the registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) (a) an investment
letter in substantially the form attached hereto as Exhibit C which investment
letter shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar, Securities Administrator, the RMBS Master Servicer, the HELOC Back-up
Servicer, the RMBS Servicer, the HELOC Servicer, the Seller or the Depositor and
which investment letter states that, among other things, such transferee (1) is
a "qualified institutional buyer" as defined under Rule 144A, acting for its own
account or the accounts of other "qualified institutional buyers" as defined
under Rule 144A, and (2) is aware that the proposed transferor intends to rely
on the exemption from registration requirements under the Securities Act of
1933, as amended, provided by Rule 144A or (ii) (a) a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Certificate
Registrar that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from said Act and laws or is
being made pursuant to said Act and laws, which Opinion of Counsel shall not be
an expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Securities Administrator, the RMBS Master Servicer, the HELOC Back-up Servicer,
the RMBS Servicer, the HELOC Servicer, the Seller or the Depositor and (b) the
transferee executes a representation letter, substantially in the form of
Exhibit F to the Agreement, and the transferor executes a representation letter,
substantially in the form of Exhibit E hereto, each acceptable to and in form
and substance satisfactory to the Certificate Registrar, certifying the facts
surrounding such transfer, which representation letters shall not be an expense
of the Trust, the Owner Trustee, the Certificate Registrar, the Securities
Administrator, the RMBS Master Servicer, the HELOC Back-up Servicer, the RMBS
Servicer, the HELOC Servicer, the Seller or the Depositor and (B) the
Certificate of Non-Foreign Status (in substantially the form attached hereto as
Exhibit D) acceptable to and in form and substance reasonably satisfactory to
the Certificate Registrar, which certificate shall not be an expense of the
Trust, the Owner Trustee, the Certificate Registrar or the Depositor; provided,
however that no certification or Opinion of Counsel will be required in
connection with the initial transfer of any such Certificate by the Depositor to
an affiliate of the Depositor. The Holder of a Certificate desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trust, the Owner
Trustee, the Certificate Registrar, the Master Servicers and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
No transfer of Certificates or any interest therein shall be made to
any Person unless the Depositor, the Owner Trustee, the Indenture Trustee, the
Certificate Registrar, the HELOC Back-up Servicer, the HELOC Servicer and the
RMBS Servicer are provided with an Opinion of Counsel which establishes to the
satisfaction of the Certificate Registrar that the purchase of Certificates,
operation of the Trust and management of Trust assets are permissible under
applicable law, will not constitute or result in any prohibited transaction
under ERISA or Section 4975 of the Code and will not subject the Depositor, the
Owner Trustee, the Certificate Registrar the Securities Administrator, the RMBS
Master Servicer, the HELOC Back-up Servicer, the RMBS Servicer, the HELOC
Servicer or the Seller to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Depositor, the Owner Trustee, the Indenture Trustee, the Certificate
Registrar, the Securities Administrator, the RMBS Master Servicer, the HELOC
Back-up Servicer, the RMBS Servicer, the HELOC Servicer or the Seller. In lieu
of such Opinion of Counsel, a Person acquiring such Certificates may provide a
certification in the form of Exhibit G to this Agreement to the Depositor, the
Owner Trustee and the Certificate Registrar, which the Depositor, the Owner
Trustee, the Indenture Trustee, the Certificate Registrar, the Securities
Administrator, the RMBS Master Servicer, the HELOC Back-up Servicer, the RMBS
Servicer, the HELOC Servicer and the Seller may rely upon without further
inquiry or investigation. Neither an Opinion of Counsel nor a certification will
be required in connection with the initial transfer of any such Certificate by
the Depositor to an affiliate of the Depositor (in which case, the Depositor or
any affiliate thereof shall be deemed to have represented that such affiliate is
not a Plan or a Person investing Plan Assets of any Plan) and the Owner Trustee
and the Certificate Registrar shall be entitled to conclusively rely upon a
representation (which, upon the request of the Owner Trustee or the Certificate
Registrar, shall be a written representation) from the Depositor of the status
of such transferee as an affiliate of the Depositor.
No person shall become a Certificateholder, so long as any Notes are
Outstanding, until it shall establish its status as a real estate investment
trust ("REIT") or as a "qualified REIT subsidiary" ("QRS") within the meaning of
Section 856(a) or Section 856(i) of the Code, respectively, by submitting to the
Certificate Registrar and the Owner Trustee and the Transferee Certificate set
forth in Exhibit H hereto.
No offer, sale, transfer, pledge, hypothecation or other disposition
(including any pledge, sale or transfer under a repurchase transaction or
securities loan) of any Certificate shall be made to any transferee unless,
prior to such disposition, the proposed transferor delivers to the Certificate
Registrar (i) an Opinion of Counsel, rendered by a law firm generally recognized
to be qualified to opine concerning the tax aspects of asset securitization, to
the effect that such transfer (including any disposition permitted following any
default under any pledge or repurchase transaction) will not cause the Trust to
be no longer be treated for federal income tax purposes as a "qualified REIT
subsidiary" within the meaning of Section 856(i) of the Code and (ii) a
certificate that stating that any Certificates may be transferred by the related
lender under any such related loan agreement or repurchase agreement upon a
default under any such indebtedness, in which case the transferor shall deliver
to the Certificate Registrar, the Owner Trustee and the Indenture Trustee
substantially in the form attached hereto as Exhibit I certifying to such
effect. Notwithstanding the foregoing, the provisions of this paragraph shall
not apply to the initial transfer of the Certificates to the Depositor.
No offer, sale, transfer or other disposition (including pledge) of any
Certificate shall be made to any affiliate of the Depositor or the Issuer, other
than the initial transfer of the Certificates to the Depositor.
Section 3.06 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If
(a) any mutilated Certificate shall be surrendered to the Certificate Registrar,
or if the Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (b) there shall be
delivered to the Certificate Registrar and the Owner Trustee such security or
indemnity as may be required by them to save each of them harmless, then in the
absence of notice to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a bona fide purchaser, the Owner Trustee shall
execute on behalf of the Trust, and the Owner Trustee or the Certificate
Registrar shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and denomination. In connection with the issuance of any new Certificate
under this Section 3.06, the Owner Trustee or the Certificate Registrar may
require the payment of a sum sufficient to cover any expenses of the Owner
Trustee or the Certificate Registrar (including fees and expenses of counsel)
and any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section 3.06 shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
With respect to the restriction on transfer of the Certificates
contained in this Section 3.05, any transferor providing an Opinion of Counsel
shall (i) deliver such opinion to the appropriate addresses, (ii) confirm the
acceptability of such opinion with the applicable addressees and (iii) inform
the Note Registrar of delivery and confirmation described in clause (i) and
clause (ii).
Section 3.07 PERSONS DEEMED CERTIFICATEHOLDERS. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee,
the Certificate Registrar or any Certificate Paying Agent may treat the Person
in whose name any Certificate is registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 5.01 and for all other purposes whatsoever, and none of the Trust, the
Owner Trustee, the Certificate Registrar or any Certificate Paying Agent shall
be bound by any notice to the contrary.
Section 3.08 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Certificate Registrar shall furnish or cause to be furnished to
the Depositor, the Certificate Paying Agent, the Insurer or the Owner Trustee,
within 15 days after receipt by the Certificate Registrar of a written request
therefor from the Depositor, the Insurer, the Certificate Paying Agent or the
Owner Trustee, a list, in such form as the Depositor, the Certificate Paying
Agent, the Insurer or the Owner Trustee, as the case may be, may reasonably
require, of the names and addresses of the Certificateholders as of the most
recent record date. Each Holder, by receiving and holding a Certificate, shall
be deemed to have agreed not to hold any of the Trust, the Depositor, the
Certificate Paying Agent, the Certificate Registrar or the Owner Trustee
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 3.09 MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee on
behalf of the Trust, shall maintain an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Owner Trustee in respect of the
Certificates and the Basic Documents may be delivered. The Owner Trustee
initially designates the office of the Indenture Trustee for purposes of service
of notices and demands and surrender. The Owner Trustee shall give prompt
written notice to the
Depositor, the Certificate Paying Agent, the Certificate Registrar and the
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
Section 3.10 CERTIFICATE PAYING AGENT. (a) The Certificate Paying Agent
shall make distributions to Certificateholders from the Certificate Distribution
Account on behalf of the Trust in accordance with the provisions of the
Certificates and the statement for such Payment Date provided by the Securities
Administrator, in accordance with Section 7.05 of the Indenture hereof from
payments remitted to the Certificate Paying Agent by the Indenture Trustee
pursuant to Section 3.05 of the Indenture. The Trust hereby appoints the
Indenture Trustee as Certificate Paying Agent and the Indenture Trustee hereby
accepts such appointment and further agrees that it will be bound by the
provisions of this Trust Agreement relating to the Certificate Paying Agent and
shall:
(i) hold all sums held by it for the payment of amounts
due with respect to the Certificates in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(ii) give the Owner Trustee notice of any default by the
Trust of which a Responsible Officer of the Certificate Paying Agent
has actual knowledge in the making of any payment required to be made
with respect to the Certificates;
(iii) at any time during the continuance of any such
default, upon the written request of the Owner Trustee forthwith pay to
the Owner Trustee on behalf of the Trust all sums so held in Trust by
such Certificate Paying Agent;
(iv) not resign from its position as Certificate Paying
Agent so long as it is Indenture Trustee except that it shall
immediately resign as Certificate Paying Agent and forthwith pay to the
Owner Trustee on behalf of the Trust all sums held by it in trust for
the payment of Certificates if at any time it ceases to meet the
standards under this Section 3.10 required to be met by the Certificate
Paying Agent at the time of its appointment;
(v) comply with all requirements of the Code with respect
to the withholding from any payments made by it on any Certificates of
any applicable withholding taxes imposed thereon and with respect to
any applicable reporting requirements in connection therewith; and
(vi) not institute bankruptcy proceedings against the
Issuer in connection with this Trust Agreement.
(b) The Trust may revoke such power and remove the Certificate
Paying Agent if it determines in its sole discretion that the Certificate Paying
Agent shall have failed to perform its obligations under this Trust Agreement in
any material respect. In the event that the Indenture Trustee shall no longer be
the Certificate Paying Agent under this Trust Agreement and Paying Agent under
the Indenture, the Owner Trustee shall appoint a successor to act as Certificate
Paying Agent (which shall be a bank or trust company) and which shall also be
the successor Paying Agent under the Indenture. The Owner Trustee shall cause
such successor Certificate Paying Agent or any additional Certificate Paying
Agent appointed by the Owner Trustee to
execute and deliver to the Owner Trustee an instrument to the effect set forth
in Section 3.10(a) as it relates to the Certificate Paying Agent. The
Certificate Paying Agent shall return all unclaimed funds to the Trust and upon
removal of a Certificate Paying Agent such Certificate Paying Agent shall also
return all funds in its possession to the Trust. The provisions of Sections
6.01, 6.04, 6.05, 6.06, 6.07, 6.08 and 7.01 shall apply to the Certificate
Paying Agent to the same extent applicable to the Owner Trustee except the
context requires otherwise. Any reference in this Agreement to the Certificate
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
The Certificate Paying Agent shall establish and maintain with itself a
trust account (the "Certificate Distribution Account") in which the Certificate
Paying Agent shall deposit, on the same day as it is received from the Indenture
Trustee, each remittance received by the Certificate Paying Agent with respect
to payments made pursuant to the Indenture. Funds in the Certificate
Distribution Account shall not be invested. The Certificate Paying Agent shall
make all distributions to Certificates, from moneys on deposit in the
Certificate Distribution Account, in accordance with Section 5.01 hereof.
ARTICLE IV
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 4.01 GENERAL AUTHORITY. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment or other agreement or instrument described herein, as evidenced
conclusively by the Owner Trustee's execution thereof. In addition to the
foregoing, the Owner Trustee is authorized, but shall not be obligated, except
as otherwise provided in this Trust Agreement, to take all actions required of
the Trust pursuant to the Basic Documents.
Section 4.02 GENERAL DUTIES. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Trust Agreement and the Basic Documents to which
the Trust is a party and to administer the Trust in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Trust Agreement.
Section 4.03 ACTION UPON INSTRUCTION. (a) Subject to Article IV and
in accordance with the terms of the Basic Documents, the Certificateholders may
by written instruction direct the Owner Trustee in the management of the Trust.
Such direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document if the Owner
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is required to decide between
alternative courses of action permitted or required by the terms of this Trust
Agreement or under any Basic Document, or in the event that the Owner Trustee is
unsure as to the application of any provision of this Trust Agreement or any
Basic Document or any such provision is ambiguous as to its application, or is,
or appears to be, in conflict with any other applicable provision, or in the
event that this Trust Agreement permits any determination by the Owner Trustee
or is silent or is incomplete as to the course of action that the Owner Trustee
is required to take with respect to a particular set of facts, the Owner Trustee
shall promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting instruction as to the course
of action to be adopted, and to the extent the Owner Trustee acts in good faith
in accordance with any written instruction of the Certificateholders and, so
long as the Class IX-A Notes are outstanding, with the prior written consent of
the Insurer, the Owner Trustee shall not be liable on account of such action to
any Person. If the Owner Trustee shall not have received appropriate instruction
within 10 days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this
Trust Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for such action or inaction.
Section 4.04 NO DUTIES EXCEPT AS SPECIFIED UNDER SPECIFIED DOCUMENTS
OR IN INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Trust Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 4.03; and no implied duties or obligations
shall be read into this Trust Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Trust Agreement or any Basic Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Owner Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the Owner
Trust Estate.
Section 4.05 RESTRICTIONS. (a) The Owner Trustee or the Depositor (or
an Affiliate thereof) shall not take any action (x) that is inconsistent with
the purposes of the Trust set forth in Section 2.03, (y) that, to the actual
knowledge of the Owner Trustee based on an Opinion of Counsel rendered by a law
firm generally recognized to be qualified to opine concerning the tax aspects of
asset securitization, would result in the Trust becoming taxable as a
corporation for federal income tax purposes or (z) would result in the amendment
or modification of the Basic Documents or this Trust Agreement. The
Certificateholders shall not direct the Owner Trustee to take action that would
violate the provisions of this Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the
Trust's properties or assets, including those included in the Trust Estate, to
any person unless (a) it shall have received an Opinion of Counsel rendered by a
law firm generally recognized to be qualified to opine concerning the tax
aspects of asset securitization to the effect that such transaction will not
have any material adverse tax consequence to the Trust or any Certificateholder
and (b) such conveyance or transfer shall not violate the provisions of Section
3.16(b) of the Indenture.
Section 4.06 PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO
CERTAIN MATTERS. With respect to the following matters, the Owner Trustee shall
not take action unless at least 30 days before the taking of such action, the
Owner Trustee shall have notified the Certificateholders and the Insurer in
writing of the proposed action and the Certificateholders shall not have
notified the Owner Trustee in writing prior to the 30th day after such notice is
given that such Certificateholders have withheld consent or provided alternative
direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of cash
distributions due and owing under the
Mortgage Loans) and the compromise of any action, claim or lawsuit brought by or
against the Trust (except with respect to the aforementioned claims or lawsuits
for collection of cash distributions due and owing under the Mortgage Loans);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
Statutory Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
and
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Trust Agreement
of a successor Certificate Registrar or Certificate Paying Agent or the consent
to the assignment by the Note Registrar, Paying Agent, Indenture Trustee,
Certificate Registrar or Certificate Paying Agent of its obligations under the
Indenture or this Trust Agreement, as applicable.
Section 4.07 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders, and except as expressly provided in the Basic
Documents, to sell the Mortgage Loans after the termination of the Indenture.
The Owner Trustee shall take the actions referred to in the preceding sentence
only upon written instructions signed by the Certificateholders.
Section 4.08 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY.
The Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust except as specifically set forth Section 10.15
hereof.
Section 4.09 RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. The
Certificateholders shall not direct the Owner Trustee to take or to refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Trust Agreement or any of the Basic
Documents or would be contrary to Section 2.03, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
Section 4.10 MAJORITY CONTROL. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Trust
Agreement may be taken by the Holders of Certificates evidencing not less than a
majority Percentage Interest of the Certificates. Except as expressly provided
herein, any written notice of the Certificateholders delivered pursuant to this
Trust Agreement shall be effective if signed by Holders of Certificates
evidencing not less than a majority Percentage Interest of the Certificates at
the time of the delivery of such notice.
Section 4.11 OPTIONAL REDEMPTION. Upon receipt of written
instructions provided to the Owner Trustee by the Majority Certificateholder, if
any, or the Insurer, the Owner Trustee shall cause the Issuer to redeem the
Notes in accordance with Section 8.07 of the Indenture and shall provide all
necessary notices on behalf of the Issuer to effect the foregoing, provided that
such Holder shall deposit with the Indenture Trustee an amount equal to the
aggregate redemption price
specified under Section 8.07 of the Indenture. The Owner Trustee shall not have
the power to exercise the right of the Issuer to redeem the Notes pursuant to
Section 8.07 of the Indenture, except as provided above. Upon redemption of the
Notes by the Issuer as a result of the purchase of such Notes by the Majority
Certificateholder or the Insurer pursuant to Section 8.07 of the Indenture, as
applicable, the Owner Trustee shall cause the release of the related Mortgage
Loans or HELOC Mortgage Loans from the Trust Estate to the Majority
Certificateholder or the Insurer, as applicable.
ARTICLE V
APPLICATION OF TRUST FUNDS
Section 5.01 DISTRIBUTIONS. 1) On each Payment Date, the Certificate
Paying Agent shall distribute to the Certificateholders, on a pro rata basis
based on the Certificate Percentage Interests thereof, all funds on deposit in
the Certificate Distribution Account and available therefor (as provided in
Section 3.05, 3.06, 3.07 and 3.09 of the Indenture, in accordance with the
statement for such Payment Date provided by the Securities Administrator
pursuant to Section 7.05 of the Indenture) for such Payment Date as reduced by
any amount then owing to the Owner Trustee hereunder and any Expenses of the
Trust then remaining unpaid.
(b) In the event that any withholding tax is imposed on the
distributions (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in accordance
with this Section 5.01. The Certificate Paying Agent is hereby authorized and
directed to retain or cause to be retained from amounts otherwise distributable
to the Certificateholders sufficient funds for the payment of any tax that is
legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such Certificateholder
at the time it is withheld by the Certificate Paying Agent and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Certificate Paying Agent may in its sole discretion
withhold such amounts in accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to
the creditors of the Trust, including the Noteholders and the Insurer.
Section 5.02 METHOD OF PAYMENT. Subject to Section 8.01(c),
distributions required to be made to Certificateholders on any Payment Date as
provided in Section 5.01 shall be made to each Certificateholder of record on
the preceding record date by wire transfer, in immediately available funds, to
the account of such Holder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five Business
Days prior to such Payment Date or, if not, by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
Section 5.03 TAX RETURNS. The Securities Administrator shall (a)
maintain (or cause to be maintained) the books of the Trust on a calendar year
basis using the accrual method of accounting, (b) deliver to the Indenture
Trustee to be forwarded to each Noteholder and to the Certificate Registrar to
be forwarded to each Certificateholder as may be required by the Code and
applicable Treasury Regulations, such information as may be required to enable
each Certificateholder to prepare its federal and state income tax returns, (c)
prepare and file or cause to be prepared and filed such tax returns relating to
the Trust as may be required by the Code and applicable Treasury Regulations
(making such elections as may from time to time be required or appropriate under
any applicable state or federal statutes, rules or regulations); provided,
however,
that the Securities Administrator shall not be required to (x) compute the
Issuer's gross income, (y) prepare and file corporation tax returns on behalf of
the Trust or (z) calculate and/or report any "excess inclusions" with respect to
the Certificates, and provided, further, that the Securities Administrator shall
not be required to prepare and file partnership tax returns on behalf of the
Issuer or do any additional tax work caused by any change in the tax treatment
of the Notes or the Trust from the treatment contemplated hereunder on the
Closing Date unless the Securities Administrator receives (i) an Opinion of
Counsel reasonably satisfactory to it (which shall not be at the Securities
Administrator's expense, but shall be at the expense of the Depositor or other
party furnishing such opinion) as to the necessity of such filings and (ii)
reasonable additional compensation for the preparation and filing of such
additional returns. The Owner Trustee shall sign all tax and information returns
prepared or caused to be prepared by the Securities Administrator pursuant to
this Section 5.03 at the request of the Securities Administrator, and in doing
so shall rely entirely upon, and shall have no liability for information or
calculations provided by, the Securities Administrator. There shall be no
separate tax reporting requirements with respect to the Transferor Interest.
The Certificate Registrar shall collect or cause to be collected any
withholding tax as described in and in accordance with Section 5.01 of this
Trust Agreement with respect to income or distributions to Certificateholders.
The Paying Agent shall prepare or cause to be prepared the appropriate
forms relating to the collection of withholding tax by the Certificate
Registrar.
Section 5.04 STATEMENTS TO CERTIFICATEHOLDERS. On each Payment Date,
the Securities Administrator shall make available to each Certificateholder the
statement or statements provided to the Owner Trustee and the Certificate Paying
Agent by the Securities Administrator pursuant to Section 7.05 of the Indenture
with respect to such Payment Date.
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.01 ACCEPTANCE OF TRUSTS AND DUTIES. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Trust Agreement. The
Owner Trustee and the Certificate Paying Agent also agree to disburse all moneys
actually received by each of them constituting part of the Owner Trust Estate
upon the terms of the Basic Documents and this Trust Agreement. The Owner
Trustee shall not be answerable or accountable hereunder or under any Basic
Document under any circumstances, except (i) for its own willful misconduct,
gross negligence or bad faith or grossly negligent failure to act or (ii) in the
case of the inaccuracy of any representation or warranty contained in Section
6.03 expressly made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
(a) The Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the instructions of
the Certificateholders permitted under this Trust Agreement;
(b) No provision of this Trust Agreement or any Basic Document
shall require the Owner Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its rights, duties or
powers hereunder or under any Basic Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(c) Under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(d) The Owner Trustee shall not be responsible for or in respect
of the validity or sufficiency of this Trust Agreement or for the due execution
hereof by the Depositor or for the form, character, genuineness, sufficiency,
value or validity of any of the Owner Trust Estate, or for or in respect of the
validity or sufficiency of the Basic Documents, the Notes, the Certificates,
other than the certificate of authentication on the Certificates, if executed by
the Owner Trustee, and the Owner Trustee shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to any Certificateholder,
other than as expressly provided for herein or expressly agreed to in the Basic
Documents;
(e) The execution, delivery, authentication and performance by it
of this Trust Agreement will not require the authorization, consent or approval
of, the giving of notice to, the filing or registration with, or the taking of
any other action with respect to, any governmental authority or agency;
(f) The Owner Trustee shall not be liable for the default or
misconduct of the Depositor, Indenture Trustee, Certificate Registrar, the RMBS
Master Servicer, the HELOC Back-up Servicer, the RMBS Servicer or the HELOC
Servicer under any of the Basic
Documents or otherwise and the Owner Trustee shall have no obligation or
liability to perform the obligations of the Trust under this Trust Agreement or
the Basic Documents that are required to be performed by the Indenture Trustee
under the Indenture or the RMBS Master Servicer under the RMBS Master Servicing
Agreement, the HELOC Back-up Servicer under the HELOC Back-up Servicing
Agreement, the RMBS Servicer under the RMBS Servicing Agreement or the HELOC
Servicer under the HELCO Servicing Agreement; and
(g) The Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it or duties imposed by this Trust Agreement,
or to institute, conduct or defend any litigation under this Trust Agreement or
otherwise or in relation to this Trust Agreement or any Basic Document, at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Trust Agreement or in any
Basic Document shall not be construed as a duty, and the Owner Trustee shall not
be answerable for other than its gross negligence, bad faith, grossly negligent
failure to act or willful misconduct in the performance of any such act.
Section 6.02 FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish
to the Securityholders promptly upon receipt of a written reasonable request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Trust under the Basic Documents.
Section 6.03 REPRESENTATIONS AND WARRANTIES. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Trust Agreement;
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Trust Agreement, and this Trust Agreement
will be executed and delivered by one of its officers who is duly authorized to
execute and deliver this Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order binding on
it, or constitute any default under its charter documents or bylaws or any
indenture, mortgage, contract, agreement or instrument to which it is a party or
by which it or any of its properties may be bound;
(d) This Trust Agreement, assuming due authorization, execution
and delivery by the Owner Trustee, the Depositor and the Certificate Paying
Agent, constitutes a valid, legal and binding obligation of the Owner Trustee,
enforceable against it in accordance with the terms hereof, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and to general
principles of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(e) The Owner Trustee is not in default with respect to any order
or decree of any court or any order, regulation or demand of any Federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Owner Trustee or its properties or might have consequences
that would materially adversely affect its performance hereunder; and
(f) No litigation is pending or, to the best of the Owner
Trustee's knowledge, threatened against the Owner Trustee which would prohibit
its entering into this Trust Agreement or performing its obligations under this
Trust Agreement.
Section 6.04 RELIANCE; ADVICE OF COUNSEL. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, note, or
other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or other authorized officers of the relevant party, as to such fact or matter
and such certificate shall constitute full protection to the Owner Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and
in the performance of its duties and obligations under this Trust Agreement or
the Basic Documents, the Owner Trustee (i) may act directly or through its
agents, attorneys, custodians or nominees (including persons acting under a
power of attorney) pursuant to agreements entered into with any of them, and the
Owner Trustee shall not be liable for the conduct or misconduct of such agents,
attorneys, custodians or nominees (including persons acting under a power of
attorney) if such persons have been selected by the Owner Trustee with
reasonable care, and (ii) may consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it. The
Owner Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the opinion or advice of any such counsel,
accountants or other such Persons and not contrary to this Trust Agreement or
any Basic Document.
Section 6.05 LIMITATION OF LIABILITY OF WILMINGTON TRUST COMPANY. It
is expressly understood and agreed by the parties hereto that (a) this Agreement
is executed and delivered by Wilmington Trust Company, not individually or
personally but solely as Owner Trustee, in the exercise of the powers and
authority conferred and vested in it under the Trust Agreement, (b) each of the
representations, undertakings and agreements herein made on the part of Trust is
made and intended not as a personal representation, undertaking or agreement by
Wilmington Trust Company but is made and intended for the purpose of binding
only the Trust, (c) nothing herein contained shall be construed as creating any
liability on Wilmington Trust Company, individually or personally, to perform
any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
Person claiming by, through or under the parties hereto and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement or otherwise. Except as provided in
this Article VI, in accepting the trusts hereby created Wilmington Trust Company
acts solely as Owner Trustee hereunder and not in its individual capacity, and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Trust Agreement or any Basic Document shall
look only to the Owner Trust Estate for payment or satisfaction thereof.
Section 6.06 OWNER TRUSTEE NOT LIABLE FOR CERTIFICATES OR RELATED
DOCUMENTS. The recitals contained herein and in the Certificates (other than as
set forth in Section 6.03 herein and the signatures of the Owner Trustee on the
Certificates) shall be taken as the statements of the Depositor, and the Owner
Trustee assumes no responsibility for the correctness thereof. Other than as set
forth in Section 6.03, the Owner Trustee makes no representations as to the
validity or sufficiency of this Trust Agreement, of any Basic Document or of the
Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents, or of MERS or the
MERS(R) System. The Owner Trustee shall at no time have any responsibility or
liability with respect to the sufficiency of the Owner Trust Estate or its
ability to generate the payments to be distributed to Certificateholders under
this Trust Agreement or the Noteholders under the Indenture, including
compliance by the Depositor or the Seller with any warranty or representation
made under any Basic Document or in any related document or the accuracy of any
such warranty or representation, or any action of the Certificate Paying Agent,
the Certificate Registrar, the Securities Administrator or the Indenture Trustee
taken in the name of the Owner Trustee.
Section 6.07 OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES. The Owner
Trustee in its individual or any other capacity may, subject to Section 3.05,
become the owner or pledgee of Certificates or Notes and may deal with the
Depositor, the Seller, the Certificate Paying Agent, the Certificate Registrar
and the Indenture Trustee in transactions with the same rights as it would have
if it were not Owner Trustee.
Section 6.08 PAYMENTS FROM OWNER TRUST ESTATE. All payments to be
made by the Owner Trustee under this Trust Agreement or any of the Basic
Documents to which the Owner Trustee is a party shall be made only from funds on
deposit in the Certificate Distribution Account, the income and proceeds of the
Owner Trust Estate or from other amounts required to be provided by the
Certificateholders and only to the extent that the Owner Trust shall have
received funds on deposit in the Certificate Distribution Account, income or
proceeds from the Owner Trust Estate or the Certificateholders to make such
payments in accordance with the terms hereof. Wilmington Trust Company, in its
individual capacity, shall not be liable for any amounts payable under this
Trust Agreement or any of the Basic Documents to which the Owner Trustee is a
party.
Section 6.09 DOING BUSINESS IN OTHER JURISDICTIONS. Notwithstanding
anything contained herein to the contrary, neither Wilmington Trust Company nor
the Owner Trustee shall be required to take any action in any jurisdiction other
than in the State of Delaware if the taking of such action will, even after the
appointment of a co-trustee or separate trustee in accordance with Section 9.05
hereof, (i) require the consent or approval or authorization or order of or the
giving of notice to, or the registration with or the taking of any other action
in respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware; (ii) result in any fee, tax or
other governmental charge under the laws of the State of Delaware becoming
payable by Wilmington Trust Company; or (iii) subject Wilmington Trust Company
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by Wilmington Trust Company or the Owner Trustee, as the case may
be, contemplated hereby.
Section 6.10 LIABILITY OF CERTIFICATE REGISTRAR AND CERTIFICATE
PAYING AGENT. All provisions affording protection or rights to or limiting the
liability of the Owner Trustee, including the provisions of this Agreement
permitting the Owner Trustee to resign, merge or consolidate, shall inure as
well to the Certificate Registrar and Certificate Paying Agent.
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.01 OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee
shall receive as compensation for its services hereunder the Owner Trustee's Fee
which shall be payable by American Home Mortgage Servicing, Inc. The Owner
Trustee shall be reimbursed by the Depositor for its reasonable expenses
hereunder and under the Basic Documents, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and counsel
as the Owner Trustee may reasonably employ in connection with the exercise and
performance of its rights and its duties hereunder and under the Basic
Documents.
Section 7.02 INDEMNIFICATION. The Depositor shall indemnify, defend
and hold harmless the Owner Trustee, the Certificate Registrar and the
Certificate Paying Agent, solely in its capacity as Certificate Registrar and
Certificate Paying Agent, and their respective successors, assigns, agents and
servants (collectively, the "Indemnified Parties") from and against any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against any Indemnified Party in any way relating to or arising out of this
Trust Agreement, the Basic Documents, the Owner Trust Estate, the administration
of the Owner Trust Estate or the action or inaction of the Owner Trustee, the
Certificate Registrar and the Certificate Paying Agent, solely in its capacity
as Certificate Paying Agent, hereunder, provided, that:
(i) the Depositor shall not be liable for or required to
indemnify an Indemnified Party from and against Expenses arising or
resulting from such Indemnified Party's willful misconduct, gross
negligence, grossly negligent failure to act or bad faith or, with
respect to the Owner Trustee, as a result of any inaccuracy of a
representation or warranty of the Owner Trustee contained in Section
6.03 expressly made by the Owner Trustee;
(ii) with respect to any such claim, the Indemnified Party
shall have given the Depositor written notice thereof promptly after
the Indemnified Party shall have actual knowledge thereof,
(iii) while maintaining control over its own defense, the
Depositor shall consult with the Indemnified Party in preparing such
defense; and
(iv) notwithstanding anything in this Agreement to the
contrary, the Depositor shall not be liable for settlement of any claim
by an Indemnified Party entered into without the prior consent of the
Depositor which consent shall not be unreasonably withheld.
The indemnities contained in this Section shall survive the resignation
or termination of the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent or the termination of this Trust Agreement. In the
event of any claim, action or proceeding for which indemnity will
be sought pursuant to this Section 7.02, the Owner Trustee's, the Certificate
Registrar's or the Certificate Paying Agent's choice of legal counsel, if other
than the legal counsel retained by the Owner Trustee, the Certificate Registrar
or the Certificate Paying Agent in connection with the execution and delivery of
this Trust Agreement, shall be subject to the approval of the Depositor, which
approval shall not be unreasonably withheld. In addition, upon written notice to
the Owner Trustee, the Certificate Registrar or the Certificate Paying Agent and
with the consent of the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent which consent shall not be unreasonably withheld, the
Depositor has the right to assume the defense of any claim, action or proceeding
against the Owner Trustee, the Certificate Registrar or the Certificate Paying
Agent.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.01 TERMINATION OF TRUST AGREEMENT. (a) Subject to Section
8.01(e), hereof, this Trust Agreement (other than Article VII) and the Trust
shall terminate and be of no further force or effect upon the earliest of (i)
the final distribution of all moneys or other property or proceeds of the Owner
Trust Estate in accordance with the terms of the Indenture and this Trust
Agreement, and (ii) the distribution of all of the assets of the Owner Trust
Estate, in accordance with written instructions provided to the Owner Trustee by
the Majority Certificateholder, following the optional redemption of the Notes
by the Majority Certificateholder pursuant to Section 8.07 of the Indenture.
(b) Except as provided in Section 8.01(a), neither the Depositor
nor any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution and cancellation,
shall be given by the Certificate Paying Agent by letter to Certificateholders
and the Insurer mailed within five Business Days of receipt of notice of the
final payment on the Notes from the Majority Certificateholder stating (i) the
Payment Date upon or with respect to which final payment of the Certificates
shall be made upon presentation and surrender of the Certificates at the office
of the Certificate Paying Agent therein designated, (ii) the amount of any such
final payment, to the extent the Certificate Paying Agent is informed of such
payment and (iii) that the record date otherwise applicable to such Payment Date
is not applicable, payments being made only upon presentation and surrender of
the Certificates at the office of the Certificate Payment Agent therein
specified. The Certificate Paying Agent shall give such notice to the Owner
Trustee and the Certificate Registrar at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Certificate Paying Agent shall cause to be distributed to Certificateholders
amounts distributable on such Payment Date pursuant to Section 5.01.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above mentioned written notice, the Certificate Paying Agent shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if within
one year following the Payment Date on which final payment of the Certificates
was to have been made pursuant to Section 3.03 of the Indenture, all the
Certificates shall not have been surrendered for cancellation, the Certificate
Paying Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Trust Agreement. Any
funds remaining in the Certificate Distribution Account after exhaustion of such
remedies shall be distributed by the Certificate Paying Agent to the Depositor.
(d) Upon the winding up of the Trust and its termination, the
Owner Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State of the State of Delaware
in accordance with the provisions of Section 3810(c) of the Statutory Trust
Statute.
(e) Notwithstanding anything to the contrary herein, the Trust
shall not be revoked or terminated until all amounts owing to the Noteholders
and the Insurer to the extent payable from the Trust Estate or proceeds thereof
have been paid in full and that all obligations under the Indenture have been
discharged. The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Trust Agreement or the
Trust or (y) entitle such Certificateholder's legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or the Trust Estate or
(z) otherwise affect the rights, obligations and liabilities of the parties
hereto.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Statutory Trust Statute; authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) a rating of at least Baa3 by Moody's and/or
at least BBB- by Standard and Poor's or is otherwise acceptable to the Insurer
and the Rating Agencies. If such corporation shall publish reports of condition
at least annually pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Owner Trustee shall cease to be eligible
in accordance with the provisions of this Section 9.01, the Owner Trustee shall
resign immediately in the manner and with the effect specified in Section 9.02.
Section 9.02 REPLACEMENT OF OWNER TRUSTEE. The Owner Trustee may at
any time resign and be discharged from the trusts hereby created by giving 30
days prior written notice thereof to the Insurer and the Depositor. Upon
receiving such notice of resignation, the Depositor shall promptly appoint a
successor Owner Trustee with consent of the Insurer which consent shall not be
unreasonably withheld, by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and to the
successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Owner Trustee may petition any court of
competent jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.01 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Owner Trustee with consent of the
Insurer and shall remove the Owner Trustee at the direction of the Insurer.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Depositor shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
Section 9.03 SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Indenture Trustee and to its
predecessor Owner Trustee an instrument accepting such appointment under this
Trust Agreement, and thereupon the resignation or removal of the predecessor
Owner Trustee shall become effective, and such successor Owner Trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this Trust
Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Trust Agreement; and the predecessor Owner Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Owner Trustee
all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, the Owner Trustee shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Insurer, the Noteholders and the
Rating Agencies.
Section 9.04 MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any Person
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Depositor, the Indenture Trustee, the Securities
Administrator and the Rating Agencies.
Section 9.05 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Trust Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate may at the time be located, the Owner Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons to act as co-trustee, jointly with the Owner Trustee, or as
separate trustee or trustees, of all or any part of the Owner Trust Estate, and
to vest in such Person, in such capacity, such title to the Trust or any part
thereof and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Owner Trustee may consider
necessary or desirable. No co-trustee or separate trustee under this Trust
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 9.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Owner Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Owner Trust Estate or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction of
the Owner Trustee;
(b) No trustee under this Trust Agreement shall be personally
liable by reason of any act or omission of any other trustee under this Trust
Agreement; and
(c) The Owner Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Trust
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Trust Agreement, specifically including
every provision of this Trust Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Owner Trustee. Each such
instrument shall be filed with the Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Trust Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE X
MISCELLANEOUS
Section 10.01 AMENDMENTS. (a) This Trust Agreement may be amended from
time to time by the parties hereto as specified in this Section, provided that
any amendment, except as provided in subparagraph (e) below, be accompanied by
an Opinion of Counsel addressed to the Owner Trustee, the Insurer, the
Certificate Registrar and the Certificate Paying Agent and obtained by the
Depositor to the effect that such amendment (i) complies with the provisions of
this Section and (ii) if American Home Mortgage Securities LLC is not the
Majority Certificateholder, would not cause the Trust to be subject to an entity
level tax for federal income tax purposes.
(b) If the purpose of the amendment (as detailed therein) is to
correct any mistake, eliminate any inconsistency, cure any ambiguity or deal
with any matter not covered (i.e. to give effect to the intent of the parties
and, if applicable, to the expectations of the Holders), it shall not be
necessary to obtain the consent of any Holders, but the Owner Trustee, the
Insurer, the Certificate Registrar and the Certificate Paying Agent shall be
furnished with (A) a letter from the Rating Agencies that the amendment will not
result in the downgrading, qualification or withdrawal of the rating then
assigned to any Note or (B) an Opinion of Counsel obtained by the the Depositor
to the effect that such action will not adversely affect in any material respect
the interests of any Holders and the written consent of the Insurer shall have
been obtained.
(c) If the purpose of the amendment is to prevent the imposition
of any federal or state taxes at any time that any Security is outstanding, it
shall not be necessary to obtain the consent of any Holder, but the Owner
Trustee, the Insurer, the Certificate Registrar and the Certificate Paying Agent
shall be furnished with an Opinion of Counsel obtained by the Depositor that
such amendment is necessary or helpful to prevent the imposition of such taxes
and is not materially adverse to any Holder, and the consent of the Insurer
shall be obtained.
(d) If the purpose of the amendment is to add or eliminate or
change any provision of the Trust Agreement other than as contemplated in (b)
and (c) above, the amendment shall require (A) an Opinion of Counsel obtained by
the Depositor to the effect that such action will not adversely affect in any
material respect the interests of any Noteholders or Certificateholders, (B) the
consent of the Insurer and (C) either (a) a letter from the Rating Agencies that
the amendment will not result in the downgrading or withdrawal of the rating
then assigned to any Note or (b) the consent of Holders of Certificates
evidencing a majority Percentage Interest of the Certificates and the consent of
Noteholders representing at least 51% of the Note Principal Balance of each
Class of Notes; provided, however, that no such amendment shall (i) reduce in
any manner the amount of, or delay the timing of, payments received that are
required to be distributed on any Certificate without the consent of the related
Certificateholder, or (ii) reduce the aforesaid percentage of Certificates the
Holders of which are required to consent to any such amendment, without the
consent of the Holders of all such Certificates then outstanding.
(e) If the purpose of the amendment is to provide for the holding
of any of the Certificates in book-entry form, it shall require the consent of
Holders of all such Certificates
then outstanding; provided, that the Opinion of Counsel specified in
subparagraph (a) above shall not be required.
(f) If the purpose of the amendment is to provide for the issuance
of additional certificates representing an interest in the Trust, it shall not
be necessary to obtain the consent of any Noteholders or Certificateholders, but
the Owner Trustee, the Certificate Registrar, the Insurer and the Certificate
Paying Agent shall be furnished with (A) an Opinion of Counsel obtained by the
Depositor to the effect that such action will not adversely affect in any
material respect the interests of any Noteholders or Certificateholders and (B)
a letter from the Rating Agencies that the amendment will not result in the
downgrading, qualification or withdrawal of the rating then assigned to any
Notes.
(g) Promptly after the execution of any such amendment or consent,
[Depositor] shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and each
of the Rating Agencies. It shall not be necessary for the consent of
Certificateholders or the Indenture Trustee pursuant to this Section 10.01 to
approve the particular form of any proposed amendment or consent, but it shall
be sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of Certificateholders provided
for in this Trust Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any
agreement to which the Trust is a party, other than this Trust Agreement, the
Owner Trustee, the Certificate Registrar and the Certificate Paying Agent shall
be entitled to receive and conclusively rely upon an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the documents subject
to such amendment and that all conditions precedent in the Basic Documents for
the execution and delivery thereof by the Trust or the Owner Trustee, as the
case may be, have been satisfied.
(i) No amendment or agreement affecting the rights or duties of
the Certificate Registrar or the Certificate Paying Agent may be entered into
without the consent of the affected party.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State of the State of Delaware.
Section 10.02 NO LEGAL TITLE TO OWNER TRUST ESTATE. The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate solely by virtue of their status as a Certificateholder. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided beneficial interest therein only in accordance with Articles V
and VIII. No transfer, by operation of law or otherwise, of any right, title or
interest of the Certificateholders to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Trust Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Owner Trust Estate.
Section 10.03 LIMITATIONS ON RIGHTS OF OTHERS. Except for Section
2.07, the provisions of this Trust Agreement are solely for the benefit of the
Owner Trustee, the RMBS Master Servicer, the the Insurer, the Certificateholders
and, to the extent expressly provided herein, the Indenture Trustee and the
Noteholders, and nothing in this Trust Agreement (other than Section 2.07),
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Owner Trust Estate or under or
in respect of this Trust Agreement or any covenants, conditions or provisions
contained herein.
Section 10.04 NOTICES. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt, to the Owner Trustee at: Wilmington Trust Company,
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000;
Attention: Corporate Trust Administration; to the Depositor at: American Home
Mortgage Securities LLC, 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000;
Attention: General Counsel; to the Indenture Trustee, Certificate Registrar and
the Certificate Paying Agent at its Corporate Trust Office; to the Insurer at:
Financial Guaranty Insurance Company, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Research and Risk Management; to the Securities Administrator, X.X.
Xxx 00, Xxxxxxxx, Xxxxxxxx 00000 or, for overnight deliveries, 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: AHM 2005-1; to Standard &
Poor's at: 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; to Moody's at: 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; or, as to each party, at such other address as
shall be designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Trust Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
(c) A copy of any notice delivered to the Owner Trustee or the
Trust shall also be delivered to the Depositor.
Section 10.05 SEVERABILITY. Any provision of this Trust Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 10.06 SEPARATE COUNTERPARTS. This Trust Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 10.07 SUCCESSORS AND ASSIGNS. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, each of the Depositor, the Owner Trustee and its successors,
each Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or
action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
Section 10.08 NO PETITION. The Owner Trustee, by entering into this
Trust Agreement, and each Certificateholder, by accepting a Certificate, hereby
covenant and agree that they will not at any time institute against the
Depositor or the Trust, or join in any institution against the Depositor or the
Trust of, any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations to the
Certificates, the Notes, this Trust Agreement or any of the Basic Documents.
This Section shall survive for one year following the termination of this Trust
Agreement.
Section 10.09 NO RECOURSE. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, the Seller, the Owner Trustee, the Indenture
Trustee, the Certificate Registrar, the Certificate Paying Agent or any
Affiliate thereof and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Trust
Agreement, the Certificates or the Basic Documents.
Section 10.10 HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.11 GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12 INTEGRATION. This Trust Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
Section 10.13 BENEFITS OF TRUST AGREEMENT. The Insurer and its
successors and assigns shall be a third-party beneficiary to the provisions of
this Trust Agreement. To the extent that this Trust Agreement confers upon or
gives or grants to the Insurer any right, remedy or claim under or by reason of
this Trust Agreement, the Insurer may enforce any such right, remedy or claim
conferred, given or granted hereunder. Nothing in this Trust Agreement or in
the, express or implied, shall give to any Person, other than the parties hereto
and their successors hereunder, and the Certificateholders and the Insurer, any
benefit or any legal or equitable right, remedy or claim under this Trust
Agreement.
Section 10.14 Separateness Covenants. The Trust shall:
(a) maintain the Trust's books and records separate from any other
person or entity;
(b) maintain the Trust's bank accounts separate from any other
person or entity;
(c) not commingle the Trust's assets with those of any other
person or entity;
(d) conduct the Trust's own business in its own name;
(e) other than as contemplated by the Basic Documents and related
documentation, pay the Trust's own liabilities and expenses only out of its own
funds;
(f) observe all formalities required under the Delaware Trust
Statute;
(g) enter into transactions with Affiliates or the Depositor only
if each such transaction is intrinsically fair, commercially reasonable, and on
the same terms as would be available in the arm's length transaction with a
person or entity that is not an Affiliate;
(h) not guarantee or become obligated for the debts of any other
entity or person;
(i) not hold out the Trust's credit as being available to satisfy
the obligation of any other person or entity;
(j) not acquire the obligations or securities of the Trust's
Affiliates or the Depositor;
(k) other than as contemplated by the Basic Documents and related
documentation,, not make any loans to any other person or entity or buy or hold
evidence of indebtedness issued by any other person or entity;
(l) other than as contemplated by the Basic Documents and related
documentation, not pledge the Trust's assets for the benefit of any other person
or entity;
(m) hold the Trust out as a separate entity and conduct any
business only in its own name;
(n) correct any known misunderstanding regarding the Trust's
separate identity;
(o) not identify the Trust as a division of any other person or
entity;
(p) maintain appropriate minutes or other records of appropriate
actions and shall maintain its office separate from the office of the Depositor,
the Seller, the Servicer and the Subservicer.
Section 10.15 ACTION BY CERTIFICATEHOLDERS OR OWNER TRUSTEE WITH
RESPECT TO BANKRUPTCY. The Owner Trustee shall not have the power, except (i)
upon the direction of the 100% of the Certificateholders and the delivery to the
Owner Trustee of each such Certificateholder of a certificate certifying that
such Certificateholder reasonably believes that the Trust is insolvent and (ii)
the extent permitted by applicable law, with the prior written consent of the
Insurer or upon the direction of the Insurer and 100% of the Noteholders, and to
the extent otherwise consistent with the Basic Documents, (a) institute any
proceedings to declare or adjudicate the Trust a bankrupt or insolvent, (b)
consent to the institution of bankruptcy or insolvency proceedings against the
Trust, (c) file a petition or consent to a petition seeking reorganization or
relief on behalf of the Trust under any applicable federal or state law relating
to bankruptcy, (d) consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Trust or a
substantial part of the property of the Trust, (e) make any assignment for the
benefit of the Trust's creditors, (f) cause the Trust to admit in writing its
inability to pay its debts generally as they become due, or (g) take any action,
or cause the Trust to take any action, in furtherance of any of the foregoing
(any of the above foregoing actions, a "Bankruptcy Action"). So long as the
Indenture and the Insurance Agreement remain in effect and no Insurer Default
exists, no Certificateholder shall have the power to take, and shall not take,
any Bankruptcy Action with respect to the Trust or direct the Owner Trustee to
take any Bankruptcy Action with respect to the Trust.
Section 10.16 INSURER'S RIGHTS REGARDING ACTIONS, PROCEEDINGS OR
INVESTIGATIONS. Until all Class IX-A Notes issued pursuant to the Indenture have
been paid in full, all amounts owed to the Insurer have been paid in full, the
Insurance Agreement has terminated and the Insurance Policy has been returned to
the Insurer for cancellation, the following provisions shall apply:
(a) Notwithstanding anything contained herein or in the Basic
Documents to the contrary, the Insurer shall have the right to participate in,
to direct the defense of, and, at the Insurer's sole option, to institute or
assume the defense of any action, proceeding or investigation that could
adversely affect the Trust, the Trust Estate or the rights or obligations of the
Insurer hereunder or under the Insurance Policy or the Basic Documents,
including (without limitation) any insolvency or bankruptcy proceeding in
respect of the Servicer, the Seller, the Depositor, the Trust or any affiliate
thereof. Following notice to the Owner Trustee, the Insurer shall have exclusive
right to determine, in its sole discretion, the actions necessary to preserve
and protect the Trust or the Trust Estate. All costs and expenses of the Insurer
in connection with such action, proceeding or investigation, including (without
limitation) any judgment or settlement entered into affecting the Insurer or the
Insurer's interests, shall be deemed reimbursable as an amount payable to the
Insurer under the Insurance Agreement.
(b) In connection with any action, proceeding or investigation
that could adversely affect the Trust, the Trust Estate or the rights or
obligations of the Insurer hereunder or under the Insurance Policy or the Basic
Documents, including (without limitation) any insolvency or bankruptcy
proceeding in respect of the Servicer, the Seller, the Depositor, the Trust or
any affiliate thereof, the Owner Trustee hereby agrees to cooperate with, and to
take such action as
directed by, the Insurer, including (without limitation) entering into such
agreements and settlements as the Insurer shall direct, in its sole discretion,
without the consent of any Certificateholder.
(c) The Owner Trustee hereby agrees upon actual knowledge thereof
to provide the Insurer prompt written notice of any action, proceeding or
investigation that names the Trust, the Trust Estate or the Owner Trustee as a
party or that could adversely affect the Trust, the Trust Estate or the rights
or obligations of the Insurer hereunder or under the Insurance Policy or the
Basic Documents, including (without limitation) any insolvency or bankruptcy
proceeding in respect of the Servicer, the Seller, the Depositor, the Trust or
any affiliate thereof.
(d) Notwithstanding anything contained herein or in the Basic
Documents to the contrary, the Owner Trustee shall not, without the Insurer's
prior written consent or unless directed by the Insurer, undertake or join any
litigation or agree to any settlement of any action, proceeding or investigation
affecting the Trust, the Trust Estate or the rights or obligations of the
Insurer hereunder or under the Insurance Policy or the Basic Documents.
(e) Each Certificateholder, by acceptance of its Certificate, and
the Owner Trustee agree that the Insurer shall have such rights as set forth in
this Section 10.16, which are in addition to any rights of the Insurer pursuant
to the other provisions of the Basic Documents, that the rights set forth in
this Section 10.16 may be exercised by the Insurer, in its sole discretion,
without the need for the consent or approval of any Certificateholder or the
Owner Trustee, notwithstanding any other provision contained herein or in any
Basic Document, and that nothing contained in this Section 10.16 shall be deemed
to be an obligation of the Insurer to exercise any of the rights provided for
herein.
Section 10.17 RESTRICTIONS ON TRUST ACTIVITIES. The Trust shall abide
by the following restrictions:
(a) other than as contemplated by the Basic Documents and related
documentation, the Trust shall not incur any indebtedness;
(b) other than as contemplated by the Basic Documents and related
documentation, the Trust shall not engage in any dissolution, liquidation,
consolidation, merger or sale of assets;
(c) the Trust shall not engage in any business activity in which
it is not currently engaged other than as contemplated by the Basic Documents
and related documentation;
(d) the Trust shall not form, or cause to be formed, any
subsidiaries and shall not own or acquire any asset other than as contemplated
by the Basic Documents and related documentation; and
(e) other than as contemplated by the Basic Documents and related
documentation, the Trust shall not follow the directions or instructions of the
Depositor.
Section 10.18 OBLIGATIONS. The execution and delivery of this Trust
Agreement by Deutsche Bank National Trust Company is not in its individual
capacity but solely in its capacity
as Indenture Trustee and solely for purposes of its appointment and agreement to
serve as Certificate Registrar and Certificate Paying Agent. The Indenture
Trustee shall have no duties or obligations under this Agreement except for
those duties expressly set forth in this Agreement as duties of the Certificate
Registrar or Certificate Paying Agent, and no implied duties shall be read into
this Agreement on the part of Indenture Trustee, Certificate Paying Agent or
Certificate Registrar. In entering into this Agreement and with respect to all
matters arising under this Agreement, the Indenture Trsutee shall enjoy and be
protected by all of the rights, powers, benefits, immunities, indemnities and
other protections granted to it under Article VI of the Indenture, whether
acting in its capacity as Certificate Registrar or as Certificate Paying Agent.
IN WITNESS WHEREOF, the Depositor, the Indenture Trustee, the
Certificate Paying Agent, the Certificate Registrar and the Owner Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, all as of the day and year first above written.
AMERICAN HOME MORTGAGE SECURITIES LLC
as Depositor
By: /s/ Xxxx X. Xxxx
----------------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
WILMINGTON TRUST COMPANY
as Owner Trustee
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Financial Services Officer
DEUTSCHE BANK NATIONAL TRUST COMPANY, not in its individual capacity but solely
as Indenture Trustee,
as Certificate Registrar
and Certificate Paying Agent
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Associate
Acknowledged and agreed with respect to Sections 5.03 hereof:
XXXXX FARGO BANK, N.A.
as Securities Administrator
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A
FORM OF CERTIFICATE
[FACE]
THIS CERTIFICATE IS SUBORDINATE TO THE NOTES AS DESCRIBED IN THE
INDENTURE.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS
TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER U.S. LAW.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR HAS RECEIVED PROOF OF THE TRANSFEREE'S STATUS AS A REIT OR AS A
QUALIFIED REIT SUBSIDIARY, WITHIN THE MEANING OF SECTION 856(A) OR SECTION
856(I) OF THE CODE, RESPECTIVELY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.05 OF THE TRUST AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE
TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN OR OTHER PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A PERSON ACTING ON BEHALF OF
ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN, OR (II) IF THIS CERTIFICATE
IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN SUBJECT TO ERISA, OR SECTION
4975 OF THE CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A
TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER PERSON WHO IS USING THE ASSETS OF ANY
SUCH PLAN TO EFFECT SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT
THE PURCHASE OF CERTIFICATES, OPERATION OF TRUST AND MANAGEMENT OF TRUST ASSETS
ARE PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN ANY
PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE AND WILL NOT
SUBJECT THE DEPOSITOR,
THE SELLER, THE OWNER TRUSTEE, THE INDENTURE TRUSTEE, THE CERTIFICATE REGISTRAR,
THE SECURITIES ADMINISTRATOR, THE RMBS MASTER SERVICER, THE HELOC BACK-UP
SERVICER, THE RMBS SERVICER OR THE HELOC SERVICER TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE)
IN ADDITION TO THOSE UNDERTAKEN IN THE TRUST AGREEMENT, WHICH OPINION OF COUNSEL
SHALL NOT BE AN EXPENSE OF THE DEPOSITOR, THE SELLER, THE OWNER TRUSTEE, THE
INDENTURE TRUSTEE, THE CERTIFICATE REGISTRAR, THE RMBS MASTER SERVICER, THE
SECURITIES ADMINISTRATOR, THE HELOC BACK-UP SERVICER, THE RMBS SERVICER OR THE
HELOC SERVICER.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
SELLER, THE CERTIFICATE REGISTRAR, THE CERTIFICATE PAYING AGENT, THE DEPOSITOR,
THE SECURITIES ADMINISTRATOR, THE RMBS MASTER SERVICER, THE HELOC BACK-UP
SERVICER, THE RMBS SERVICER, THE HELOC SERVICER, THE INDENTURE TRUSTEE, OR THE
OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY
PROVIDED IN THE TRUST AGREEMENT OR THE BASIC DOCUMENTS.
Certificate No. Certificate Percentage Interest of
-------- this Certificate: %
-----------------
Cut-off Date: March 1, 2004
Date of Amended and Restated First Payment Date:
Trust Agreement: April 25, 2005
March 23, 2005
AMERICAN HOME MORTGAGE INVESTMENT TRUST 2005-1
Evidencing a fractional undivided equity interest in the Owner Trust
Estate, the property of which consists primarily of the Mortgage Loans in
American Home Mortgage Investment Trust 2005-1 (the "Trust"), a Delaware
statutory trust formed by American Home Mortgage Securities LLC, as depositor,
pursuant to the Trust Agreement referred to below.
This certifies that is the registered owner of the Percentage Interest
represented hereby.
The Trust was created pursuant to a Short Form Trust Agreement, dated
as of March [__], 2005, between the Depositor and Wilmington Trust Company, as
owner trustee (the "Owner Trustee", which term includes any successor entity
under the Trust Agreement) (the "Short Form Trust Agreement") as amended and
restated by the Amended and Restated Trust Agreement dated as of March 23, 2005
(as amended and supplemented from time to time, together with the Short Form
Trust Agreement, the "Trust Agreement") among the Depositor, the Owner Trustee
and Deutsche Bank National Trust Company as indenture trustee, certificate
registrar and certificate paying agent, a summary of certain of the pertinent
provisions of which is set forth hereinafter. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Trust Agreement,
to which Trust Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This Certificate is one of a duly authorized issue of Trust
Certificates, Series 2005-1 (herein called the "Certificates") issued under the
Trust Agreement to which reference is hereby made for a statement of the
respective rights thereunder of the Depositor, the Owner Trustee and the Holders
of the Certificates and the terms upon which the Certificates are executed and
delivered. All terms used in this Certificate which are defined in the Trust
Agreement shall have the meanings assigned to them in the Trust Agreement. The
Owner Trust Estate consists of the Mortgage Loans in the American Home Mortgage
Investment Trust 2005-1. The rights of the Holders of the Certificates are
subordinated to the rights of the Holders of the Notes, as set forth in the
Indenture.
There will be distributed on the 25th day of each month or, if such
25th day is not a Business Day, the next Business Day (each, a "Payment Date"),
commencing on April 25, 2005, to the Person in whose name this Certificate is
registered at the close of business on the last
50
Business Day of the month immediately preceding such Payment Date (the "Record
Date"), such Certificateholder's Percentage Interest in the amount to be
distributed to Certificateholders on such Payment Date.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Distribution
Account that have been released from the Lien of the Indenture for payment
hereunder and that neither the Owner Trustee in its individual capacity nor the
Depositor is personally liable to the Certificateholders for any amount payable
under this Certificate or the Trust Agreement or, except as expressly provided
in the Trust Agreement, subject to any liability under the Trust Agreement.
The Holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Indenture, dated as of March 23,
2005, between the Trust, Xxxxx Fargo Bank, N.A., as Securities Administrator
(the "Securities Adminstrator") and Deutsche Bank National Trust Company, as
Indenture Trustee (the "Indenture").
The Depositor and each Certificateholder, by acceptance of a
Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Certificates for federal, state and local income tax purposes
as an equity interest in the Trust.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, or join in any institution against the Depositor or the Trust of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Trust Agreement or any of the Basic Documents.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
in such notice.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Certificate Paying Agent by wire transfer or check mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Certificate Paying Agent of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose by the Trust, as
provided in Section 3.09 of the Trust Agreement.
[The Majority Certficateholder may redeem the Notes on any Payment Date
on or after the Payment Date which the aggregate Scheduled Principal Balance of
the Mortgage Loans as of the end of the prior Due Period is less than 10% of the
aggregate Scheduled Principal Balance of the Mortgage Loans as of the aggregate
Cut-off Date Balance of the Mortgage Loans.]
51
No transfer, sale, pledge or other disposition of a Certificate shall
be made unless such transfer, sale, pledge or other disposition is exempt from
the registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) (a) an investment
letter in substantially the form attached to the Trust Agreement as Exhibit C
which investment letter shall not be an expense of the Trust, the Owner Trustee,
the Indenture Trustee, the Securities Administrator, the Certificate Registrar,
the RMBS Master Servicer, the HELOC Back-up Servicer, the RMBS Servicer, the
HELOC Back-up Servicer, the Seller or the Depositor and which investment letter
states that, among other things, such transferee (1) is a "qualified
institutional buyer" as defined under Rule 144A, acting for its own account or
the accounts of other "qualified institutional buyers" as defined under Rule
144A, and (2) is aware that the proposed transferor intends to rely on the
exemption from registration requirements under the Securities Act of 1933, as
amended, provided by Rule 144A or (ii) (a) a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from said
Act and laws or is being made pursuant to said Act and laws, which Opinion of
Counsel shall not be an expense of the Trust, the Owner Trustee, the Indenture
Trustee, the Securities Administrator, the Certificate Registrar, the RMBS
Master Servicer, the HELOC Back-up Servicer, the RMBS Servicer, the HELOC
Back-up Servicer, the Seller or the Depositor and (b) either (1) the transferee
executes a representation letter, substantially in the form of Exhibit E to the
Trust Agreement, and the transferor executes a representation letter,
substantially in the form of Exhibit F to the Trust Agreement, each acceptable
to and in form and substance satisfactory to the Certificate Registrar and the
Depositor certifying the facts surrounding such transfer, which representation
letters shall not be an expense of the Trust, the Owner Trustee, the Indenture
Trustee, the Securities Administrator, the Certificate Registrar, the RMBS
Master Servicer, the HELOC Back-up Servicer, the RMBS Servicer, the HELOC
Back-up Servicer, the Seller or the Depositor or (2) has been rendered by a
nationally recognized tax counsel stating that such Notes will be treated as
degt for federal income tax purposes. with respect to such Notes and (B) the
Certificate of Non-Foreign Status (in substantially the form attached to the
Trust Agreement as Exhibit D) acceptable to and in form and substance reasonably
satisfactory to the Certificate Registrar and the Depositor, which certificate
shall not be an expense of the Trust, the Owner Trustee, the Indenture Trustee,
the Securities Administrator, the Certificate Registrar, the RMBS Master
Servicer, the HELOC Back-up Servicer, the RMBS Servicer, the HELOC Back-up
Servicer, the Seller or the Depositor. The Holder of a Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trust, the
Owner Trustee, the Indenture Trustee, the Certificate Paying Agent, the
Certificate Registrar, the RMBS Master Servicer, the HELOC Back-up Servicer, the
RMBS Servicer, the HELOC Servicer and the Depositor against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of Certificates or any interest therein shall be made to
any Person unless the Depositor, the Owner Trustee, the Certificate Registrar,
the HELOC Back-up Servicer, the RMBS Servicer, the HELOC Back-up Servicer and
the Seller are provided with an Opinion of Counsel which establishes to the
satisfaction of the Certificate Registrar that the purchase of Certificates is
permissible under applicable law, will not constitute or result in any
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Depositor, the
52
Owner Trustee, the Indenture Trustee, the Securities Administrator, the
Certificate Registrar, the RMBS Master Servicer, the HELOC Back-up Servicer, the
RMBS Servicer, the HELOC Back-up Servicer or the Seller to any obligation or
liability (including obligations or liabilities under ERISA or Section 4975 of
the Code) in addition to those undertaken in the Trust Agreement, which Opinion
of Counsel shall not be an expense of the Depositor, the Owner Trustee, the
Indenture Trustee, the Securities Administrator, the Certificate Registrar, the
RMBS Master Servicer, the HELOC Back-up Servicer, the RMBS Servicer, the HELOC
Back-up Servicer or the Seller. In lieu of such Opinion of Counsel, a Person may
provide a certification in the form of Exhibit G to the Certificate Registrar,
the Depositor and the Owner Trustee to the Agreement, which the Depositor, the
Owner Trustee, the Indenture Trustee, the Securities Administrator, the
Certificate Registrar, the RMBS Master Servicer, the HELOC Back-up Servicer, the
RMBS Servicer, the HELOC Back-up Servicer and the Seller may rely upon without
further inquiry or investigation. Neither an Opinion of Counsel nor a
certification will be required in connection with the initial transfer of any
such Certificate by the Depositor to an affiliate of the Depositor (in which
case, the Depositor or any affiliate thereof shall have deemed to have
represented that such affiliate is not a Plan or a Person investing Plan Assets
of any Plan) and the Owner Trustee shall be entitled to conclusively rely upon a
representation (which, upon the request of the Owner Trustee, shall be a written
representation) from the Depositor of the status of such transferee as an
affiliate of the Depositor.
No person shall become a Certificateholder, so long as any Notes are
Outstanding, until it shall establish its status as a real estate investment
trust ("REIT") or as a "qualified REIT subsidiary" ("QRS") within the meaning of
Section of 856(a) or Section 856(i) of Code, respectively, by submitting to the
Certificate Registrar and the Owner Trustee and the Transferee Certificate set
forth in Exhibit H to the Trust Agreement.
No offer, sale, transfer, pledge, hypothecation or other disposition
(including any pledge, sale or transfer under a repurchase transaction or
securities loan) of any Certificate shall be made to any transferee unless,
prior to such disposition, the proposed transferor delivers to the Owner Trustee
and the Certificate Registrar an Opinion of Counsel, rendered by a law firm
generally recognized to be qualified to opine concerning the tax aspects of
asset securitization to the effect that such transfer (including any disposition
permitted following any default under any pledge or repurchase transaction) will
not cause the Trust to be no longer be treated for federal income tax purposes
as a "qualified REIT subsidiary" within the meaning of Section 856(i) of the
Code and (ii) a certificate that states that any Certificates may be transferred
by the related lender under any such related loan agreement or repurchase
agreement upon a default under any such indebtedness, in which case the
transferor shall deliver to the Certificate Registrar, the Owner Trustee and the
Indenture Trustee substantially in the form attached as Exhibit I to the Trust
Agreement certifying to such effect. Notwithstanding the foregoing, the
provisions of this paragraph shall not apply to the initial transfer of the
Certificates to the Depositor.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, or an authenticating
agent by manual signature, this Certificate shall not entitle the Holder hereof
to any benefit under the Trust Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
53
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
Dated: March 23, 2005 By:
-----------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:
------------------------------------
Authorized Signatory
or ,
-------------------------------------
as Authenticating Agent of the Trust
By:
------------------------------------
Authorized Signatory
54
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Seller, the RMBS Master Servicer, the HELOC Back-up Servicer,
the RMBS Servicer, the HELOC Servicer, the Indenture Trustee, the Securities
Adminstrator, the Certificate Paying Agent, the Certificate Registrar, the Owner
Trustee or any Affiliates of any of them and no recourse may be had against such
parties or their assets, except as expressly set forth or contemplated herein or
in the Trust Agreement or the Basic Documents. In addition, this Certificate is
not guaranteed by any governmental agency or instrumentality and is limited in
right of payment to certain collections and recoveries with respect to the
Mortgage Loans, all as more specifically set forth herein and in the Trust
Agreement. A copy of the Trust Agreement may be examined by any
Certificateholder upon written request during normal business hours at the
principal office of the Depositor and at such other places, if any, designated
by the Depositor.
The Trust Agreement permits the amendment thereof as specified below,
provided that any amendment be accompanied by an Opinion of Counsel to the Owner
Trustee to the effect that such amendment complies with the provisions of the
Trust Agreement and, if AHM SPV III LLC was not the Majority Certificateholder,
would not cause the Trust to be subject to an entity level tax for federal
income tax purposes. If the purpose of the amendment is to correct any mistake,
eliminate any inconsistency, cure any ambiguity or deal with any matter not
covered, it shall not be necessary to obtain the consent of any Holder, but the
Owner Trustee shall be furnished with a letter from the Rating Agencies that the
amendment will not result in the downgrading, qualification or withdrawal of the
rating then assigned to any Note. If the purpose of the amendment is to prevent
the imposition of any federal or state taxes at any time that any Security is
outstanding, it shall not be necessary to obtain the consent of the any Holder,
but the Owner Trustee shall be furnished with an Opinion of Counsel that such
amendment is necessary or helpful to prevent the imposition of such taxes and is
not materially adverse to any Holder. If the purpose of the amendment is to add
or eliminate or change any provision of the Trust Agreement, other than as
specified in the preceding two sentences, the amendment shall require either the
amendment shall require (a) an Opinion of Counsel obtained by the Depositor to
the effect that such action will not adversely affect in any material respect
the interests of any Noteholders or Certificateholders and (b) either (i) a
letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any Note or (ii) the
consent of Holders of Certificates evidencing a majority Percentage Interest of
the Certificates and the consent of Noteholders representing at least 51% of the
Note Principal Balance of each Class of Notes; PROVIDED, HOWEVER, that no such
amendment shall (x) reduce in any manner the amount of, or delay the timing of,
payments received that are required to be distributed on any Certificate without
the consent of the related Certificateholder, or (y) reduce the aforesaid
percentage of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all such Certificates then
outstanding. If the purpose of the amendment is to provide for the holding of
any of the Certificates in book-entry form, it shall require the consent of
Holders of all such Certificates then outstanding; provided, that the Opinion of
Counsel specified in first sentence of this paragraph shall not be required. If
the purpose of the amendment is to provide for the issuance of additional
certificates representing an interest in the Trust, it shall not be necessary to
obtain the consent of any Noteholders or Certificateholders, but the Owner
Trustee, the Certificate Registrar and the
55
Certificate Paying Agent shall be furnished with (a) an Opinion of Counsel
obtained by the Depositor to the effect that such action will not adversely
affect in any material respect the interests of any Noteholders or
Certificateholders and (b) a letter from the Rating Agencies that the amendment
will not result in the downgrading, qualification or withdrawal of the rating
then assigned to any Notes.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Trust, as provided in the Trust Agreement, accompanied by a written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is Deutsche Bank National Trust Company.
Except as provided in the Trust Agreement, the Certificates are
issuable only in a minimum Certificate Percentage Interest of 10%. As provided
in the Trust Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same aggregate denomination, as requested by the Holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Paying Agent, the Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate as and when provided in accordance
with the terms of the Trust Agreement.
56
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
*/
------------------------------------------------------------------------
Signature Guaranteed:
*/
------------------------------------------------
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
57
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available
funds to ___________________________________________________________________
for the account of ____________________________________________, account number
__________________________________, or, if mailed by check, to _______________.
Applicable statements should be mailed to ___________________________.
---------------------------------
Signature of assignee or agent
(for authorization of wire
transfer only)
58
EXHIBIT B
CERTIFICATE OF TRUST OF
AMERICAN HOME MORTGAGE INVESTMENT TRUST 2005-1
THIS Certificate of Trust of American Home Mortgage Investment Trust
2005-1 (the "Trust"), dated March [__], 2005, is being duly executed and filed
by Wilmington Trust Company, a Delaware banking corporation, as trustee, to form
a statutory trust under the Delaware Statutory Trust Act (12 DEL. CODE, ss. 3801
ET SEQ.).
1. NAME. The name of the statutory trust formed hereby is
American Home Mortgage Investment Trust 2005-1.
2. DELAWARE TRUSTEE. The name and business address of the trustee
of the Trust in the State of Delaware is Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
Wilmington Trust Company,
not in its individual capacity but solely as owner trustee under a Trust
Agreement dated as of March [__], 2005
By:
----------------------------------
Name:
Title:
59
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
The undersigned seller, as registered holder (the "Seller"), intends to
transfer the Rule 144A Securities described above to the undersigned buyer (the
"Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the
Owner Trustee, the Certificate Registrar and the Depositor (as defined in the
Amended and Restated Trust Agreement (the "Agreement"), dated as of March 23,
2005, among American Home Mortgage Securities LLC, as Depositor, Wilmington
Trust Company, as Owner Trustee, Deutsche Bank National Trust Company, as
Indenture Trustee, Certificate Registrar and Certificate Paying Agent) pursuant
to Section 3.05 of the Agreement and Deutsche Bank National Trust Company, as
indenture trustee, as follows:
a. The Buyer understands that the Rule 144A Securities
have not been registered under the 1933 Act or the securities laws of
any state.
b. The Buyer considers itself a substantial,
sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Rule 144A
Securities.
60
c. The Buyer has been furnished with all information
regarding the Rule 144A Securities that it has requested from the
Seller, the Indenture Trustee, the Owner Trustee, the RMBS Master
Servicer, the HELOC Back-up Servicer, the RMBS Servicer or the HELOC
Servicer.
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security
from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the
Rule 144A Securities under the 1933 Act or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the
1933 Act or require registration pursuant thereto, nor will it act, nor
has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as
that term is defined in Rule 144A under the 1933 Act and has completed
either of the forms of certification to that effect attached hereto as
Annex 1 or Annex 2. The Buyer is aware that the sale to it is being
made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A
Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities may be
resold, pledged or transferred only (i) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the 1933 Act.
3. The Buyer warrants and represents to, and covenants with, the
Seller, the Indenture Trustee, Owner Trustee, the Certificate Registrar, RMBS
Master Servicer, the Securities Administrator, the HELOC Back-up Servicer, the
RMBS Servicer, the HELOC Servicer and the Depositor that either (1) the Buyer is
(A) not an employee benefit plan (within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")), or a
plan (within the meaning of Section 4975(e)(1) of the Internal Revenue Code of
1986 ("Code")), which (in either case) is subject to ERISA or Section 4975 of
the Code (each, a "Plan"), and (B) is not directly or indirectly purchasing the
Rule 144A Securities on behalf of, as investment manager of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, or (2) the Buyer understands
that registration of transfer of any Rule 144A Securities to any Plan, or to any
Person acting on behalf of any Plan, will not be made unless such Plan delivers
an opinion of its counsel, addressed and satisfactory to the Certificate
Registrar and the Depositor, to the effect (A) that the purchase and holding of
the Rule 144A Securities by, on behalf of or with "plan assets" of any Plan, (B)
operation of the Trust and (C) management of Trust assets are permissible under
applicable law, would not constitute or result in a prohibited transaction under
ERISA or Section 4975 of the Code, and would not subject the
61
Depositor, the Owner Trustee, the Indenture Trustee, the Certificate Registrar,
the Securities Administrator, the RMBS Master Servicer, the HELOC Back-up
Servicer, the RMBS Servicer or the HELOC Servicer to any obligation or liability
(including liabilities under ERISA or Section 4975 of the Code) in addition to
those undertaken in the Agreement, which Opinion of Counsel shall not be an
expense of the Depositor, the Owner Trustee, the Certificate Registrar, the
Indenture Trustee, the Securities Administrator, the RMBS Master Servicer, the
HELOC Back-up Servicer, the RMBS Servicer or the HELOC Servicer.
4. This document may be executed in one or more counterparts and
by the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
--------------------------------- ---------------------------------
Print Name of Seller Print Name of Buyer
By: By:
----------------------------- -----------------------------
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. No.
----------------------------- -----------------------------
Date: Date:
--------------------------- ---------------------------
62
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR BUYERS OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a
discretionary basis $______________(1) in securities (except for the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A) and (ii) the
Buyer satisfies the criteria in the category marked below.
___ CORPORATION, ETC. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
___ BANK. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the
business of which is substantially confined to banking and is
supervised by the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
----------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case, Buyer
must own and/or invest on a discretionary basis at least $10,000,000 in
securities.
63
___ SAVINGS AND LOAN. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements.
___ BROKER-DEALER. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
___ INSURANCE COMPANY. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a State or territory or the District of Columbia.
___ STATE OR LOCAL PLAN. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality
of the State or its political subdivisions, for the benefit of its
employees.
___ ERISA PLAN. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
___ INVESTMENT ADVISER. The Buyer is an investment adviser registered under
the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
___ BUSINESS DEVELOPMENT COMPANY. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers Act
of 1940.
___ TRUST FUND. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established
and maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees, or (b) employee benefit plans within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, but is not a trust fund that includes as participants individual
retirement accounts or H.R. 10 plans.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part of
an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit Notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
64
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
_____ ______ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for the
account of a third party (including any separate account) in reliance on Rule
144A, the Buyer will only purchase for the account of a third party that at the
time is a "qualified institutional buyer" within the meaning of Rule 144A. In
addition, the Buyer agrees that the Buyer will not purchase securities for a
third party unless the Buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification as of the date of such
purchase.
----------------------------------------
Print Name of Buyer
By:
-----------------------------------
Name:
Title:
Date:
-----------------------------------
65
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR BUYERS THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used.
____ The Buyer owned $__________________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $____________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit Notes and certificates
of deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that
each of the parties to which this certification is made are relying and will
continue to rely on the statements made herein because one or more sales to the
Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer's own account.
66
6. The undersigned will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
----------------------------------------
Print Name of Buyer
By:
------------------------------------
Name:
Title:
IF AN ADVISER:
----------------------------------------
Print Name of Buyer
Date:
----------------------------------
67
EXHIBIT D
CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status ("certificate") is delivered
pursuant to Section 3.03 of the Amended and Restated Trust Agreement, dated as
of March 23, 2005 (the "Trust Agreement"), among American Home Mortgage
Securities LLC, as Depositor, Wilmington Trust Company, as Owner Trustee and
Deutsche Bank National Trust Company, as Indenture Trustee, Certificate
Registrar and Certificate Paying Agent, in connection with the acquisition of,
transfer to or possession by the undersigned, whether as beneficial owner for
U.S. federal income tax purposes (the "Beneficial Owner"), or nominee on behalf
of the Beneficial Owner of the Certificates, Series 2005-1 (the "Certificate").
Capitalized terms used but not defined in this certificate have the respective
meanings given them in the Trust Agreement.
Each holder must complete Part I, Part II (if the holder is a nominee), and in
all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form W-9
relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the
Internal Revenue Code (relating to withholding tax on foreign partners) do not
apply in respect of the Certificate held by the undersigned, the undersigned
hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is ) not a non-resident
alien for purposes of U.S. income taxation;
2. My (The Beneficial Owner's) name and home address
are:
; and
3. My (The Beneficial Owner's) U.S. taxpayer
identification number (Social Security Number) is
B. Corporate, Partnership or Other Entity as Beneficial Owner
68
1. ___________________(Name of the Beneficial Owner) is
not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are
defined in the Code and Treasury Regulations;
2. The Beneficial Owner's office address and place of
incorporation (if applicable) is ; and
3. The Beneficial Owner's U.S. employer identification
number is __________________.
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this certificate has been made in reliance upon
information contained in:
an IRS Form W-9
a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Certificate Registrar at least thirty (30) days prior to
the date that the form relied upon becomes obsolete, and (ii) in connection with
change in Beneficial Owners, the undersigned agrees to submit a new Certificate
of Non-Foreign Status to the Certificate Registrar promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees
to notify the Certificate Registrar within sixty (60) days of the date that the
Beneficial Owner becomes a foreign person. The undersigned understands that this
certificate may be disclosed to the Internal Revenue Service by the Certificate
Registrar and any false statement contained therein could be punishable by
fines, imprisonment or both.
69
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct and
complete and will further declare that I will inform the Trust of any change in
the information provided above, and, if applicable, I further declare that I
have the authority* to sign this document.
--------------------
Name
--------------------
Title (if applicable)
--------------------
Signature and Date
*Note: If signed pursuant to a power of attorney, the power of attorney must
accompany this certificate.
70
EXHIBIT E
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Deutsche Bank National Trust Company
0000 X. Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Re: American Home Mortgage Investment Trust 2005-1 Trust
Certificates, SERIES 2005-1 (THE "CERTIFICATES")
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned Certificates,
we certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986, as
amended, nor are we acting on behalf of any such plan, (e) we are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory to
the addressees of this certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and
71
(3) the purchaser or transferee has otherwise complied with any conditions for
transfer set forth in the Trust Agreement.
Very truly yours,
[TRANSFEREE]
By:
---------------------------------
Authorized Officer
72
EXHIBIT F
TRANSFEROR CERTIFICATE
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Deutsche Bank National Trust Company
0000 X. Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Re: PROPOSED TRANSFER OF TRUST CERTIFICATES, AMERICAN HOME
MORTGAGE INVESTMENT TRUST 0000-0
Xxxxxxxxx:
This certification is being made by ____________________ (the
"Transferor") in connection with the proposed Transfer to _____________________
(the "Transferee") of a trust certificate (the "Trust Certificate") representing
___% fractional undivided interest in American Home Mortgage Investment Trust
2005-1 (the "Trust") created pursuant to a Trust Agreement, dated as of March
[__], 2005 (such agreement, as amended by the Amended and Restated Trust
Agreement dated March 23, 2005, being referred to herein as the "Trust
Agreement") among American Home Mortgage Securities LLC (the "Company"),
Wilmington Trust Company, as Owner Trustee (the "Owner Trustee") and Deutsche
Bank National Trust Company, as indenture trustee, certificate registrar and
certificate paying agent (the "Certificate Registrar"). Initially capitalized
terms used but not defined herein have the meanings assigned to them in the
Deposit Trust Agreement. The Transferor hereby certifies, represents and
warrants to, and covenants with, the Company, the Owner Trustee and the
Certificate Registrar that:
Neither the Transferor nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Trust
Certificate, any interest in any Trust Certificate or any other similar security
to any person in any manner, (b) has solicited any offer to buy or to accept a
pledge, disposition or other transfer of any Trust Certificate, any interest in
any Trust Certificate or any other similar security from any person in any
manner, (c) has otherwise approached or negotiated with respect to any Trust
Certificate, any interest in any Trust Certificate or any other similar security
with any person in any manner, (d) has made any general solicitation by means of
general advertising or in any other manner, or (e) has taken any other action,
that (as to any of (a) through (e) above) would constitute a distribution of the
Trust Certificates under the Securities Act of 1933 (the "Act"), that would
render the disposition of any Trust Certificate a violation of Section 5 of the
Act or any state securities law, or that would require registration or
qualification pursuant thereto. The Transferor will not act in any manner set
forth in the foregoing sentence with respect to any Trust Certificate. The
Transferor has not
73
and will not sell or otherwise transfer any of the Trust Certificates, except in
compliance with the provisions of the Trust Agreement.
Date:
-------------- ---------------------------------------
Name of Transferor
---------------------------------------
Signature
---------------------------------------
Name
---------------------------------------
Title
74
EXHIBIT G
FORM OF ERISA LETTER
--------------------
[DATE]
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Deutsche Bank National Trust Company
0000 X. Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Re: Proposed Transfer of Trust Certificates,
AMERICAN HOME MORTGAGE INVESTMENT TRUST 2005-1 (THE
"CERTIFICATES")
Gentlemen:
This certification is being made by (the "Transferee") in connection
with the proposed Transfer by (the "Transferor") of a trust certificate (the
"Trust Certificate") representing __% fractional undivided interest in American
Home Mortgage Investment Trust 2005-1 (the "Trust") created pursuant to a Trust
Agreement, dated as of March [__], 2005 (such agreement, as amended by the
Amended and Restated Trust Agreement dated March 23, 2005, being referred to
herein as the "Trust Agreement") among American Home Mortgage Securities LLC
(the "Company"), Wilmington Trust Company, as Owner Trustee (the "Owner
Trustee") and Deutsche Bank National Trust Company, as indenture trustee,
certificate registrar and certificate paying agent (the "Certificate
Registrar"). Initially capitalized terms used but not defined herein have the
meanings assigned to them in the Trust Agreement. The Transferor hereby
certifies, represents and warrants to, and covenants with, the Company, the
Owner Trustee and the Certificate Registrar that:
(i) either (a) or (b) is satisfied, as marked below:
___ a. The Transferor is not any employee benefit plan or
other plan subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue
Code of 1986 (the "Code")(each, a "Plan"), a Person acting, directly or
indirectly, on behalf of any such plan or any Person acquiring such
Certificates with "plan assets" of a Plan within the meaning of the
Department of Labor regulation promulgated at 29 C.F.R. ss.2510.3-101;
or
___ b. The Transferor is a Plan, a Person acting, directly or
indirectly, on behalf of a Plan or a Person acquiring such Certificates
with "plan assets" of a Plan within the meaning of the Department of
Labor regulation promulgated at 29 C.F.R. ss.2510.3-101 and has
provided the Depositor, the Owner Trustee, the Indenture Trustee, the
Certificate Registrar, the Seller, the HELOC Back-up Servicer and the
HELOC
75
Servicer with an Opinion of Counsel, satisfactory to the Certificate
Registrar to the effect (A) that the purchase and holding of a
Certificate by or on behalf of the Transferor (B) operation of the
Trust and (C) management of Trust assets are permissible under
applicable law, will not constitute or result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments) and will not
subject the Depositor, the Owner Trustee, the Indenture Trustee, the
Certificate Registrar, the Seller, the RMBS Master Servicer, the HELOC
Back-up Servicer, the RMBS Servicer or the HELOC Servicer to any
obligation or liability (including liabilities under ERISA or Section
4975 of the Code) in addition to those undertaken in the Trust
Agreement, which opinion of counsel shall not be an expense of the
Depositor, the Owner Trustee, the Indenture Trustee, the Certificate
Registrar, the Securities Administrator, the Seller, the RMBS Master
Servicer, the HELOC Back-up Servicer, the RMBS Servicer or the HELOC
Servicer; and
(ii) the Transferor is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406
and 407 of ERISA and Section 4975 of the Code and understands that each
of the parties to which this certification is made is relying and will
continue to rely on the statements made in this paragraph.
Very truly yours,
By: _____________________________
Name: _____________________________
Title: _____________________________
76
EXHIBIT H
FORM OF TRANSFEREE CERTIFICATE
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Deutsche Bank National Trust Company
0000 X. Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Re: Proposed Transfer of Trust Certificates,
AMERICAN HOME MORTGAGE INVESTMENT TRUST 2005-1 (THE "CERTIFICATES")
Gentlemen:
This certification is being made by (the "Transferee") in connection
with the proposed Transfer by (the "Transferor") of a trust certificate (the
"Trust Certificate") representing __% fractional undivided interest in American
Home Mortgage Investment Trust 2005-1 (the "Trust") created pursuant to a Trust
Agreement, dated as of March [__], 2005 (such agreement, as amended by the
Amended and Restated Trust Agreement dated March 23, 2005, being referred to
herein as the "Trust Agreement") among American Home Mortgage Securities LLC
(the "Company"), Wilmington Trust Company, as Owner Trustee (the "Owner
Trustee") and Deutsche Bank National Trust Company, as indenture trustee,
certificate registrar and certificate paying agent (the "Certificate
Registrar"). Initially capitalized terms used but not defined herein have the
meanings assigned to them in the Trust Agreement. The Transferor hereby
certifies, represents and warrants to, and covenants with, the Company, the
Owner Trustee and the Certificate Registrar that:
The Transferee is a REIT or a Qualified REIT Subsidiary within the
meaning of Section 856(a) or Section 856(i) of the Code, respectively.
Date:
-------------------- ---------------------------------------
Name of Transferee
---------------------------------------
Signature
---------------------------------------
Name
---------------------------------------
Title
I-1
EXHIBIT I
FORM OF LENDER TRANSFEROR CERTIFICATE
-------------------------------------
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Deutsche Bank National Trust Company,
as Indenture Trustee
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: Proposed Transfer of Trust Certificates,
AMERICAN HOME MORTGAGE INVESTMENT TRUST 2005-1 (THE "CERTIFICATES")
Gentlemen:
This certification is being made by ___________ (the "Transferor") in
connection with the proposed pledge or transfer to __________ of Certificates
representing __% fractional undivided interest in American Home Mortgage
Investment Trust 2005-1 created pursuant to a Trust Agreement, dated as of March
[__], 2005 (such agreement, as amended by the Amended and Restated Trust
Agreement, dated March 23, 2005, being referred to herein as the "Trust
Agreement") among American Home Mortgage Securities LLC, as depositor,
Wilmington Trust Company, as owner trustee (the "Owner Trustee") and Deutsche
Bank National Trust Company, solely in its capacity as indenture trustee (the
"Indenture Trustee"), certificate registrar (the "Certificate Registrar") and
certificate paying agent. Initially capitalized terms used but not defined
herein have the meanings assigned to them in the Trust Agreement. The Transferor
hereby certifies, represents and warrants to, and covenants with, the Owner
Trustee, the Indenture Trustee and the Certificate Registrar that:
(a) The Certificates are being pledged by the Transferor to secure
indebtedness of [___________] or is the subject of a loan agreement or
repurchase agreement treated as secured indebtedness of [___________] for
federal income tax purposes as permitted under the Trust Agreement; or
(b) The Certificates are being transferred by the related lender under
a loan agreement or repurchase agreement upon a default under any such
indebtedness as permitted under the Trust Agreement.
I-2
Date: _________________________________
Name of Transferor
_________________________________
Signature
_________________________________
Name
_________________________________
Title
3
