TRUST AGREEMENT among HMB ACCEPTANCE CORP., as Depositor, WILMINGTON TRUST COMPANY, as Owner Trustee and WELLS FARGO BANK, N.A., as Securities Administrator Dated as of November 1, 2006 HOMEBANC MORTGAGE TRUST 2006-2 Mortgage Backed Notes
EXECUTION
among
HMB
ACCEPTANCE CORP.,
as
Depositor,
WILMINGTON
TRUST COMPANY,
as
Owner
Trustee
and
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
Dated
as
of November 1, 2006
Mortgage
Backed Notes
TABLE
OF
CONTENTS
Page
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ARTICLE
I DEFINITIONS
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Section
1.01.
|
Definitions.
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1
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Section
1.02.
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Other
Definitional Provisions.
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4
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ARTICLE
II ORGANIZATION
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Section
2.01.
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Name.
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5
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Section
2.02.
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Office.
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5
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Section
2.03.
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Purpose
and Powers.
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5
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Section
2.04.
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Appointment
of the Owner Trustee.
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6
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Section
2.05.
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Initial
Capital Contribution; Declaration of Trust.
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6
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Section
2.06.
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Initial
Beneficiary.
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7
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Section
2.07.
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Liability
of the Holder of the Ownership Certificate.
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7
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Section
2.08.
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Situs
of Trust.
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7
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Section
2.09.
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Title
to Trust Property.
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7
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Section
2.10.
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Representations
and Warranties of the Depositor.
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7
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Section
2.11.
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Tax
Treatment.
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9
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Section
2.12.
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Investment
Company.
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9
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ARTICLE
III THE OWNERSHIP CERTIFICATE AND
TRANSFERS OF INTERESTS
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Section
3.01.
|
The
Ownership Certificate.
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9
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Section
3.02.
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Execution,
Authentication and Delivery of the Ownership Certificate.
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9
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Section
3.03.
|
Registration
of and Limitations on Transfers and Exchanges of the Ownership
Certificate.
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10
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Section
3.04.
|
Lost,
Stolen, Mutilated or Destroyed Ownership Certificate.
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12
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Section
3.05.
|
Persons
Deemed Certificateholders.
|
12
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Section
3.06.
|
Access
to List of Certificateholders’ Names and Addresses.
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12
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Section
3.07.
|
Maintenance
of Office or Agency.
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13
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Section
3.08.
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Certificate
Paying Agent.
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13
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ARTICLE
IV APPLICATION OF TRUST FUNDS; CERTAIN
DUTIES
|
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Section
4.01.
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Certificate
Distribution Account.
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14
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Section
4.02.
|
Application
of Trust Funds.
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15
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Section
4.03.
|
Method
of Payment.
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15
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Section
4.04.
|
Segregation
of Moneys; No Interest.
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15
|
i
ARTICLE
V AUTHORITY AND DUTIES OF THE OWNER TRUSTEE; ACTION BY
CERTIFICATEHOLDERS
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Section
5.01.
|
General
Authority.
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16
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Section
5.02.
|
General
Duties.
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16
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Section
5.03.
|
Action
Upon Instruction.
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16
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Section
5.04.
|
No
Duties Except as Specified under Specified Documents or in
Instructions.
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17
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Section
5.05.
|
Restrictions.
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17
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Section
5.06.
|
Prior
Notice to the Holder with Respect to Certain Matters; Separateness
Covenants.
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18
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Section
5.07.
|
Action
by the Holder with Respect to Bankruptcy.
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20
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Section
5.08.
|
Restrictions
on the Holder’s Power.
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20
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ARTICLE
VI CONCERNING THE OWNER TRUSTEE
|
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Section
6.01.
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Acceptance
of Trusts and Duties.
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21
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Section
6.02.
|
Furnishing
of Documents.
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21
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Section
6.03.
|
Books
and Records.
|
22
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Section
6.04.
|
Representations
and Warranties.
|
22
|
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Section
6.05.
|
Reliance;
Advice of Counsel.
|
23
|
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Section
6.06.
|
Not
Acting in Individual Capacity.
|
24
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Section
6.07.
|
Owner
Trustee Not Liable for Ownership Certificate or
Collateral.
|
24
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Section
6.08.
|
Owner
Trustee May Own Ownership Certificate and Notes.
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24
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Section
6.09.
|
Licenses.
|
25
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Section
6.10.
|
Doing
Business in Other Jurisdictions.
|
25
|
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Section
6.11.
|
Reporting
Requirements of the Commission.
|
25
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ARTICLE
VII INDEMNIFICATION AND COMPENSATION
|
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Section
7.01.
|
Trust
Expenses.
|
27
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Section
7.02.
|
Indemnification.
|
27
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Section
7.03.
|
Compensation.
|
28
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Section
7.04.
|
Lien
on Trust Estate.
|
28
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ARTICLE
VIII TERMINATION OF
AGREEMENT
|
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Section
8.01.
|
Termination
of Agreement.
|
28
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ARTICLE
IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER
TRUSTEES
|
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Section
9.01.
|
Eligibility
Requirements for Owner Trustee.
|
29
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Section
9.02.
|
Resignation
or Removal of Owner Trustee.
|
29
|
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Section
9.03.
|
Successor
Owner Trustee.
|
30
|
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Section
9.04.
|
Merger
or Consolidation of Owner Trustee.
|
30
|
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Section
9.05.
|
Appointment
of Co-Trustee or Separate Trustee.
|
31
|
ii
ARTICLE
X MISCELLANEOUS
|
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Section
10.01.
|
Supplements
and Amendments.
|
32
|
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Section
10.02.
|
No
Legal Title to Trust Estate in Holder.
|
33
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Section
10.03.
|
Pledge
of Collateral by Owner Trustee is Binding.
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33
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Section
10.04.
|
Limitations
on Rights of Others.
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33
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Section
10.05.
|
Notices.
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33
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Section
10.06.
|
Severability.
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34
|
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Section
10.07.
|
Separate
Counterparts.
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34
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Section
10.08.
|
Successors
and Assigns.
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34
|
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Section
10.09.
|
Headings.
|
34
|
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Section
10.10.
|
Governing
Law.
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34
|
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Section
10.11.
|
No
Petition.
|
34
|
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Section
10.12.
|
No
Recourse.
|
35
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ARTICLE
XI OFFICERS
|
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Section
11.01.
|
Appointment
of Officers.
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35
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Section
11.02.
|
Officers
to Provide Information to the Owner Trustee.
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35
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EXHIBITS: | ||||
Exhibit
A
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Form
of Ownership Certificate
|
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Exhibit
B
|
Form
of Certificate of Trust
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Exhibit
C
|
Form
of Rule 144A Investment Letter
|
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Exhibit
D
|
Owner
Trustee Fee Letter Agreement
|
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Exhibit
E
|
Form
of Representation and Warranty Regarding Transferee’s Status as a REIT,
Qualified REIT Subsidiary or Disregarded Entity
|
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Exhibit
F
|
Transaction
Parties
|
iii
This
TRUST AGREEMENT dated as of November 1, 2006, is by and among HMB ACCEPTANCE
CORP., a Delaware corporation (the “Depositor”), WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as owner trustee (the “Owner Trustee”) and XXXXX
FARGO BANK, N.A., a national banking association, as securities administrator
(the “Securities Administrator”).
WHEREAS,
pursuant to the Transfer and Servicing Agreement entered into simultaneously
with this Trust Agreement, Depositor intends to sell, transfer and assign to
a
Delaware statutory trust created hereunder certain Mortgage Loans and related
assets (collectively, the “Collateral”), which statutory trust would then pledge
such Collateral under an indenture in order to secure the issuance of the
HomeBanc Mortgage Trust 2006-2 Mortgage-Backed Notes (the “Notes”), the net
proceeds of which would be applied toward the purchase of the
Collateral.
WHEREAS,
the Depositor, the Owner Trustee and the Initial Holder intend that the Trust
be
treated as a Qualified REIT Subsidiary for federal income tax
purposes.
WHEREAS,
the Depositor, the Owner Trustee and the Securities Administrator desire to
enter into this Agreement in order to effect the foregoing.
NOW
THEREFORE, in consideration of the premises and mutual agreements herein
contained, the parties hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
For
all
purposes of this Agreement, the following terms shall have the meanings set
forth below.
Actual
Knowledge:
With
respect to the Owner Trustee, any officer within the Corporate Trust Office
of
the Owner Trustee responsible for administering the Trust hereunder, or under
the Operative Agreements, who has actual knowledge of an action taken or an
action not taken with regard to the Trust. Actions taken or actions not taken
of
which the Owner Trustee should have had knowledge, or has constructive
knowledge, do not meet the definition of Actual Knowledge hereunder. With
respect to the Securities Administrator, any Responsible Officer of the
Securities Administrator who has actual knowledge of an action taken or an
action not taken with regard to the Trust.
Agreement
or Trust Agreement:
This
Trust Agreement and any amendments or modifications hereof.
Authorized
Officer:
With
respect to the Trust, any officer of the Owner Trustee who is authorized to
act
for the Owner Trustee in matters relating to the Trust and who is identified
on
the list of Authorized Officers delivered by the Owner Trustee to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter) and, so long as the Administration Agreement is in
effect, any Vice President, Assistant Vice President, Trust Officer, or more
senior officer of the Securities Administrator who is authorized to act for
the
Securities Administrator in matters relating to the Trust and to be acted upon
by the Securities Administrator pursuant to the Administration Agreement and
who
is identified on the list of Authorized Officers delivered by the Securities
Administrator to the Indenture Trustee on the Closing Date (as such list may
be
modified or supplemented from time to time thereafter).
1
Bank:
Wilmington Trust Company in its individual capacity and not as Owner Trustee
under this Agreement.
Certificate:
Any
Ownership Certificate issued pursuant to this Agreement.
Certificate
Distribution Account:
The
certificate distribution account maintained by or on behalf of the Securities
Administrator for the benefit of the Trust
and
the Certificateholders pursuant to Section 4.01.
Certificate
of Trust:
The
Certificate of Trust to be filed by the Owner Trustee for the Trust pursuant
to
Section 3810(a) of the Delaware Trust Statute in the form of Exhibit B
hereto.
Certificate
Paying Agent:
Initially, the Securities Administrator, in its capacity as Certificate Paying
Agent, or any successor to the Securities Administrator in such
capacity.
Certificate
Register:
The
register maintained by the Certificate Registrar in which the Certificate
Registrar shall provide for the registration of the Ownership Certificate and
of
transfers and exchanges of such Ownership Certificate.
Certificate
Registrar:
Initially, the Securities Administrator, in its capacity as Certificate
Registrar, or any successor to the Securities Administrator in such
capacity.
Certificateholder
or Holder:
The
Person in whose name an Ownership Certificate is registered in the Certificate
Register.
Collateral:
As
defined in the Indenture.
Corporate
Trust Office:
With
respect to (i) the Owner Trustee, the principal corporate trust office of the
Owner Trustee located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, or at such other address in the State of
Delaware as the Owner Trustee may designate by notice to the Securities
Administrator and the Certificateholder, or the principal corporate trust office
of any successor Owner Trustee (the address (which shall be in the State of
Delaware) of which the successor owner trustee will notify the Securities
Administrator and the Certificateholder); (ii) the Securities Administrator,
the
principal corporate trust office of the Securities Administrator at which,
at
any particular time, its corporate trust business shall be administered, which
office at the date hereof for purposes of transfers and exchanges and for
presentment and surrender of the Ownership Certificate and for payment thereof
is located at Xxxxx Fargo Bank, N.A., Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Client Manager (HomeBanc Mortgage
Trust
2006-2), and for all other purposes is located at Xxxxx Xxxxx Xxxx, X.X., X.X.
Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Group (HomeBanc
Mortgage Trust 2006-2) (or for overnight deliveries, at 0000 Xxx Xxxxxxxxx
Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Manager (HomeBanc Mortgage Trust
2006-2)); and (iii) the Certificate Registrar, the principal office of the
Certificate Registrar at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Agreement is located at the Corporate Trust Office of the Securities
Administrator, or at such other address as the Certificate Registrar may
designate from time to time by notice to the Securityholders and the Trust,
or
the principal corporate trust office of any successor Certificate Registrar
at
the address designated by such successor Certificate Registrar by notice to
the
Securityholders and the Trust.
2
Delaware
Trust Statute:
Chapter
38 of Title 12 of the Delaware Code, 12 Del.C. Section 3801 et
seq.,
as the
same may be amended from time to time.
Depositor:
HMB
Acceptance Corp., a Delaware corporation.
Disregarded
Entity:
An
entity that is both (a) solely owned by a REIT or Qualified REIT Subsidiary
and
(b) disregarded as an entity separate from its owner within the meaning of
Section 301.7701-2(c)(2) of the Treasury Regulations.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
Indenture:
The
indenture dated as of November 1, 2006, among the Issuer, the Indenture Trustee
and the Securities Administrator, as such may be amended or supplemented from
time to time.
Indenture
Trustee:
U.S.
Bank National Association, not in its individual capacity but solely as
Indenture Trustee, or any successor in interest.
Initial
Holder:
HMB
Acceptance Corp., or any successor in interest.
Liabilities:
The
meaning specified in Section 7.02.
Master
Servicer:
Xxxxx
Fargo Bank, N.A., or any successor in interest.
Net
Proceeds from the Notes:
The
proceeds received by the Trust from time to time from the issuance and sale
of
its Notes, less the costs and expenses incurred in connection with the issuance
and sale of such Notes.
Non-U.S.
Person:
Any
person other than a “United States person” as defined in Section 7701(a)(30) of
the Code.
Officer:
Those
officers of the Trust referred to in Article XI.
Opinion
of Counsel:
One or
more written opinions of counsel who may, except as otherwise expressly provided
in this Agreement, be employees of or counsel to the Depositor and who shall
be
satisfactory to the Owner Trustee and the Securities Administrator, which
opinion shall be addressed to the Owner Trustee and the Securities
Administrator.
Ownership
Certificate:
An
equity certificate representing a 100% undivided beneficial interest in the
Trust in substantially the form annexed hereto as Exhibit A.
3
Owner
Trustee:
Wilmington Trust Company, a Delaware banking corporation, and any successor
in
interest, not in its individual capacity, but solely as owner trustee under
the
Trust Agreement.
Percentage
Interest:
With
respect to any Ownership Certificate, the percentage set forth on the face
thereof.
Proposer:
The
Certificateholder making a written request pursuant to Section
5.07.
Prospective
Holder:
Each
prospective purchaser and any subsequent transferee of the Ownership
Certificate.
Qualified
REIT Subsidiary:
A
direct
or indirect 100% owned subsidiary of a REIT that satisfies the requirements
of
Section 856(i) of the Code.
REIT:
A real
estate investment trust within the meaning of Sections 856 and 857 of the
Code.
Responsible
Officer:
With
respect to (i) the Owner Trustee, any officer within the Corporate Trust Office
of the Owner Trustee with direct responsibility for the administration of the
Trust and also, with respect to a particular matter, any other officer to whom
such matter is referred because of such officer’s knowledge of, and familiarity
with, the particular subject; and (ii) the Securities Administrator, any officer
within the Corporate Trust Office of the Securities Administrator with direct
responsibility for the administration of the Trust and also, with respect to
a
particular matter, any other officer to whom such matter is referred because
of
such officer’s knowledge of, and familiarity with, the particular
subject.
Secretary
of State:
The
Secretary of State of the State of Delaware.
Securities
Administrator:
Xxxxx
Fargo Bank, N.A., or any successor in interest.
Seller:
HomeBanc Corp.
Single
Certificate:
An
Ownership Certificate representing a 100% Percentage Interest.
Transfer
and Servicing Agreement:
The
Transfer and Servicing Agreement dated as of November 1, 2006, by and among
the
Trust, as Issuer, HMB Acceptance Corp., as Depositor, HomeBanc Corp., as Seller
and Servicer, Xxxxx Fargo Bank, N.A., as Master Servicer and Securities
Administrator, and U.S. Bank National Association, as Indenture Trustee, as
such
may be amended or supplemented from time to time.
Trust:
The
trust established pursuant to this Agreement which shall carry on its business
operations under the name of “HomeBanc Mortgage Trust 2006-2.”
Section
1.02. Other Definitional Provisions.
Capitalized
terms used herein and not defined herein shall have the same meanings assigned
to them in the Transfer and Servicing Agreement or in the Indenture, as
applicable.
4
(a) All
terms
defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As
used
in this Agreement and in any certificate or other document made or delivered
pursuant hereto or thereto, accounting terms not defined in this Agreement
or in
any such certificate or other document, and accounting terms partly defined
in
this Agreement or in any such certificate or other document to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles. To the extent that the definitions of accounting
terms in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Agreement or in any such
certificate or other document shall control.
(c) The
words
“hereof,” “herein,” “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; Section and Exhibit references contained in this
Agreement are references to Sections and Exhibits in or to this Agreement unless
otherwise specified; and the term “including” shall mean “including without
limitation.”
(d) The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as the feminine
and neuter genders of such terms.
(e) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE
II
ORGANIZATION
Section
2.01. Name.
The
trust
established under this Agreement shall be referred to as “HomeBanc Mortgage
Trust 2006-2” in which name the Owner Trustee and the Officers may conduct the
activities contemplated hereby, including the making and executing of contracts
and other instruments on behalf of the Trust and xxx and be sued.
Section
2.02. Office.
The
principal office of the Trust shall be in care of the Owner Trustee, at its
Corporate Trust Office. The Trust shall also have an office in care of the
Securities Administrator at its Corporate Trust Office.
Section
2.03. Purpose
and Powers.
The
purpose of the Trust is, and the Trust shall have the power and authority,
to
engage in any of the following activities:
(a) to
issue
one or more Classes of Notes from time to time pursuant to the Indenture and
the
Ownership Certificate pursuant to this Agreement and to sell, transfer and
exchange such Notes and such Ownership Certificate;
5
(b) with
the
proceeds of the sale of the Notes and the Ownership Certificate, to pay the
organizational, start-up and transactional expenses of the Trust and to pay
the
balance of the Net Proceeds from the Notes to the Depositor in consideration
of
the transfer to the Trust of the Collateral;
(c) to
assign, grant, transfer, pledge, mortgage and convey the Trust Estate pursuant
to the Indenture and to hold, manage and distribute to the Certificateholder
pursuant to the terms of the Transfer and Servicing Agreement any portion of
the
Collateral released from the lien of, and remitted to the Trust pursuant to,
the
Indenture;
(d) to
enter
into and perform its obligations under the Operative Agreements and any Cap
Agreement to which it is to be a party;
(e) to
engage
in those activities, including entering into agreements, that are necessary,
suitable or convenient to accomplish the foregoing or are incidental thereto
or
connected therewith; and
(f) subject
to compliance with the Operative Agreements, to engage in such other activities
as may be required in connection with conservation of the Trust Estate and
the
making of distributions and payments to the Certificateholders and the
Noteholders.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trust shall
not
engage in any activity other than in connection with the foregoing or other
than
as required or authorized by the terms of this Agreement or the Operative
Agreements.
Section
2.04. Appointment
of the Owner Trustee.
The
Depositor hereby appoints the Bank to act as owner trustee (the “Owner Trustee”)
of the Trust effective as of the date hereof to have all the rights, powers
and
duties set forth herein with respect to accomplishing the purposes of the
Trust.
The
Owner
Trustee is hereby authorized to execute this Agreement, the Indenture, the
Administration Agreement, the Transfer and Servicing Agreement and any other
Operative Agreement on behalf of the Trust. The Owner Trustee is hereby
authorized to take all actions required or permitted to be taken by it in
accordance with the terms of this Agreement.
Section
2.05. Initial Capital Contribution; Declaration of Trust.
(a) The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Trust,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the Closing Date, of the foregoing
contribution which shall constitute the initial corpus of the Trust Estate
and
shall be deposited in the Certificate Distribution Account. The Depositor shall
pay organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such
expenses paid by the Owner Trustee.
(b) The
Owner
Trustee hereby declares that it will hold the Trust Estate in trust upon and
subject to the conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of the Trust under the Operative
Agreements. It is the intention of the parties hereto that the Trust constitute
a statutory trust under the Delaware Trust Statute and that this Agreement
constitute the governing instrument of such statutory trust. No later than
the
Closing Date, the Owner Trustee shall cause the filing of the Certificate of
Trust with the Secretary of State. Except as otherwise provided in this
Agreement, the rights of the Certificateholders will be those of beneficial
owners of the Trust.
6
Section
2.06. Initial
Beneficiary.
Upon
the
formation of the Trust by the contribution by the Depositor pursuant to Section
2.05 and until the issuance of the Ownership Certificate, the Depositor shall
be
the sole beneficiary of the Trust.
Section
2.07. Liability
of the Holder of the Ownership Certificate.
To
the
fullest extent permitted by applicable law, no Certificateholder shall have
any
personal liability for any liability or obligation of the Trust or, except
as
otherwise provided herein, to the Owner Trustee.
Section
2.08. Situs
of Trust.
The
Trust
will be located in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the States of Delaware,
New York or the jurisdiction where the Securities Administrator maintains bank
accounts with respect to collections on the Collateral. The only offices of
the
Trust will be as described in Section 2.02 hereof. The Trust shall not have
any
employees; provided,
however,
that
nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware. Payments will be received
by
the Trust only in Delaware, New York, the jurisdiction in which the Securities
Administrator maintains the Certificate Distribution Account or such other
jurisdiction designated by the Depositor, and payments will be made by the
Trust
only from the Trust Accounts or from Delaware, New York or such other
jurisdiction designated by the Depositor.
Section
2.09. Title to Trust Property.
(a) Subject
to the Indenture, title to all of the Trust Estate shall be vested at all times
in the Trust as a separate legal entity until this Agreement terminates pursuant
to Article VIII hereof; provided,
however,
that if
the laws of any jurisdiction require that title to any part of the Trust Estate
be vested in the trustee of the Trust, then title to that part of the Trust
Estate shall be deemed to be vested in the Owner Trustee or any co-trustee
or
separate trustee, as the case may be, appointed pursuant to Article IX of this
Agreement.
(b) The
Certificateholders shall have no legal title to any part of the Trust Estate.
No
transfer by operation of law or otherwise of any interest of the
Certificateholders shall operate to terminate this Agreement or the trusts
created hereunder or entitle any transferee to an accounting or to the transfer
to it of any part of the Trust Estate.
Section
2.10. Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to the Owner Trustee and the Securities
Administrator as of the Closing Date, as follows:
(a) The
Depositor is duly organized and validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority
to
own its properties and to conduct its business as such properties are currently
owned and such business is presently conducted and had at all relevant times,
and now has, power, authority and the legal right to acquire and own the
Mortgage Loans.
7
(b) The
Depositor is duly qualified to do business as a foreign corporation in good
standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the conduct of
its
business shall require such qualifications.
(c) The
Depositor has the power and authority to execute and deliver any Operative
Agreement to which it is a party and to carry out its terms; the Depositor
has
full power and authority to sell and assign the Collateral to be sold and
assigned to and deposited with the Trust and the Depositor has duly authorized
such assignment and deposit to the Trust by all necessary corporate action;
and
the execution, delivery and performance of this Agreement or any other Operative
Agreement to which it is a party has been duly authorized by the Depositor
by
all necessary corporate action and, assuming the due authorization, execution
and delivery of each such agreement by the other parties thereto, each such
agreement constitutes a valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforcement thereof may be subject to or limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws relating to or affecting
creditors’ rights generally and by general equitable principles.
(d) The
consummation of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof do not conflict with, result in
any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the certificate of incorporation
or
by-laws of the Depositor, or any indenture, agreement or other instrument to
which the Depositor is a party or by which it is bound; nor result in the
creation or imposition of any lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than pursuant
to the Operative Agreements); nor violate any law or, to the best of the
Depositor’s knowledge, any order, rule or regulation applicable to the Depositor
of any court or of any Federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Depositor
or
its properties.
(e) There
are
no proceedings or investigations, pending or, to the best knowledge of the
Depositor, threatened before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Depositor
or
its properties: (i) asserting the invalidity of this Agreement or any other
Operative Agreement to which the Depositor is a party, (ii) seeking to prevent
the consummation of any of the transactions contemplated by this Agreement
or
any other Operative Agreement to which the Depositor is a party or (iii) seeking
any determination or ruling that might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement or any other Operative Agreement to which
the
Depositor is a party.
(f) The
representations and warranties of the Depositor made pursuant to the Transfer
and Servicing Agreement are true and correct.
(g) This
Agreement is not required to be qualified under the Trust Indenture Act of
1939,
as amended, and the Trust is not required to be registered as an “investment
company” under the Investment Company Act of 1940, as amended.
8
Section
2.11. Tax
Treatment. The
Depositor, the Owner Trustee and the Initial Holder intend that the Trust be
treated for federal income tax purposes as a Qualified REIT Subsidiary. In
accordance with Section 5.08(c) of the Transfer and Servicing Agreement and
Section 6.06 of the Indenture, the Securities Administrator will perform the
calculation of accrual of original issue discount and the amortization of
premium on the Securities and will prepare and make any necessary tax filings
under the Code with respect to the payments on the Notes.
Section
2.12. Investment
Company.
Neither
the Depositor nor any holder of an Ownership Certificate shall take any action
which would cause the Trust to become an “investment company” which would be
required to register under the Investment Company Act of 1940, as
amended.
ARTICLE
III
THE
OWNERSHIP CERTIFICATE AND TRANSFERS OF INTERESTS
Section
3.01. The
Ownership Certificate.
The
Ownership Certificate shall initially be issued as a single certificate in
definitive, fully registered form and shall initially be registered in the
name
of the Initial Holder. No Ownership Certificate shall be issued in authorized
denominations of less than a 100% Percentage Interest in such Certificate.
The
Ownership Certificate shall be executed on behalf of the Trust by manual or
facsimile signature of an Authorized Officer of the Owner Trustee and
authenticated in the manner provided in Section 3.02. An Ownership Certificate
bearing the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefit of this Agreement,
notwithstanding that such individuals or any of them shall have ceased to be
so
authorized prior to the authentication and delivery of such Ownership
Certificate or did not hold such offices at the date of authentication and
delivery of such Ownership Certificate. A Person shall become a
Certificateholder and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such Person’s acceptance of an
Ownership Certificate duly registered in such Person’s name pursuant to Section
3.03.
Section
3.02. Execution, Authentication and Delivery of the Ownership
Certificate.
Concurrently
with the sale of the Collateral to the Trust pursuant to the Transfer and
Servicing Agreement, the Owner Trustee shall cause the Ownership Certificate
issued hereunder to be executed and authenticated on behalf of the Trust and
authenticated and delivered to the Initial Holder 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. The Ownership
Certificate shall not entitle its Holder to any benefits under this Agreement
or
be valid for any purpose unless there shall appear on such Ownership Certificate
a certificate of authentication substantially in the form set forth in Exhibit
A
hereto, executed by the Certificate Registrar, as the Owner Trustee’s
authenticating agent, by manual signature; such authentication shall constitute
conclusive evidence that such Ownership Certificate shall have been duly
authenticated and delivered hereunder. An Ownership Certificate shall be dated
the date of its authentication.
9
Section
3.03. Registration
of and Limitations on Transfers and Exchanges of the Ownership
Certificate.
The
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.07, a Certificate Register in which, subject
to
such reasonable regulations as it may prescribe, the Certificate Registrar
shall
provide for the registration of the Ownership Certificate and of transfers
and
exchanges of the Ownership Certificate as herein provided; provided,
however,
that no
Ownership Certificate shall be issued in any such transfer and exchange
representing less than a 100% Percentage Interest in such Certificate; and
provided,
further,
that no
Ownership Certificate shall be issued in any such transfer and exchange except
in accordance with the provisions and conditions set forth below in this Section
3.03. The Securities Administrator shall be the initial Certificate Registrar.
If the Certificate Registrar resigns or is removed, the Owner Trustee, with
the
consent of the Depositor, shall appoint a successor Certificate
Registrar.
Subject
to satisfaction of the conditions set forth below, upon surrender for
registration of transfer of an Ownership Certificate at the office or agency
maintained pursuant to Section 3.07, the Owner Trustee shall execute,
authenticate and deliver (or cause the Securities Administrator as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee, a new Ownership Certificate evidencing the Percentage Interest
of
the Ownership Certificate so surrendered and dated the date of authentication
by
the Owner Trustee or the Certificate Registrar.
Every
Ownership Certificate presented or surrendered for registration of transfer
or
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed
by
the Holder or such Holder’s attorney duly authorized in writing. Each Ownership
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
the
Ownership Certificate, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
that
may be imposed in connection with any transfer or exchange of the Ownership
Certificate or any other expense arising as a result of any registration of
transfer or exchange.
The
preceding provisions of this Section notwithstanding, the Owner Trustee shall
not make and the Certificate Registrar shall not register transfer or exchanges
of an Ownership Certificate for a period of 15 days preceding the due date
for
any payment with respect to the Ownership Certificate.
No
transfer of an Ownership Certificate shall be made unless such transfer is
exempt from the registration requirements of the Securities Act and any
applicable state securities laws or is made in accordance with said Act and
laws. Except in the case of the initial transfer to the Initial Holder, in
the
event of any such transfer, the Certificate Registrar or the Depositor shall
prior to such transfer require the transferee to execute an investment letter
(in the form attached hereto as Exhibit C) certifying to the Trust, the Owner
Trustee, the Securities Administrator, the Certificate Registrar and the
Depositor that such transferee is a “qualified institutional buyer” under Rule
144A under the Securities Act, and any expense associated with the preparation
and execution of any such investment letter shall not be an expense of the
Trust, the Owner Trustee, the Securities Administrator, the Certificate
Registrar or the Depositor. A Holder desiring to effect the transfer of an
Ownership Certificate shall, and does hereby agree to, indemnify the Trust,
the
Owner Trustee, the Securities Administrator, the Certificate Registrar and
the
Depositor against any and all liability that may result if the transfer is
not
so exempt or is not made in accordance with such federal and state
laws.
10
Except
in
the case of the initial transfer to the Initial Holder, no transfer of an
Ownership Certificate shall be made unless the Certificate Registrar shall
have
received a representation letter (in the form attached hereto as Exhibit C)
from
the proposed transferee of such Ownership Certificate to the effect that such
proposed transferee is not an employee benefit plan or other retirement
arrangement subject to Section 406 of ERISA, or Section 4975 of the Code, or
any
substantially similar applicable law, or a Person acting on behalf of or using
the assets of any such plan, which representation letter shall not be an expense
of the Trust, the Owner Trustee, the Securities Administrator, the Certificate
Registrar or the Depositor.
Prior
to
and as a condition of the registration of any transfer, sale or other
disposition of the Ownership Certificate, the Initial Holder of the Ownership
Certificate and each Prospective Holder of the Ownership Certificate shall
represent and warrant in writing, in substantially the form set forth in Exhibit
F hereto, to the Owner Trustee, the Securities Administrator and the Certificate
Registrar and any of their respective successors that:
(i) Such
Person is duly authorized to purchase the Ownership Certificate and its purchase
of investments having the characteristics of the Ownership Certificate is
authorized under, and not directly or indirectly in contravention of, any law,
charter, trust instrument or other operative document, investment guidelines
or
list of permissible or impermissible investments that is applicable to the
investor;
(ii) Such
Person understands that each holder of an Ownership Certificate, by virtue
of
its acceptance thereof, assents to the terms, provisions and conditions of
the
Agreement; and
(iii) Such
Person is a REIT, a Qualified REIT Subsidiary or a Disregarded
Entity.
The
Trust
shall cause each Certificate to contain a legend, substantially in the form
of
the applicable legends provided in Exhibit A hereto, stating that transfer
of
such Certificate is subject to certain restrictions and referring prospective
purchasers of the Certificates to this Section 3.03 with respect to such
restrictions.
Notwithstanding
anything to the contrary herein, no transfer, pledge or encumbrance of any
Ownership Certificate shall be made to any Person unless the Owner Trustee
and
the Certificate Registrar have received an Opinion of Counsel (which shall
not
be an expense of the Owner Trustee or the Certificate Registrar) to the effect
that such transfer, pledge or encumbrance would not have any adverse effect
of
the status of the Notes as debt for federal income tax purposes and would not
result in the Trust’s becoming taxable for federal income tax
purposes.
11
If
any
purported transferee shall become a Holder in violation of the provisions of
this Section, then upon receipt of written notice to the Certificate Registrar
and the Certificate Paying Agent that the registration of transfer of the
Ownership Certificate to such Holder was not in fact permitted by this Section,
then the transfer to that Holder shall be void
ab
initio
and the
last preceding Holder that was and that continues to be an eligible Holder
in
accordance with the provisions of this Section shall be restored to all rights
as Holder thereof retroactive to the date of such registration of transfer
of
the Ownership Certificate. The Certificate Registrar shall be under no liability
to any Person for any registration of transfer of an Ownership Certificate
that
is in fact not permitted by this Section, for making any payment due on such
Certificate to the Holder thereof or for taking any other action with respect
to
such Holder under the provisions of this Agreement so long as the transfer
was
registered upon receipt of the affidavit described in the immediately preceding
paragraph.
Section
3.04. Lost,
Stolen, Mutilated or Destroyed Ownership Certificate.
If
(a) a
mutilated Ownership Certificate is surrendered to the Certificate Registrar,
or
(b) the Certificate Registrar receives evidence to its satisfaction that an
Ownership Certificate has been destroyed, lost or stolen, and there is delivered
to the Certificate Registrar proof of ownership satisfactory to the Certificate
Registrar, together with such security or indemnity as required by the
Certificate Registrar and the Owner Trustee to save each of them harmless,
then
in the absence of notice to the Certificate Registrar or the Owner Trustee
that
such Ownership Certificate has been acquired by a protected purchaser, the
Owner
Trustee shall execute on behalf of the Trust, and the Owner Trustee or the
Certificate Registrar shall authenticate and deliver, in exchange for or in
lieu
of any such mutilated, destroyed, lost or stolen Ownership Certificate, a new
Ownership Certificate of like tenor and Percentage Interest. In connection
with
the issuance of any new Ownership Certificate under this Section 3.04, the
Owner
Trustee or the Certificate Registrar may require the payment of a sum sufficient
to cover any expenses of the Owner Trustee or the Certificate Registrar
(including any fees and expenses of counsel) and any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate Ownership
Certificate issued pursuant to this Section 3.04 shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not
the
lost, stolen or destroyed Ownership Certificate shall be found at any
time.
Section
3.05. Persons
Deemed Certificateholders.
Prior
to
due presentation of an Ownership Certificate for registration of transfer,
the
Owner Trustee, the Certificate Registrar or any Certificate Paying Agent may
treat the Holder as the owner of such Ownership Certificate for the purpose
of
receiving distributions pursuant to Section 4.02 and for all other purposes
whatsoever, and none of the Trust, the Owner Trustee, the Certificate Registrar
or any Certificate Paying Agent shall be bound by any notice to the
contrary.
Section
3.06. Access
to List of Certificateholders’ Names and Addresses.
The
Certificate Registrar shall furnish or cause to be furnished to the Depositor,
the Certificate Paying Agent or the Owner Trustee, within 15 days after receipt
by the Certificate Registrar of a written request therefor from the Depositor,
the Certificate Paying Agent or the Owner Trustee, in such form as the Depositor
or the Owner Trustee, as the case may be, may reasonably require, of the name
and address of the Holder as of the most recent Record Date. A Holder, by
receiving and holding an Ownership Certificate, shall be deemed to have agreed
not to hold any of the Trust, the Depositor, the Certificate Registrar, the
Certificate Paying Agent or the Owner Trustee accountable or liable for damages
by reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
12
Section
3.07. Maintenance
of Office or Agency.
The
Certificate Registrar on behalf of the Trust, shall maintain an office or
offices or agency or agencies where an Ownership Certificate may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Owner Trustee in respect of the Ownership Certificate and the Operative
Agreements may be served. The Certificate Registrar shall give the Owner Trustee
prompt notice, in writing, of any such notice or demand. The Certificate
Registrar initially designates the Corporate Trust Office of the Securities
Administrator as its office for such purposes. The Certificate Registrar shall
give prompt written notice to the Depositor, the Owner Trustee, the Certificate
Paying Agent and the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
Section
3.08. Certificate Paying Agent.
(a) The
Owner
Trustee may appoint, and hereby appoints, the Securities Administrator as
Certificate Paying Agent under this Agreement. The Certificate Paying Agent
shall make distributions to the Holder from the Certificate Distribution Account
pursuant to Section 4.02 hereof and Section 6.02 of the Transfer and Servicing
Agreement and, upon request, shall report the amounts of such distributions
to
the Owner Trustee. The Certificate Paying Agent shall have the revocable power
to withdraw funds from the Certificate Distribution Account for the purpose
of
making the distributions referred to above. The Securities Administrator hereby
accepts such appointment and further agrees that it will be bound by the
provisions of this Agreement and the Transfer and Servicing Agreement relating
to the Certificate Paying Agent and shall:
(i) hold
all
sums held by it for the payment of amounts due with respect to the Ownership
Certificate in trust for the benefit of the Person entitled thereto until such
sums shall be paid to such Person or otherwise disposed of as herein
provided;
(ii) give
the
Owner Trustee notice of any default by the Trust of which a Responsible Officer
of the Securities Administrator has actual knowledge in the making of any
payment required to be made with respect to the Ownership
Certificate;
(iii) at
any
time during the continuance of any such default, upon the written request of
the
Owner Trustee forthwith pay to the Owner Trustee on behalf of the Trust all
sums
so held in Trust by such Certificate Paying Agent;
(iv) immediately
resign as Certificate Paying Agent and forthwith pay to the Owner Trustee on
behalf of the Trust all sums held by it in trust for the payment of Ownership
Certificate if at any time it ceases to meet the standards under this Section
3.08 required to be met by the Certificate Paying Agent at the time of its
appointment; and
(v) comply
with all requirements of the Code with respect to the withholding from any
payments made by it on the Ownership Certificate of any applicable withholding
taxes imposed thereon and with respect to any applicable reporting requirements
in connection therewith; provided,
however,
that
with respect to reporting requirements applicable to original issue discount,
the accrual of market discount or the amortization of premium on the Ownership
Certificate, the Securities Administrator shall have first provided the
calculations pertaining thereto and the amount of any resulting withholding
taxes to the Securities Administrator and the Certificate Paying
Agent.
13
(vi) not
institute bankruptcy proceedings against the Trust in connection with this
Agreement.
(b) In
the
event that the Securities Administrator shall no longer be the Certificate
Paying Agent hereunder, the Owner Trustee, with the consent of the Depositor,
shall appoint a successor to act as Certificate Paying Agent (which shall be
a
bank or trust company). The Owner Trustee shall cause such successor Certificate
Paying Agent or any additional Certificate Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which
such
successor Certificate Paying Agent or additional Certificate Paying Agent shall
agree with the Owner Trustee that as Certificate Paying Agent, such successor
Certificate Paying Agent or additional Certificate Paying Agent will hold all
sums, if any, held by it for payment in trust for the benefit of the Holder
entitled thereto until such sums shall be paid to such Holder. The Certificate
Paying Agent shall return all unclaimed funds to the Owner Trustee, and upon
removal of a Certificate Paying Agent, such Certificate Paying Agent shall
also
return all funds in its possession to the Owner Trustee. The provisions of
Sections 5.03, 5.04, 6.01, 6.05, 6.07, 6.08, 7.01 and 7.02 shall apply to the
Securities Administrator, as though it had been named in such sections, also
in
its roles as Certificate Paying Agent and as Certificate Registrar for so long
as the Securities Administrator shall act as Certificate Paying Agent and as
Certificate Registrar and, to the extent applicable, to any other Certificate
Paying Agent or Certificate Registrar appointed hereunder. Any reference in
this
Agreement to the Certificate Paying Agent shall include any co-paying agent
unless the context requires otherwise.
ARTICLE
IV
APPLICATION
OF TRUST FUNDS; CERTAIN DUTIES
Section
4.01. Certificate
Distribution Account.
(a) The
Securities Administrator shall establish and maintain on behalf of the Trust
and
the Certificateholder, the Certificate Distribution Account.
(b) The
Certificate Distribution Account shall be an Eligible Account. If the
Certificate Distribution Account ceases to be an Eligible Account, the
Securities Administrator shall establish a new Certificate Distribution Account
that is an Eligible Account within 10 days and transfer all funds and investment
property on deposit in such existing Certificate Distribution Account into
such
new Certificate Distribution Account.
14
(c) The
Certificate Paying Agent shall withdraw funds from the Certificate Distribution
Account for payments to the Certificateholder in the manner specified in this
Agreement. In addition, the Securities Administrator may prior to making the
payment required pursuant to Section 4.02 from time to time make withdrawals
from the Certificate Distribution Account for the following
purposes:
(i) to
withdraw funds deposited in error in the Certificate Distribution Account;
and
(ii) to
clear
and terminate the Certificate Distribution Account upon the termination of
the
Trust.
(d) All
of
the right, title and interest of the Trust in all funds on deposit from time
to
time in the Certificate Distribution Account and in all proceeds thereof shall
be held for the benefit of the Holder and such other persons entitled to
payments therefrom. Except as otherwise expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and control
of
the Owner Trustee for the benefit of the Certificateholder.
Section
4.02. Application of Trust Funds.
(a) On
each
Payment Date, the Owner Trustee shall direct the Certificate Paying Agent to
distribute to the Holder, from amounts on deposit in the Certificate
Distribution Account, after payment of any amounts required to be paid pursuant
to Section 7.02, the distributions as provided in Section 6.02 of the Transfer
and Servicing Agreement with respect to such Payment Date. The Owner Trustee
hereby directs the Certificate Paying Agent to distribute on each Payment Date
to the Holder amounts on deposit in the Certificate Distribution Account in
accordance with Section 6.02 of the Transfer and Servicing Agreement and the
Certificate Paying Agent hereby acknowledges such direction.
(b) All
payments to be made under this Agreement by the Certificate Paying Agent shall
be made only from the income and proceeds of the Trust Estate and only to the
extent that the Certificate Paying Agent has received such income or proceeds.
The Certificate Paying Agent shall not be liable to any Holder, the Indenture
Trustee or the Owner Trustee for any amounts payable pursuant to this Section
4.02 except to the extent that non-payment is due to the Certificate Paying
Agent’s acts or omissions amounting to willful misconduct or gross
negligence.
(c) Distributions
to the Holder shall be subordinated to the creditors of the Trust, including,
without limitation, the Noteholders.
Section
4.03. Method
of Payment.
Subject
to Section 8.01(c), distributions required to be made to the Holder on any
Payment Date as provided in Section 4.02 shall be made to the Person who was
the
Holder on the preceding Record Date either by wire transfer, in immediately
available funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if the Holder 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 Holder
at
the address of such Holder appearing in the Certificate Register.
Section
4.04. Segregation
of Moneys; No Interest.
Moneys
received by or on behalf of the Owner Trustee hereunder and deposited into
the
Certificate Distribution Account will be segregated except to the extent
required otherwise by law or the provisions of the Transfer and Servicing
Agreement. The Owner Trustee shall not be liable for payment of any interest
in
respect of such moneys.
15
ARTICLE
V
AUTHORITY
AND DUTIES OF THE OWNER TRUSTEE;
ACTION
BY
CERTIFICATEHOLDERS
Section
5.01. General
Authority.
The
Owner
Trustee is authorized and directed to execute and deliver the Notes, the
Ownership Certificate, and the other Operative Agreements, including each Cap
Agreement, to which the Trust is to be a party and each certificate or other
document attached as an exhibit to or contemplated by the Operative Agreements
to which the Trust is to be a party and any amendment or other agreement or
instrument described herein, as evidenced conclusively by the Owner Trustee’s
execution thereof, and, on behalf of the Trust, to direct the Owner Trustee
to
authenticate the Notes. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Operative Agreements.
Section
5.02. General Duties.
(a) It
shall
be the duty of the Owner Trustee to discharge (or cause to be discharged) all
of
its responsibilities pursuant to the terms of this Agreement and the other
Operative Agreements to which the Trust is a party and to administer the Trust
in the interest of the Certificateholders, subject to the Operative Agreements
and in accordance with the provisions of this Agreement. Notwithstanding the
foregoing, the Owner Trustee shall be deemed to have discharged its duties
and
responsibilities hereunder and under the Operative Agreements to the extent
the
Securities Administrator has agreed in the Administration Agreement, the
Transfer and Servicing Agreement or this Agreement, respectively, to perform
any
act or to discharge any duty of the Owner Trustee or the Trust hereunder or
under any Operative Agreement, and the Owner Trustee shall not be held liable
for the default or failure of the Securities Administrator to carry out its
obligations under the Administration Agreement, this Agreement, the Transfer
and
Servicing Agreement, or any other Operative Agreement, respectively;
and
(b) It
shall
be the duty of the Depositor under the Administration Agreement to obtain and
preserve the Trust’s qualification to do business in each jurisdiction in which
such qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Collateral and each other
instrument and agreement included in the Trust Estate. It shall be the duty
of
the Owner Trustee to cooperate with the Depositor with respect to such
matters.
Section
5.03. Action Upon Instruction.
(a) Subject
to this Article V and in accordance with the terms of the Operative Agreements,
the Holder may by written instruction direct the Owner Trustee in the management
of the Trust, but only to the extent consistent with the limited purpose of
the
Trust. Such direction may be exercised at any time by written instruction of
the
Holder pursuant to this Article V.
(b) Notwithstanding
the foregoing, the Owner Trustee shall not be required to take any action
hereunder or under any Operative Agreement if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Owner Trustee or is contrary
to the terms hereof or of any Operative Agreement or is otherwise contrary
to
law.
16
(c) Whenever
the Owner Trustee is unable to decide between alternative courses of action
permitted or required by the terms of this Agreement or under any other
Operative Agreement, or in the event that the Owner Trustee is unsure as to
the
application of any provision of this Agreement or any other Operative Agreement
or any such provision is ambiguous as to its application, or is, or appears
to
be, in conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take
with respect to a particular set of facts, the Owner Trustee may promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Holder requesting instruction as to the course of action to be adopted, and
to
the extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Holder, the Owner Trustee shall not be liable on account
of
such action to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Agreement or any other
Operative Agreement, as it shall deem to be in the best interests of the Holder,
and the Owner Trustee shall have no liability to any Person for such action
or
inaction.
Section
5.04. No
Duties Except as Specified under Specified Documents or in
Instructions.
The
Owner
Trustee shall not have any duty or obligation to manage, make any payment with
respect to, register, record, sell, dispose of, or otherwise deal with the
Trust
Estate, or to otherwise take or refrain from taking any action under, or in
connection with, any document contemplated hereby to which the Owner Trustee
or
the Issuer is a party, except as expressly provided (i) in accordance with
the
powers granted to and the authority conferred upon the Owner Trustee pursuant
to
this Agreement, and (ii) in accordance with any document or instruction
delivered to the Owner Trustee pursuant to Section 5.03; and no implied duties
or obligations shall be read into this Agreement or any Operative Agreement
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any
time
or to otherwise perfect or maintain the perfection of any security interest
or
lien granted to the Trust or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or any Operative
Agreement or to prepare or file any tax return for the Trust. The Owner Trustee
nevertheless agrees that it will, at its own cost and expense, promptly take
all
action as may be necessary to discharge any liens on any part of the Trust
Estate that result from actions by, or claims against the Bank that are not
related to the ownership or the administration of the Trust Estate.
Section
5.05. Restrictions.
(a) The
Owner
Trustee shall not take any action that is inconsistent with the purposes of
the
Trust set forth in Section 2.03. The Holder shall not direct the Owner Trustee
to take action that would violate the provisions of this Section
5.05.
17
(b) The
Owner
Trustee shall not, except as provided herein, convey or transfer any of the
Trust’s properties or assets, including those included in the Trust Estate, to
any person unless such conveyance or transfer shall not violate the provisions
of the Indenture.
Section
5.06. Prior
Notice to the Holder with Respect to Certain Matters;
Separateness Covenants. 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 Holder in writing of the proposed action and the Holder shall
have
notified the Owner Trustee in writing prior to the 30th day after such notice
is
given that such Holder has consented to such action or provided alternative
direction:
(a) The
initiation of any claim or lawsuit by the Trust (except claims or lawsuits
brought in connection with the collection of cash distributions due and owing
under the Collateral) and the compromise of any action, claim or lawsuit brought
by or against the Trust (except with respect to the aforementioned claims or
lawsuits for collection of cash distributions due and owing under the
Collateral);
(b) The
election by the Trust to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Delaware Trust
Statute);
(c) The
amendment of the Indenture by a supplemental indenture or of this Agreement
or
any other Operative Agreement in circumstances where the consent of any
Noteholder is required;
(d) The
amendment or other change of the Indenture by a supplemental indenture or of
this Agreement, any Cap Agreement or any other Operative Agreement in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the Holder;
(e) The
amendment of the Transfer and Servicing Agreement in circumstances where the
consent of any Securityholder is required;
(f) The
amendment, change or modification of the Administration Agreement, except to
cure any ambiguity or to amend or supplement any provision in a manner or add
any provision that would not materially and adversely affect the interests
of
the Holder;
(g) The
appointment pursuant to the Indenture of a successor Note Registrar, Paying
Agent or Indenture Trustee or pursuant to this Agreement of a successor
Certificate Registrar or Certificate Paying Agent or the consent to the
assignment by the Note Registrar, Paying Agent, Indenture Trustee, Certificate
Registrar or Certificate Paying Agent of its obligations under the Indenture
or
this Agreement, as applicable;
(h) The
consent to the calling or waiver of any default of any Operative
Agreement;
(i) The
consent to the assignment by the Indenture Trustee of its obligations under
any
Operative Agreement;
18
(j) Except
as
provided in Article VIII hereof, the dissolution, termination or liquidation
of
the Trust in whole or in part;
(k) The
merger, conversion or consolidation of the Trust with or into any other entity,
or conveyance or transfer of all or substantially all of the Trust’s assets to
any other entity;
(l) The
incurrence, assumption or guaranty by the Trust of any indebtedness other than
as set forth in this Agreement;
(m) The
taking of any action which conflicts with any Operative Agreement or would
make
it impossible to carry on the ordinary business of the Trust or change the
Trust’s purpose and powers set forth in this Agreement;
(n) The
confession of a judgment against the Trust;
(o) The
possession of the Trust assets, or assignment of the Trust’s right to property,
for other than a Trust purpose; or
(p) The
lending of funds by the Trust to any entity.
In
addition, the Trust shall not commingle its assets with those of any other
entity. The Trust shall maintain its financial and accounting books and records
separate from those of any other entity. Except as expressly set forth herein,
the Trust shall pay its indebtedness, operating expenses and liabilities from
its own funds, and the Trust shall neither incur any indebtedness nor pay the
indebtedness, operating expenses and liabilities of any other entity nor
guarantee nor become obligated for the debts of any other person. Except as
expressly set forth herein, the Trust shall not engage in any dissolution,
liquidation, consolidation, merger or sale of assets. The Trust shall maintain
appropriate minutes or other records of all appropriate actions and shall
maintain its office and bank accounts separate from the offices and bank
accounts of the Depositor or any of its Affiliates. The Trust shall not engage
in any business activity in which it is not currently engaged other than as
contemplated by the Operative Agreements and related documentation. The Trust
shall not form, or cause to be formed, any subsidiaries and shall not own or
acquire any asset other than as contemplated by the Operative Agreements and
related documentation. Other than as contemplated by the Operative Agreements
and related documentation, the Trust shall not follow the directions or
instructions of the Depositor. The Trust shall hold itself out as a separate
entity from the Depositor, the Certificateholder, and any of their affiliates,
conduct its own business in its own name and use stationery, invoices, checks
or
other business forms under its own name and not that of any Certificateholder,
Affiliate, or other person. The Trust shall observe all formalities required
under the Delaware Trust Statute. The Trust shall not hold out its credit as
being available to satisfy the obligations of any other person or entity. The
Trust shall not acquire the obligations or securities of its Affiliates or
the
Seller. Other than as contemplated by the Operative Agreements and related
documentation, the Trust shall not pledge its assets for the benefit of any
other person or entity. The Trust shall correct any known misunderstanding
regarding its separate identity. The Trust shall not identify itself as a
division of any other person or entity. The Trust shall maintain adequate
capital in light of its contemplated business operations. The Trust shall
conduct business with its affiliates on an arm’s-length basis.
19
For
accounting purposes, the Trust shall be treated as an entity separate and
distinct from the Holder. The pricing and other material terms of all
transactions and agreements to which the Trust is a party shall be intrinsically
fair to all parties thereto. This Agreement is and shall be the only agreement
among the parties thereto with respect to the creation, operation and
termination of the Trust.
The
Owner
Trustee shall not have the power, except upon the written direction of the
Holder, and to the extent otherwise consistent with the Operative Agreements,
to
(i) remove or replace the Indenture Trustee, or (ii) institute a
bankruptcy against the Trust. So long as the Indenture remains in effect, to
the
extent permitted by applicable law, the Holder shall have no power to commence,
and shall not commence, any bankruptcy with respect to the Trust or direct
the
Owner Trustee to commence any bankruptcy with respect to the Trust.
(q) The
Owner
Trustee shall not have the power, except upon the written direction of the
Holder, to (i) remove the Securities Administrator under the Administration
Agreement pursuant to Section 9 thereof, (ii) appoint a successor Securities
Administrator pursuant to Section 9 of the Administration Agreement, or (iii)
except as expressly provided in the Indenture, to sell the Collateral after
the
termination of the Indenture. The Owner Trustee shall take the actions referred
to in the preceding sentence only upon written instructions signed and
authorized by the Holder.
Section
5.07. Action
by the Holder with Respect to Bankruptcy.
The
Owner
Trustee shall not have the power to commence or consent to a bankruptcy relating
to the Trust without the prior approval of the Holder and the delivery to the
Owner Trustee by the Holder of a certificate certifying that the Holder
reasonably believes that the Trust is insolvent. This paragraph shall survive
for one year and one day following termination of this Agreement. So long as
the
Indenture remains in effect, the Holder shall not have the power to institute,
and shall not institute, any bankruptcy with respect to the Trust or direct
the
Owner Trustee to take such action.
Section
5.08. Restrictions
on the Holder’s Power.
The
Holder shall not direct the Owner Trustee to take or to refrain from taking
any
action if such action or inaction would be contrary to any obligation of the
Trust or the Owner Trustee under this Agreement or any of the Operative
Agreements or would be contrary to Section 2.03 nor shall the Owner Trustee
be
obligated to follow any such direction, if given. The Holder shall not guarantee
any obligations of the Trust.
20
ARTICLE
VI
CONCERNING
THE OWNER TRUSTEE
Section
6.01. Acceptance
of Trusts and Duties.
The
Owner
Trustee accepts the trusts hereby created and agrees to perform the same but
only upon the terms of this Agreement. The Owner Trustee also agrees to disburse
all moneys actually received by it constituting part of the Trust Estate upon
the terms of this Agreement. The Bank shall not be answerable or accountable
hereunder or under any other Operative Agreements under any circumstances,
except (i) for its own willful misconduct, gross negligence or bad faith, (ii)
in the case of the inaccuracy of any representation or warranty contained in
Section 6.04, (iii) for liabilities arising from the failure by the Bank to
perform obligations expressly undertaken by it in the last sentence of Section
5.04, or (iv) for taxes, fees or other charges based on or measured by any
fees,
commissions or compensation received by the Bank in connection with any of
the
transactions contemplated by this Agreement, any other Operative Agreements
or
the Notes. In particular, but not by way of limitation:
(a) The
Bank
shall not be liable for any error of judgment made in good faith by a
Responsible Officer of the Owner Trustee;
(b) The
Bank
shall not be liable with respect to any action taken or omitted to be taken
by
the Owner Trustee in accordance with the instructions of the
Holder;
(c) No
provision of this Agreement shall require the Bank to expend or risk funds
or
otherwise incur any financial liability in the performance of any of the Owner
Trustee’s rights or powers hereunder or under any other Operative Agreements if
the Bank shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) Under
no
circumstance shall the Bank be liable for indebtedness evidenced by or arising
under any of the Operative Agreements, including the principal of and interest
on the Notes;
(e) The
Bank
shall not be liable with respect to any action taken or omitted to be taken
by
the Depositor, the Securities Administrator, the Master Servicer, the Indenture
Trustee, any Officer or the Certificate Paying Agent under this Agreement or
any
other Operative Agreement or otherwise and the Bank shall not be obligated
to
perform or monitor the performance of any obligations or duties under this
Agreement or the other Operative Agreements which are to be performed by the
Certificate Paying Agent under this Agreement, the Securities Administrator
under the Administration Agreement, the Indenture Trustee under the Indenture
or
by any other Person under any of the Operative Agreements; and
(f) The
Bank
shall not be responsible for or in respect of the recitals herein, the validity
or sufficiency of this Agreement or for the due execution hereof by the
Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Trust Estate or for or in respect of the validity or
sufficiency of the Operative Agreements, other than the certificate of
authentication on the Ownership Certificate, and the Bank shall in no event
assume or incur any liability, duty or obligation to any Noteholder, the
Depositor or to the Holder, other than as expressly provided for
herein.
Section
6.02. Furnishing
of Documents.
The
Owner
Trustee will furnish to the Securities Administrator (for distribution to the
Holder), promptly upon receipt of a written request therefor, duplicates or
copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner Trustee hereunder
or
under the Operative Agreements unless the Securities Administrator shall have
already received the same.
21
Section
6.03. Books
and Records.
The
Owner
Trustee shall keep or cause to be kept proper books of record and account of
all
the transactions under this Agreement, including a record of the name and
address of the Holder. The Owner Trustee shall be deemed to have complied with
this Section 6.03 by the appointment of the Securities Administrator and the
Certificate Paying Agent to perform the duties hereunder.
Section
6.04. Representations and Warranties.
(a) The
Bank
represents and warrants to the Depositor, for the benefit of the Holder, as
follows:
(i) the
Bank
is a banking corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has the power and authority to
execute, deliver and perform its obligations under this Agreement and (assuming
due authorization, execution and delivery of this Agreement by the Depositor
and
Securities Administrator), has the power and authority as Owner Trustee to
execute and deliver the Operative Agreements and to perform its obligations
thereunder and, assuming the due authorization, execution and delivery hereof
by
the other parties hereto, this Agreement constitutes a legal, valid and binding
obligation of the Bank or the Owner Trustee, as the case may be, enforceable
against the Bank or the Owner Trustee, as the case may be, in accordance with
its terms, except that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws relating
to creditors’ rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought;
(ii) the
Bank
has no reason to believe that anyone authorized to act on its behalf has offered
any interest in and to the Trust for sale to, or solicited any offer to acquire
any of the same from, anyone;
(iii) the
execution, delivery and performance by the Bank, either in its individual
capacity or as Owner Trustee, as the case may be, of the Operative Agreements
will not result in any violation of, or be in any conflict with, or constitute
a
default under any of the provisions of any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, lease, note or bond
purchase agreement, license, judgment, order or other agreement to which the
Bank is a party or by which it or any of its properties is bound;
(iv) the
execution and delivery by the Bank of this Agreement, and the performance of
its
duties as Owner Trustee hereunder, do not require the consent or approval of,
the giving of notice to, or the registration with, or the taking of any other
action with respect to, any governmental authority or agency of the State of
Delaware (except as may be required by the Delaware Trust Statute);
and
(v) there
are
no pending or, to the best of its knowledge, threatened actions or proceedings
against the Bank before any court, administrative agency or tribunal which,
if
determined adversely to it, would materially and adversely affect its ability,
either in its individual capacity or as Owner Trustee, as the case may be,
to
perform its obligations under this Agreement or the Operative
Agreements.
22
(b) Xxxxx
Fargo Bank, N.A., as Securities Administrator, hereby represents and warrants
to
the Depositor, for the benefit of the Holder, that:
(i) it
is a
national banking association duly organized and validly existing in good
standing under the laws of the United States, and has the power and authority
to
execute, deliver and perform its obligations under this Agreement and, assuming
the due authorization, execution and delivery hereof by the other parties
hereto, this Agreement constitutes a legal, valid and binding obligation of
the
Securities Administrator, enforceable against the Securities Administrator
in
accordance with its terms, except that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors’ rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(ii) it
has
taken all action necessary to authorize the execution and delivery by it of
this
Agreement, and this Agreement will be executed and delivered by one of its
officers who is duly authorized to execute and deliver this Agreement on its
behalf; and
(iii) neither
the execution nor the delivery by it of this Agreement nor the consummation
by
it of the transactions contemplated hereby nor compliance by it with any of
the
terms or provisions hereof will contravene any federal, governmental rule or
regulation governing the banking or trust powers of the Securities Administrator
or any judgment or order binding on it, or constitute any default under its
charter documents or by-laws or any indenture, mortgage, contract, agreement
or
instrument to which it is a party or by which any of its properties may be
bound.
Section
6.05. Reliance; Advice of Counsel.
(a) Except
as
provided in Section 6.01, the Owner Trustee shall incur no liability to anyone
in acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper believed
by
it to be genuine and believed by it to be signed by the proper party or parties.
The Owner Trustee may accept a certified copy of a resolution of the board
of
directors or other governing body of any corporate or partnership entity as
conclusive evidence that such resolution has been duly adopted by such body
and
that the same is in full force and effect. As to any fact or matter the manner
of ascertainment of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president (or the general partner, in the case of a
partnership) and by the treasurer or any assistant treasurer or the secretary
or
any assistant secretary of the relevant party, as to such fact or matter, and
such certificate shall constitute full protection to the Owner Trustee for
any
action taken or omitted to be taken by it in good faith in reliance
thereon.
23
(b) In
its
exercise or administration of the trusts and powers hereunder, including its
obligations under Section 5.02(b), and in the performance of its duties and
obligations under this Agreement or the other Operative Agreements, the Owner
Trustee may employ agents and attorneys and enter into agreements (including
the
Administration Agreement) with any of them, and the Owner Trustee shall not
be
answerable for the default or misconduct of any such agents or attorneys if
such
agents or attorneys shall have been selected by the Owner Trustee with
reasonable care. If, and to the extent, the Depositor shall have failed to
reimburse the Owner Trustee for all reasonable expenses and indemnities incurred
pursuant to this Section 6.05(b), as provided in Sections 7.01 and 7.02, the
Owner Trustee may seek reimbursement therefor from the Trust
Estate.
(c) In
the
administration of the trusts and performance of its duties hereunder, the Owner
Trustee may consult with counsel, accountants and other skilled Persons to
be
selected and employed by it, and the Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
reasonable advice or opinion of any such counsel, accountants or other skilled
Persons. If, and to the extent, the Depositor shall have failed to reimburse
the
Owner Trustee for all reasonable expenses and indemnities incurred pursuant
to
this Section 6.05(c), as provided in Sections 7.01 and 7.02, the Owner Trustee
may seek reimbursement therefor from the Trust Estate.
Section
6.06. Not
Acting in Individual Capacity.
Except
as
provided in this Article VI, in accepting the trusts hereby created the Owner
Trustee acts solely as trustee hereunder and not in its individual capacity,
and
all persons having any claim against the Owner Trustee by reason of the
transactions contemplated by the Operative Agreements shall look only to the
Trust Estate for payment or satisfaction thereof.
Section
6.07. Owner
Trustee Not Liable for Ownership Certificate or Collateral.
The recitals contained herein and in the Ownership Certificate (other than
the
signature and countersignature of the Owner Trustee on the Ownership
Certificate) shall be taken as the statements of the Depositor, and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner Trustee
makes no representations as to the validity or sufficiency of this Agreement,
of
any Operative Agreement or of the Ownership Certificate (other than the
signature and countersignature of the Owner Trustee on the Ownership
Certificate) or the Notes, or of any Collateral or related documents. The Owner
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Collateral, or
the
perfection and priority of any security interest created by any Collateral
or
the maintenance of any such perfection and priority, or for or with respect
to
the sufficiency of the Trust Estate or its ability to generate the payments
to
be distributed to Certificateholders under this Agreement or the Noteholders
under the Indenture, including, without limitation: the existence, condition
and
ownership of any Collateral; the existence and enforceability of any insurance
thereon; the existence and contents of any Collateral on any computer or other
record thereof; the validity of the assignment of any Collateral to the Trust
or
of any intervening assignment; the completeness of any Collateral; the
performance or enforcement of any Collateral; the compliance by the Depositor
with any warranty or representation made under any Operative Agreements or
in
any related document or the accuracy of any such warranty or representation
or
any action of the Securities Administrator or the Indenture Trustee taken in
the
name of the Owner Trustee.
Section
6.08. Owner
Trustee May Own Ownership Certificate and Notes.
The
Owner
Trustee in its individual capacity may become the Holder (provided
that if
the Owner Trustee should acquire the Ownership Certificate, it shall be a REIT,
a Qualified REIT Subsidiary or a Disregarded Entity) or the owner or pledgee
of
Notes and may deal with the Depositor, the Securities Administrator and the
Indenture Trustee in banking transactions with the same rights as it would
have
if it were not Owner Trustee.
24
Section
6.09. Licenses.
The
Depositor shall cause the Trust to use its best efforts to obtain and maintain
the effectiveness of any licenses required in connection with this Agreement
and
the other Operative Agreements and the transactions contemplated hereby and
thereby until such time as the Trust shall terminate in accordance with the
terms hereof. It shall be the duty of the Owner Trustee to cooperate with the
Depositor with respect to such matters.
Section
6.10. Doing
Business in Other Jurisdictions.
Notwithstanding
anything contained herein to the contrary, neither the Bank nor the Owner
Trustee shall be required to take any action in any jurisdiction other than
in
the State of Delaware if the taking of such action will (i) require the consent
or approval or authorization or order of or the giving of notice to, or the
registration with or the taking of any other action in respect of, any state
or
other governmental authority or agency of any jurisdiction other than the State
of Delaware; (ii) result in any fee, tax or other governmental charge under
the
laws of any jurisdiction or any political subdivisions thereof in existence
on
the date hereof other than the State of Delaware becoming payable by the Bank
or
the Owner Trustee; or (iii) subject the Bank or the Owner Trustee to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes
of
action arising from acts unrelated to the consummation of the transactions
by
the Bank or the Owner Trustee, as the case may be, contemplated hereby. The
Owner Trustee shall be entitled to obtain advice of counsel (which advice shall
be an expense of the Trust) to determine whether any action required to be
taken
pursuant to this Agreement results in the consequences described in clauses
(i),
(ii) and (iii) of the preceding sentence. In the event that such counsel advises
the Owner Trustee that such action will result in such consequences, the Owner
Trustee will appoint a co-trustee pursuant to Section 9.05 hereof to proceed
with such action.
Section
6.11. Reporting
Requirements of the Commission.
(a) The
Depositor, the Securities Administrator and the Owner Trustee acknowledge and
agree that the purpose of this Section 6.11 is to facilitate compliance by
the
Depositor with the provisions of Regulation AB. Neither the Depositor nor the
Securities Administrator shall exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than the Depositor’s compliance with Regulation AB.
The Owner Trustee agrees to cooperate in good faith with any reasonable request
made by the Depositor or the Securities Administrator for information regarding
the Owner Trustee which is required in order to enable the Depositor to comply
with the provisions of Regulation AB, including, without limitation, Items
1109(a), 1109(b), 1117 and 1119(a) and (b) of Regulation AB as it relates to
the
Owner Trustee or to the Owner Trustee’s obligations under this Trust
Agreement.
25
(b) For
so
long as the Depositor is required to file reports with respect to the Notes
under Regulation AB, the Owner Trustee shall, as promptly as practicable, notify
the Depositor and the Securities Administrator, in writing, of: (i) the
commencement of or, if applicable, the termination of, any and all legal
proceedings pending against the Owner Trustee or any and all proceedings of
which any property of the Owner Trustee is the subject, that is material to
Securityholders; and (ii) any such proceedings known to be contemplated by
governmental authorities. The Owner Trustee shall also notify the Depositor
and
the Securities Administrator in writing, as promptly as practicable following
notice to or discovery by a Responsible Officer of the Owner Trustee of any
material changes to proceedings described in the preceding sentence. In
addition, the Owner Trustee shall furnish to the Depositor and the Securities
Administrator, in writing, the necessary disclosure regarding the Owner Trustee
describing such proceedings required to be disclosed under Item 1117 of
Regulation AB, for inclusion in reports filed by or on behalf of the Depositor
with the Commission.
For
so
long as the Notes are outstanding and the Depositor is required to report under
Regulation AB with respect to the Notes, the Owner Trustee shall, no later
than
January 31st
of each
calendar year, provide to the Depositor and the Securities Administrator such
information regarding the Owner Trustee as is required for the purpose of
compliance with Items 1109(a), 1109(b), 1119(a) and 1119(b) of Regulation AB;
and (ii) as promptly as practicable following notice to or discovery by a
Responsible Officer of the Owner Trustee of any changes to such information,
provide to the Depositor and the Securities Administrator, in writing, such
updated information. Such information shall include, at a minimum:
(A) the
Owner
Trustee’s name and form of organization;
(B) a
description of the extent to which the Owner Trustee has had prior experience
serving as a trustee for asset-backed securities transactions involving mortgage
backed securities; and
(C) a
description of any affiliation between the Owner Trustee and any of the parties
identified in Exhibit F.
In
addition, the Owner Trustee shall provide a description of whether there is,
and
if so the general character of, any business relationship, agreement,
arrangement, transaction or understanding between the Owner Trustee and any
of
the parties identified in Exhibit F that is entered into outside the ordinary
course of business or is on terms other than would be obtained in an arm’s
length transaction with an unrelated third party, apart from this transaction,
that currently exists or that existed during the past two years and that is
material to an investor’s understanding of the Notes.
With
respect to the information required to be provided under this Section 6.11(b),
the Owner Trustee shall not be required to provide such information in the
event
that there has been no change to the information previously provided by the
Owner Trustee to the Depositor. In connection with each report on Form 10-K
with
respect to the Notes and each report on Form 10-D with respect to the Notes
filed by or on behalf of the Depositor, the Owner Trustee shall be deemed to
represent and warrant, as of March 15th
for the
report on Form 10-K and as of the related Payment Date for the report on Form
10-D, that any information previously provided by the Owner Trustee under this
Section 6.11 is materially correct and does not contain any material omissions
unless the Owner Trustee has provided an update to such
information.
26
ARTICLE
VII
INDEMNIFICATION
AND COMPENSATION
Section
7.01. Trust
Expenses.
The
Owner
Trustee shall be reimbursed from amounts on deposit in the Collection Account
in
accordance with Section 5.07(viii) of the Transfer and Servicing Agreement
for
the reasonable expenses of the Owner Trustee hereunder, including, without
limitation, the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may employ
in
connection with the exercise and performance of its rights and duties under
the
Operative Agreements.
Section
7.02. Indemnification.
(a) The
Bank
shall be entitled to be indemnified and held harmless from and against any
and
all liabilities, obligations, indemnity obligations, losses (excluding loss
of
anticipated profits), damages, claims, actions, suits, judgments, out-of-pocket
costs, expenses and disbursements (including legal and consultants’ fees and
expenses) and taxes of any kind and nature whatsoever (collectively, the
“Liabilities”) that may be imposed on, incurred by or asserted at any time
against the Bank or the Owner Trustee in any way relating to or arising out
of
the Trust Estate, any of the properties included therein, the administration
of
the Trust Estate or any action or inaction of the Owner Trustee hereunder or
under the Operative Agreements, except to the extent that such Liabilities
arise
out of or result from (i) the Owner Trustee’s own willful misconduct, fraud or
gross negligence, (ii) the inaccuracy of any of the Owner Trustee’s
representations or warranties contained in Section 6.04 of this Agreement,
(iii)
the Owner Trustee’s failure to perform obligations expressly undertaken by it in
this Agreement; (iv) taxes based on or measured by any fees, commissions or
compensation received by the Owner Trustee for acting as such in connection
with
any of the transactions contemplated by this Agreement or any other Operative
Agreement and (v) the Owner Trustee’s failure to use due care to receive, manage
and disburse moneys actually received by it in accordance with the terms hereof.
The indemnities contained in this Section 7.02(a) shall survive the termination
of this Agreement and the removal or resignation of the Owner Trustee
hereunder.
(b) Any
fees,
reimbursements and indemnities to the Bank or the Owner Trustee pursuant to
this
Section 7.02 shall be payable: first,
out of
amounts on deposit in the Certificate Distribution Account prior to payments
on
the Ownership Certificate; second,
to the
extent not paid pursuant to clause first within 60 days of first being incurred,
by the Certificateholder; and third,
to the
extent not paid pursuant to clause first and second within 60 days of first
being incurred, by HomeBanc Corp. If any amounts shall be on deposit in the
Certificate Distribution Account subsequent to the payment of any reimbursement
or indemnification amounts pursuant to clauses second or third of the preceding
sentence, then reimbursement for such payment shall be payable out of amounts
on
deposit in the Certificate Distribution Account prior to payments on the
Ownership Certificate on any Payment Date first to HomeBanc Corp. and second
to
the Certificateholder who made payment pursuant to clause second of the
preceding sentence, in each case to the extent of the payment made by it to
the
Owner Trustee pursuant to the preceding sentence.
27
The
indemnities contained in this Section 7.02 shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. In the
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section, the Owner Trustee’s choice of legal counsel shall be
subject to the approval of HomeBanc Corp., which approval shall not be
unreasonably withheld.
Section
7.03. Compensation.
The
Bank
shall receive as compensation for its services hereunder from the Master
Servicer an annual fee pursuant to the terms of a separate fee agreement between
the Master Servicer and the Owner Trustee.
Section
7.04. Lien
on Trust Estate.
The
Bank
shall have a lien on the Trust Estate for any compensation or indemnity due
hereunder, such lien to be subject only to prior liens of the Indenture. The
Bank shall not bring any proceedings to foreclose on such lien if and to the
extent the Trust Estate is subject to the lien of the Indenture. Any amount
paid
to the Owner Trustee pursuant to this Article VII shall be deemed not to be
part
of the Trust Estate immediately after such payment.
ARTICLE
VIII
TERMINATION
OF AGREEMENT
Section
8.01. Termination of Agreement.
(a) This
Agreement (other than Article VII) shall terminate and the trusts created hereby
shall dissolve and terminate and the Trust Estate shall, subject to the
Indenture and Sections 4.01 and 7.04 and Section 3808 of the Delaware Trust
Statute, be distributed to the Holder, and this Agreement shall be of no further
force or effect, upon the earlier of (i) the full payment of principal and
interest due on all Classes of the Notes; and (ii) the sale or other final
disposition by the Indenture Trustee or the Owner Trustee, as the case may
be,
of all the Trust Estate and the final distribution by the Securities
Administrator or the Owner Trustee, as the case may be, of all moneys or other
property or proceeds of the Trust Estate in accordance with the terms of the
Indenture, the Transfer and Servicing Agreement and Section 4.02. The
bankruptcy, liquidation or dissolution of the Holder shall not operate to
terminate this Agreement, nor entitle such Holder’s legal representatives to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of the Trust Estate, nor otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except
as
provided in Section 8.01(a), neither the Depositor nor the Holder shall be
entitled to revoke or terminate the Trust established hereunder.
(c) Notice
of
any termination of the Trust, specifying the Payment Date upon which the Holder
shall surrender its Ownership Certificate to the Certificate Paying Agent for
payment of the final distribution and cancellation, shall be given by the
Certificate Paying Agent by letter to the Holder and the Rating Agencies mailed
within five Business Days of receipt of notice of the final payment on the
Notes
pursuant to the Transfer and Servicing Agreement, stating (i) the Payment Date
upon or with respect to which final payment of the Ownership Certificate shall
be made upon presentation and surrender of the Ownership Certificate at the
office of the Certificate Paying Agent therein designated, (ii) the amount
of
any such final payment and (iii) that the Record Date otherwise applicable
to
such Payment Date is not applicable, payments being made only upon presentation
and surrender of the Ownership Certificate at the office of the Certificate
Paying Agent therein specified. The Certificate Paying Agent shall give such
notice to the Owner Trustee and the Certificate Registrar at the time such
notice is given to the Holder. Upon presentation and surrender of the Ownership
Certificate, the Certificate Paying Agent shall cause to be distributed to
the
Holder amounts distributable on such Payment Date pursuant to Section 4.1 of
the
Transfer and Servicing Agreement.
28
(d) Upon
the
winding up of the Trust and its termination, the Owner Trustee shall upon the
written request of the Depositor cause the Certificate of Trust to be cancelled
by filing a certificate of cancellation with the Secretary of State in
accordance with the provisions of Section 3810 of the Delaware Trust
Statute.
ARTICLE
IX
SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section
9.01. Eligibility
Requirements for Owner Trustee.
The
Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Delaware Trust Statute; authorized to exercise corporate powers;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or state authorities; and having (or
having a parent which has) a short-term debt rating of at least “A-1” or the
equivalent by, or which is otherwise acceptable to, the Rating Agencies. If
such
corporation shall publish reports of condition at least annually, pursuant
to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions
of
this Section, the Owner Trustee shall resign immediately in the manner and
with
the effect specified in Section 9.02.
Section
9.02. Resignation
or Removal of Owner Trustee.
The
Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving 30 days’ prior written notice thereof to the Depositor, the Holder and
the Indenture Trustee. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and one copy to the successor Owner Trustee. If no successor
Owner
Trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If
at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 9.01 and shall fail to resign after written request
therefor by the Depositor, or if at any time the Owner Trustee shall be legally
unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of
the
Owner Trustee or of its property shall be appointed, or any public officer
shall
take charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
may remove the Owner Trustee. If the Depositor shall remove the Owner Trustee
under the authority of the immediately preceding sentence, the Depositor shall
promptly appoint a successor Owner Trustee by written instrument in duplicate,
one copy of which instrument shall be delivered to the outgoing Owner Trustee
so
removed and one copy to the successor Owner Trustee and payment of all fees
owed
to the outgoing Owner Trustee.
29
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 Securities Administrator shall provide notice of
such resignation or removal of the Owner Trustee to the Rating
Agencies.
Section
9.03. Successor
Owner Trustee.
Any successor Owner Trustee appointed pursuant to Section 9.02 shall execute,
acknowledge and deliver to the Depositor and the Securities Administrator and
to
its predecessor Owner Trustee an instrument accepting such appointment under
this Agreement, and thereupon the resignation or removal of the predecessor
Owner Trustee shall become effective and such successor Owner Trustee without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties, and obligations of its predecessor under this Agreement,
with like effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Agreement; and the Depositor, the Securities Administrator and the predecessor
Owner Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties,
and
obligations.
No
successor Owner Trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor Owner Trustee shall be
eligible pursuant to Section 9.01.
Upon
acceptance of appointment by a successor Owner Trustee pursuant to this Section,
the Securities Administrator shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Securities Administrator fails to mail such notice
within 10 days after acceptance of appointment by the successor Owner Trustee,
the successor Owner Trustee shall cause such notice to be mailed at the expense
of the Securities Administrator.
Section
9.04. Merger
or Consolidation of Owner Trustee.
Any
Person into which the Owner Trustee may be merged or converted or with which
it
may be consolidated or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder,
provided
such
Person shall be eligible pursuant to Section 9.01, without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
30
Section
9.05. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust Estate
or any Collateral may at the time be located, and for the purpose of performing
certain duties and obligations of the Owner Trustee with respect to the Trust
and the Certificates under the Transfer and Servicing Agreement, the Owner
Trustee shall have the power and shall execute and deliver all instruments
to
appoint one or more Persons approved by the Owner Trustee to act as co-trustee,
jointly with the Owner Trustee, or separate trustee or separate trustees, of
all
or any part of the Trust Estate, and to vest in such Person, in such capacity,
such title to the Trust, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Owner Trustee may consider necessary or desirable. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 9.01 and no notice of
the
appointment of any co-trustee or separate trustee shall be required pursuant
to
Section 9.03.
The
Owner
Trustee hereby appoints the Securities Administrator for the purpose of
establishing and maintaining the Certificate Distribution Account and making
the
distributions therefrom to the Persons entitled thereto pursuant to Section
6.02
of the Transfer and Servicing Agreement.
Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provision and
conditions:
(a) all
rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Owner Trustee joining in such act), except to the extent that under any law
of
any jurisdiction in which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties, and obligations (including the
holding of title to the Trust or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Owner Trustee;
(b) no
trustee under this Agreement shall be personally liable by reason of any act
or
omission of any other trustee under this Agreement; and
(c) the
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 the separate trustees and co-trustees, as if given to each
of
them. Every instrument appointing any separate trustee or co-trustee, other
than
this Agreement, shall refer to this Agreement and to the conditions of this
Article. Each separate trustee and co-trustee, upon its acceptance of
appointment, shall be vested with the estates specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement, specifically
including every provision of this Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the Owner Trustee.
Each
such instrument shall be filed with the Owner Trustee and a copy thereof given
to the Securities Administrator.
31
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee as
its
Agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a
new
or successor trustee.
ARTICLE
X
MISCELLANEOUS
Section
10.01. Supplements
and Amendments. This
Agreement may be amended by the Depositor, the Securities Administrator and
the
Owner Trustee, with the consent of the Holder and with prior written notice
to
the Rating Agencies, but without the consent of any of the Noteholders or the
Indenture Trustee, to (a) cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement
or
of modifying in any manner the rights of the Noteholders or the Holder or (b)
to
comply with Regulation AB under Section 6.11 hereof; provided,
however, that
such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in
any
material respect the interests of any Noteholder or the Holder or adversely
affect the tax status of the Trust. An amendment shall not be deemed to
adversely affect in any material respect the interests of any Noteholder or
the
Holder and no opinion referred to in the preceding proviso shall be required
to
be delivered if the Person requesting the amendment obtains a letter from each
Rating Agencies stating that the amendment would not result in the downgrading
or withdrawal of the respective ratings then assigned to each Class of Notes.
Notwithstanding the preceding sentence, an opinion shall be required with
respect to tax matters as set forth in this paragraph. Notwithstanding the
foregoing, neither an Opinion of Counsel nor any letters from any Rating Agency
referred to above shall be required if such amendment is made pursuant to (b)
above.
This
Agreement may also be amended from time to time by the Depositor, the Securities
Administrator and the Owner Trustee, with the prior written consent of the
Rating Agencies and with the prior written consent of the Indenture Trustee,
the
Holders (as defined in the Indenture) of Notes evidencing more than
662/3%
of the
Outstanding Balance of the Notes, and the consent of the Holder, for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the
provisions of this Agreement or of modifying in any manner the rights of the
Holder; provided,
however,
that no
such amendment shall, as evidenced by an Opinion of Counsel, adversely affect
the tax status of the Trust; and provided,
further,
that no
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on the Collateral
or
payments that shall be required to be made for the benefit of the Noteholders
or
the Holder or (b) reduce the aforesaid percentage of the Outstanding
Balance of the Notes required to consent to or to waive the requirement for
the
Holder to consent to any such amendment, in either case of clause (a) or
(b) without the consent of the holders of all the outstanding Notes and the
Holder.
Notwithstanding
the foregoing, no provision of Sections 2.03 or 5.06 hereof may be amended
in
any manner unless (i) 100% of the Outstanding Balance of the Noteholders have
consented in writing thereto, (ii) the Rating Agencies have consent in writing
thereto or (iii) the Notes have been paid in full and the Indenture has been
discharged.
32
Promptly
after the execution of any such amendment or consent, the Owner Trustee shall
furnish written notification of the substance of such amendment or consent
to
the Holder, the Indenture Trustee and the Rating Agencies.
It
shall
not be necessary for the consent of the Holder, the Noteholders or the Indenture
Trustee pursuant to this Section 10.01 to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of the Holder provided for in this Agreement or in any other
Operative Agreement) and of evidencing the authorization of the execution
thereof by the Holder shall be subject to such reasonable requirements as the
Owner Trustee may prescribe.
Promptly
after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of
State.
Prior
to
the execution of any amendment to this Agreement or the Certificate of Trust,
the Owner Trustee shall be entitled to receive and rely upon an Opinion of
Counsel, at the expense of the Trust, stating that the execution of such
amendment is authorized or permitted by this Agreement. Neither the Owner
Trustee nor the Securities Administrator shall be obligated to enter into any
such amendment which affects the Owner Trustee’s or Securities Administrator’s
own rights, duties or immunities under this Agreement or otherwise.
Section
10.02. No
Legal Title to Trust Estate in Holder. The
Holder shall not have legal title to any part of the Trust Estate and shall
only
be entitled to receive distributions pursuant to Section 4.02 once all amounts
then owing with respect to the Notes have been paid in accordance with the
Indenture. No transfer, by operation of law of any right, title and interest
of
the Holder in and to its undivided beneficial interest in the Trust Estate
or
hereunder shall operate to terminate this Agreement or the trusts hereunder
or
entitle any successor transferee to an accounting or to the transfer to it
of
legal title to any part of the Trust Estate.
Section
10.03. Pledge
of Collateral by Owner Trustee is Binding. The
pledge of the Collateral to the Indenture Trustee by the Trust made under the
Indenture and pursuant to the terms of this Agreement shall bind the Holder
and
shall be effective to transfer or convey the rights of the Trust and the Holder
in and to such Collateral to the extent set forth in the Indenture. No purchaser
or other grantee shall be required to inquire as to the authorization,
necessity, expediency or regularity of such pledge or as to the application
of
any proceeds with respect thereto by the Owner Trustee.
Section
10.04. Limitations
on Rights of Others. Nothing
in this Agreement, whether express or implied (except for Section 7.04), shall
be construed to give to any Person other than the Owner Trustee and the Holder
any legal or equitable right in the Trust Estate or under or in respect of
this
Agreement or any covenants, conditions or provisions contained
herein.
Section
10.05. Notices. Unless
otherwise expressly specified or permitted by the terms hereof, all notices
shall be in writing and delivered by hand, by courier or mailed by certified
mail, postage prepaid, (a) if to the Owner Trustee or the Trust, addressed
to it
at the Corporate Trust Office of the Owner Trustee or to such other address
as
the Owner Trustee may have set forth in a written notice to the Holder and
the
Depositor addressed to it at the address set forth for such Certificateholders
in the Certificate Register; (b) if to the Securities Administrator, addressed
to it at the Corporate Trust Office of the Securities Administrator; and (c)
if
to the Certificate Registrar, addressed to it at the Corporate Trust office
of
the Certificate Registrar; and (d) if to the Depositor, addressed to it at
HMB Acceptance Corp., 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000,
Attention: HomeBanc 2006-2. Whenever any notice in writing is required to be
given by the Owner Trustee or the Securities Administrator, such notice shall
be
deemed given and such requirement satisfied if such notice is mailed by
certified mail, postage prepaid, addressed as provided above.
33
Section
10.06. Severability. Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Section
10.07. Separate
Counterparts. This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
Section
10.08. Successors
and Assigns. All
representations, warranties, covenants and agreements contained herein shall
be
binding upon, and inure to the benefit of, the Owner Trustee and its successors
and assigns and the Depositor and the Holder and its respective successors,
all
as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by the Holder shall bind the successors of such
Holder.
Section
10.09. Headings. The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section
10.10. Governing
Law. THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO THE CONFLICT OF
LAWS PROVISIONS THEREOF, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
10.11. No Petition.
(a) The
Owner
Trustee and the Securities Administrator, by entering into this Agreement,
the
Holder, by accepting the Ownership Certificate, and the Indenture Trustee and
each Noteholder, by accepting the benefits of this Agreement, hereby covenant
and agree that they will not at any time institute against the Depositor or
the
Trust, or join in any institution against the Depositor or the Trust of, any
bankruptcy under any United States federal or state bankruptcy or similar law
in
connection with any obligations relating to the Ownership Certificate, the
Notes, this Agreement or any of the other Operative Agreements.
34
(b) The
Depositor shall not be liable for the default or misconduct of the Securities
Administrator, the Owner Trustee, the Indenture Trustee or the Certificate
Paying Agent under any of the Operative Agreements or otherwise and the
Depositor shall have no obligation or liability to perform the obligations
of
the Trust under this Agreement or the Operative Agreements that are required
to
be performed by the Securities Administrator under the Administration Agreement
or the Indenture Trustee under the Indenture.
Section
10.12. No
Recourse. The
Holder by accepting an Ownership Certificate acknowledges that such Certificate
represents a beneficial interest in the Trust only and does not represent an
interest in or an obligation of the Depositor, the Securities Administrator,
the
Owner Trustee, any co-trustee, the Bank or any Affiliate thereof (other than
the
Trust) and no recourse may be had against such parties or their assets, except
as may be expressly set forth or contemplated in this Agreement, the Ownership
Certificate or the other Operative Agreements.
ARTICLE
XI
OFFICERS
Section
11.01. Appointment
of Officers. The
Trust
may have one or more Officers who are hereby empowered to take and are
responsible for performing all ministerial duties on behalf of the Trust
pursuant to this Agreement and the other Operative Agreements, including,
without limitation, the execution of the Officers’ Certificate (as defined in
the Indenture), the Trust Order (as defined in the Indenture), the Trust Request
(as defined in the Indenture), the annual compliance report required under
Section 3.09 of the Indenture, and any annual reports, documents and other
reports which the Trust is required to file with the Securities and Exchange
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended. Each of the Chairman of the Board, the Chief Executive
Officer, the President, each Senior Vice President and each Vice President
of
the Depositor is hereby appointed as an Officer of the Trust. The Depositor
shall promptly deliver to the Owner Trustee and the Indenture Trustee a list
of
its officers who shall become the Officers of the Trust pursuant to this Section
11.01.
Section
11.02. Officers
to Provide Information to the Owner Trustee. It
shall
be the duty of each Officer to keep the Owner Trustee reasonably and promptly
informed as to material events relating to the Trust, including, without
limitation, all claims pending or threatened against the Trust, the purchase
and
sale of any material portion of the Trust Estate and the execution by such
Officer on behalf of the Trust of any material agreements or
instruments.
35
IN
WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be
duly
executed by their respective officers hereunto duly authorized, as of the day
and year first above written.
HMB
ACCEPTANCE CORP., as Depositor
|
||
|
|
|
By: | /s/ Xxxxx X. Xxxxxxx | |
Name:
Xxxxx
X. Xxxxxxx
Title:
Executive Vice President
|
WILMINGTON
TRUST COMPANY,
not
in its individual capacity but solely as
Owner
Trustee
|
||
|
|
|
By: | /s/ Xxxxxxx Xxxxx | |
Name:
Xxxxxxx Xxxxx
Title:
Financial Services Officer
|
XXXXX
FARGO BANK, N.A.,
not
in its individual capacity but solely as Securities
Administrator
|
||
|
|
|
By: | /s/ Xxxxxx Xxxxxx | |
Name:
Xxxxxx Xxxxxx
Title:
Vice President
|
Acknowledged
and Agreed, solely
for
purposes of Section 7.02:
HOMEBANC
CORP.
By: /s/ Xxxxx X. Xxxxxxx | |||
Name:
Xxxxx
X. Xxxxxxx
Title:
Executive Vice President
|
EXHIBIT
A
[FORM
OF
OWNERSHIP CERTIFICATE]
[Face]
THIS
OWNERSHIP CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY
STATE. THIS OWNERSHIP CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR
SOLD
OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE ACT, IN A
TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT
TO
RULE 144A. NO PERSON IS OBLIGATED TO REGISTER THIS OWNERSHIP CERTIFICATE UNDER
THE ACT OR ANY STATE SECURITIES LAWS.
THIS
OWNERSHIP CERTIFICATE MAY NOT BE ACQUIRED BY A TRANSFEREE FOR, OR ON BEHALF
OF,
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”) OR ANY SUBSTANTIALLY SIMILAR LAW, OR ANY ENTITY DEEMED TO HOLD THE PLAN
ASSETS OF THE FOREGOING. EACH INVESTOR IN THIS CERTIFICATE WILL BE DEEMED TO
MAKE THE FOREGOING REPRESENTATIONS AND WILL FURTHER BE DEEMED TO REPRESENT,
WARRANT AND COVENANT THAT IT WILL NOT SELL, PLEDGE OR OTHERWISE TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
THIS
OWNERSHIP CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE, THE SECURITIES
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY
PROVIDED IN THE TRUST AGREEMENT OR THE OTHER OPERATIVE AGREEMENTS.
THIS
OWNERSHIP CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT AS DESCRIBED IN THE
TRANSFER AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS OWNERSHIP CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN AFFIDAVIT FROM THE PROPOSED TRANSFEREE IN
WHICH
THE PROPOSED TRANSFEREE DECLARES THAT IT IS A REAL ESTATE INVESTMENT TRUST
(A
“REIT”) WITHIN THE MEANING OF SECTIONS 856 AND 857 OF THE CODE, A QUALIFIED REIT
SUBSIDIARY WITHIN THE MEANING OF SECTION 856(i) OF THE CODE OR AN ENTITY THAT
IS
BOTH (A) SOLELY OWNED BY A REIT OR QUALIFIED REIT SUBSIDIARY AND (B) DISREGARDED
AS AN ENTITY SEPARATE FROM ITS OWNER WITHIN THE MEANING OF SECTION
301.7701-2(C)(2) OF THE TREASURY REGULATIONS (A “DISREGARDED ENTITY”). MOREOVER,
ANY ATTEMPTED TRANSFER OF THIS OWNERSHIP CERTIFICATE TO A PERSON OTHER THAN
A
REIT, A QUALIFIED REIT SUBSIDIARY OR A DISREGARDED ENTITY SHALL BE
VOID
AB
INITIO
AND THE
PURPORTED TRANSFEREE SHALL ACQUIRE NO RIGHTS IN THIS OWNERSHIP
CERTIFICATE.
A-1
Certificate
No. _________ Percentage
Interest: 100%
First
Payment Date: December 26, 2006
Evidencing
a fractional undivided equity interest in the Trust Estate, the property of
which consists primarily of the Collateral in HomeBanc Mortgage Trust 2006-2
(the “Trust” or the “Issuer”), a Delaware statutory trust formed by HMB
Acceptance Corp., a Delaware corporation, as depositor (the “Depositor”),
pursuant to the Agreement referred to below.
This
certifies that [insert name of Holder] is the registered owner of the Percentage
Interest referred to above.
The
Trust
was created pursuant to a trust agreement dated as of November 1, 2006 (as
amended and supplemented from time to time, the “Agreement” or “Trust
Agreement”), among the Depositor, Wilmington Trust Company, as owner trustee
(the “Owner Trustee,” which term includes any successor entity under the
Agreement), and Xxxxx Fargo Bank, N.A., as securities administrator (in such
capacity, the “Securities Administrator”), a summary of certain of the pertinent
provisions of which is set forth hereinafter. This Ownership Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Ownership Certificate by virtue
of the acceptance hereof assents and by which such Holder is bound, and the
transfer and servicing agreement dated as of November 1, 2006 (as amended and
supplemented from time to time, the “Transfer and Servicing Agreement”), among
the Issuer, the Depositor, HomeBanc Corp., as seller and servicer, Xxxxx Fargo
Bank, N.A., as master servicer and Securities Administrator, and U.S. Bank
National Association, as indenture trustee (the “Indenture Trustee”).
Distributions on this Ownership Certificate shall be made by the Securities
Administrator, in its capacity as Certificate Paying Agent under the
Agreement.
This
Ownership Certificate is issued under the Agreement to which reference is hereby
made for a statement of the respective rights thereunder of the Depositor,
the
Owner Trustee and the Holder of the Ownership Certificate and the terms upon
which the Ownership Certificate is executed and delivered. The Trust Estate
consists of the Collateral in the HomeBanc Mortgage Trust 2006-2. To the extent
not otherwise defined herein, capitalized terms used herein have the meanings
assigned to such terms in the Agreement or the Transfer and Servicing Agreement.
The rights of the Holder are subordinated to the rights of the Noteholders,
as
set forth in the indenture dated as of November 1, 2006 (as amended and
supplemented from time to time, the “Indenture”), among the Issuer, the
Indenture Trustee and the Securities Administrator.
There
will be distributed on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the next Business Day (each, a “Payment Date”), commencing
in December 2006,
to
the Holder at the close of business on the last Business Day of the month
preceding the month of such Payment Date (the “Record Date”), the amount to be
distributed to the Holder on such Payment Date, all as provided in the Transfer
and Servicing Agreement and the Trust Agreement.
A-2
The
Holder, by its acceptance of this Ownership 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, the Securities Administrator or the Certificate
Paying Agent in their individual capacities nor the Depositor is personally
liable to the Holder for any amount payable under this Ownership Certificate
or
the Agreement or, except as expressly provided in the Agreement, subject to
any
liability under the Agreement.
The
Holder acknowledges and agrees that its rights to receive distributions in
respect of this Ownership Certificate are subordinated to the rights of the
Noteholders as described in the Indenture and the rights of the Owner Trustee
as
described in the Trust Agreement.
The
Depositor and the Holder, by acceptance of an Ownership Certificate, agree
to
treat, and to take no action inconsistent with the treatment of, the Ownership
Certificate for federal, state and local income tax purposes as an equity
interest in the Trust.
The
Holder, by its acceptance of an Ownership Certificate, covenants and agrees
that
it will not at any time institute against the Depositor or the Trust, or join
in
any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar
law
in connection with any obligations relating to the Ownership Certificate, the
Notes, the Agreement or any other of the Operative Agreements.
Distributions
on this Ownership Certificate will be made as provided in the Agreement by
the
Certificate Paying Agent by wire transfer or check mailed to the Holder without
the presentation or surrender of this Ownership Certificate or the making of
any
notation hereon. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Ownership Certificate
will be made after due notice by the Certificate Paying Agent of the pendency
of
such distribution and only upon presentation and surrender of this Ownership
Certificate at the office or agency maintained by the Certificate Registrar
for
that purpose.
Reference
is hereby made to the further provisions of this Ownership Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
Unless
the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual
signature, this Ownership Certificate shall not entitle the Holder hereof to
any
benefit under the Agreement or be valid for any purpose.
THIS
OWNERSHIP CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS, AND
THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
A-3
IN
WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Ownership Certificate to be duly
executed.
HOMEBANC
MORTGAGE TRUST 2006-2
By:
WILMINGTON TRUST COMPANY, not in
its
individual capacity but solely as Owner
Trustee
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By: | ||
Authorized Signatory |
Dated:
_________________________
A-4
CERTIFICATE
OF AUTHENTICATION
This
is
the Ownership Certificate referred to in the within-mentioned Trust
Agreement.
XXXXX
FARGO BANK, N.A., not in its individual
capacity
but solely as Securities Administrator
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By: | ||
Authorized Signatory |
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Dated:
_________________________
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A-5
[REVERSE
OF OWNERSHIP CERTIFICATE]
HOMEBANC
MORTGAGE TRUST 2006-2 OWNERSHIP CERTIFICATE
The
Ownership Certificate does not represent an obligation of, or an interest in,
the Depositor, the Seller, the Indenture Trustee, the Owner Trustee, the
Securities Administrator, the Securities Administrator or any Affiliates of
any
of them and no recourse may be had against any such parties or their assets,
except as expressly set forth or contemplated herein or in the Agreement or
the
other Operative Agreements. In addition, this Ownership Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in
right
of payment to certain collections and recoveries with respect to the Collateral,
all as more specifically set forth herein. A copy of the Agreement may be
examined by any Certificateholder upon written request during normal business
hours at the principal office of the Depositor and at such other places, if
any,
designated by the Depositor.
The
Agreement permits the amendment thereof as specified below, provided that any
amendment be accompanied by an Opinion of Counsel to the effect that such
amendment complies with the provisions of the Agreement and would not cause
the
Trust to be subject to an entity level tax. If the purpose of the amendment
is
to correct any mistake, eliminate any inconsistency, cure any ambiguity or
deal
with any matter not covered, it shall not be necessary to obtain the consent
of
any Noteholder or the Indenture Trustee. If the purpose of the amendment is
to
add or eliminate or change any provision of the Agreement, other than as
specified in the preceding sentence, the amendment shall require the consent
of
the Holder and the consent of Noteholders evidencing more than 662/3%
of the
Outstanding Balance of the Notes and the Indenture Trustee; provided,
however,
that no
such amendment shall, as evidenced by an Opinion of Counsel, adversely affect
the tax status of the Trust; and provided,
further,
that no
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on the Collateral
or
distributions that shall be required to be made for the benefit of the
Noteholders or the Holder or (b) reduce the aforesaid percentage of the
Outstanding Balance of the Notes required to consent to or to waive the
requirement for the Holder to consent to any such amendment, in either case
of
clause (a) or (b) without the consent of the holders of all the outstanding
Securities and the Indenture Trustee.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Ownership Certificate is registerable in the Certificate
Register upon surrender of this Ownership Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar, accompanied
by
a written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon a new Ownership Certificate will be issued
to the designated transferee. The initial Certificate Registrar appointed under
the Agreement is the Securities Administrator.
Except
as
provided in the Agreement, the Ownership Certificate is issuable only in a
minimum Percentage Interest of 100%. No service charge will be made for any
such
registration of transfer or exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith or any expense incurred
thereby.
A-6
The
Owner
Trustee, the Certificate Paying Agent, the Certificate Registrar, the Securities
Administrator and any agent of the Owner Trustee, the Certificate Paying Agent,
the Certificate Registrar and the Securities Administrator may treat the Holder
as the owner hereof for all purposes, and none of the Owner Trustee, the
Certificate Paying Agent, the Certificate Registrar, the Securities
Administrator or any such agent shall be affected by any notice to the
contrary.
The
obligations and responsibilities created by the Agreement and the Trust created
thereby shall terminate upon the satisfaction and discharge of the Indenture
pursuant to Section 4.01 thereof and the termination of the Transfer and
Servicing Agreement.
A-7
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s) and assign(s) and transfer(s)
unto
(Please
print or type name and address, including postal zip code, of assignee and
social security number or employer identification number)
the
within Ownership Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
to
transfer said Ownership Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
I
[we]
further direct the Certificate Registrar to issue a new Ownership Certificate
to
the above-named assignee and deliver such Ownership Certificate to the following
address:
Dated:____________________ | |||
Signature by or on behalf of Assignor | |||
Authorized Officer |
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Signature
Guaranteed
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Name of Institution |
NOTICE:
The
signature(s) of this assignment must correspond with the name(s)
on the
face of this Certificate without alteration or any change whatsoever.
The
signature must be guaranteed by a participant in the Securities Transfer
Agents Medallion Program, the New York Stock Exchange Medallion Signature
Program or the Stock Exchanges Medallion Program. Notarized or witnessed
signatures are not acceptable as guaranteed
signatures.
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A-8
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for the information of the Certificate
Paying Agent. Distributions shall be made by wire transfer in immediately
available funds to
______________________________________________________________________________
for
the
account of
_______________________________________________________________
account
number __________________ or, if mailed by check, to
_________________________
_____________________________________________________________________________.
Applicable
reports and statements should be mailed to
_________________________________
_____________________________________________________________________________.
This
information is provided by
_____________________________________________,
the
assignee named above, or ____________________________________ as its
agent.
Signature
of assignee or agent
(for
authorization of wire transfer
only)
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A-9
EXHIBIT
B
FORM
OF
CERTIFICATE OF TRUST OF
HOMEBANC
MORTGAGE TRUST 2006-2
This
Certificate of Trust of HomeBanc Mortgage Trust 2006-2 (the “Trust”), is being
duly executed and filed by the undersigned, as trustee, to form a statutory
trust under the Delaware Statutory Trust Act (12 DEL. CODE, Sections 3801 et
seq.) (the “Act”)
1. NAME.
The
name of the statutory trust formed hereby is “HOMEBANC MORTGAGE TRUST
2006-2.”
2. DELAWARE
TRUSTEE. The name and business address of the trustee of the Trust in the State
of Delaware are Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration.
3. EFFECTIVE
DATE. This Certificate of Trust shall be effective on [
],
2006.
IN
WITNESS WHEREOF, the undersigned, being the owner trustee of the Trust, has
executed this Certificate of Trust in accordance with Section 3811(a) of the
Act.
WILMINGTON
TRUST COMPANY,
as
Owner Trustee
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By: | ||
Name:
Title:
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B-1
EXHIBIT
C
FORM
OF
RULE 144A INVESTMENT LETTER
__________________
Date
Xxxxx
Fargo Bank, NA
as
Certificate Registrar
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
Corporate Trust Department
Re:
HomeBanc
Mortgage Trust 2006-2
Ownership
Certificate
Ladies
and Gentlemen:
In
connection with our acquisition of the HomeBanc Mortgage Trust 2006-2 Ownership
Certificate (the “Certificate”), we certify that (a) we understand that the
Certificate has not been registered under the Securities Act of 1933, as amended
(the “Act”), or any state securities laws and is being transferred to us in a
transaction that is exempt from the registration requirements of the Act and
any
such laws, (b) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks of
investment in the Certificate, (c) we have had the opportunity to ask questions
of and receive answers from the HMB Acceptance Corp. (the “Depositor”)
concerning the purchase of the Certificate and all matters relating thereto
or
any additional information deemed necessary to our decision to purchase the
Certificate, (d) we have not, nor has anyone acting on our behalf, offered,
transferred, pledged, sold or otherwise disposed of the Certificate or any
interest in the Certificate, or solicited any offer to buy, transfer, pledge
or
otherwise dispose of the Certificate or any interest in the Certificate from
any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action that would
constitute a distribution of the Certificate under the Act or that would render
the disposition of the Certificate a violation of Section 5 of the Act or any
state securities laws or require registration pursuant thereto, and we will
not
act, or authorize any person to act, in such manner with respect to the
Certificate and (e) we are a “qualified institutional buyer” as that term is
defined in Rule 144A under the Act (“Rule 144A”). We are aware that the sale to
us is being made in reliance on Rule 144A.
We
are
acquiring the Certificate for our own account or for resale pursuant to Rule
144A and understand that such Certificate may be resold, pledged or transferred
only (1) to a person reasonably believed to be a qualified institutional buyer
that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A or (2) pursuant to another exemption
from
registration under the Act.
C-1
In
addition, we hereby certify that we are not an employee benefit plan or other
retirement arrangement subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or to Section 4975 of the Internal
Revenue Code of 1986, as amended (or to any other substantially similar law)
or
any entity deemed to hold the plan assets of the foregoing.
We
hereby
acknowledge that under the terms of the Trust Agreement among HMB Acceptance
Corp., as Depositor, Wilmington Trust Company, as Owner Trustee, and Xxxxx
Fargo
Bank, N.A., as Securities Administrator, dated as of November 1, 2006, no
transfer of the Certificate shall be permitted to be made to any person unless
the Certificate Registrar has received a certificate from such transferee in
the
form hereof.
We
hereby
indemnify the Depositor, Certificate Registrar and the Owner Trustee against
any
liability that may result to either of them if our transfer or other disposition
of the Certificate (or any interest therein) is not exempt from the registration
requirements of the Act and any applicable state securities laws or is not
made
in accordance with such federal and state laws, the provisions of this
certificate or the applicable provisions of the Indenture.
Very
truly yours,
[Name
of Transferee]
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By: | ||
Name:
Title:
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C-2
EXHIBIT
D
OWNER
TRUSTEE FEE LETTER AGREEMENT
[Retained
on file at:
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000]
D-1
EXHIBIT
E
FORM
OF
REPRESENTATION AND WARRANTY REGARDING TRANSFEREE’S
STATUS
AS
A REIT OR QUALIFIED REIT SUBSIDIARY
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Attention:
HomeBanc 2006-2
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
HomeBanc 2006-2
Re: HomeBanc
Mortgage Trust 2006-2
Ownership
Certificate
This
representation and warranty is delivered pursuant to Section 3.03 of the Trust
Agreement dated as of November 1, 2006 (the “Agreement”), among HMB Acceptance
Corp., as depositor (the “Depositor”), Wilmington Trust Company, as owner
trustee (the “Owner Trustee”), and Xxxxx Fargo Bank, N.A., as Securities
Administrator (the “Securities Administrator”), in connection with the transfer
by [HomeBanc Mortgage Trust 2006-2 (the “Trust”) to the undersigned] [the
[transferor] to the undersigned] as beneficial owner (the “Beneficial Owner”) of
a 100% Percentage Interest in the Ownership Certificate. Capitalized terms
used
but not defined in this document have the meanings ascribed to them in the
Agreement.
The
Beneficial Owner hereby certifies that it has received a copy of the Agreement
and that it understands the restrictions on transferability of the Ownership
Certificate set forth in Section 3.03 of the Agreement and the indemnity
provisions set forth in Section 7.02 of the Agreement. In connection with the
transfer of the Ownership Certificate to the Beneficial Owner, the Beneficial
Owner represents and warrants that:
(1) The
Beneficial Owner either (i) qualifies for taxation as a real estate investment
trust (a “REIT”) within the meaning of Sections 856 and 857 of the Internal
Revenue Code of 1986, as amended (the “Code”), (ii) is a qualified REIT
subsidiary within the meaning of Section 856(i) of the Code (a “Qualified REIT
Subsidiary”) or (iii) is an entity (a “Disregarded Entity”) that is both (A)
solely owned by an entity described in (i) or (ii) and (B) is disregarded as
an
entity separate from its owner within the meaning of Section 301.7701-2(c)(2)
of
the Treasury Regulations.
(2) The
Beneficial Owner hereby agrees to be subject to the indemnification provisions
set out in Section 7.02 of the Agreement, and hereby warrants that the
Beneficial Owner shall indemnify the Trust for any income tax imposed upon
the
Trust due to the Beneficial Owner’s failure to qualify as a REIT, a Qualified
REIT Subsidiary or a Disregarded Entity at any time at which such Beneficial
Owner owns the Ownership Certificate.
E-1
(3) The
Beneficial Owner hereby agrees to be subject to the provisions governing events
of default set out in the Indenture among HomeBanc Mortgage Trust 2006-2 (the
“Trust”), as issuer, U.S. Bank National Association, as indenture trustee, and
Xxxxx Fargo Bank, N.A., as Securities Administrator, dated as of November 1,
2006.
(4) The
Beneficial Owner hereby agrees to notify the Trust within sixty (60) days of
the
date on which the Beneficial Owner discovers that it has failed to qualify
as a
REIT, a Qualified REIT Subsidiary or a Disregarded Entity at any time at which
the Beneficial Owner owns the Ownership Certificate.
(5) The
Beneficial Owner is not, and on _________ [date of transfer] will not be, an
employee benefit plan or other retirement arrangement subject to Section 406
of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or
Section 4975 of the Code or any substantially similar applicable law
(collectively, a “Plan”) or a person acting on behalf of or investing the assets
of any such Plan to acquire the Ownership Certificate.
(6) The
Beneficial Owner hereby acknowledges that under the terms of the Agreement,
no
transfer of the Ownership Certificate shall be permitted to be made to any
person unless the Certificate Registrar has received a certificate from such
transferee to the effect that such transferee (i) is not a Plan and is not
using
the assets of any Plan to acquire the Ownership Certificate and (ii) is a REIT,
a Qualified REIT Subsidiary or a Disregarded Entity.
(7) The
Beneficial Owner will not transfer the Ownership Certificate to any person
or
entity (i) as to which the Purchaser has reason to believe does not satisfy
the
requirements set forth in this affidavit, and (ii) without obtaining from the
prospective Purchaser an affidavit substantially in this form and providing
to
the Certificate Registrar a written statement substantially in the form of
Exhibit E to the Agreement.
The
Holder of the Ownership Certificate will not take any action or inaction that
would cause the Trust to be subject to any United States federal income
taxation.
E-2
EXHIBIT
F
TRANSACTION
PARTIES
Indenture
Trustee
|
U.S.
Bank National Association
|
Owner
Trustee
|
Wilmington
Trust Company
|
Securities
Administrator
|
Xxxxx
Fargo Bank, N.A.
|
Master
Servicer
|
Xxxxx
Fargo Bank, N.A.
|
Custodian
|
U.S.
Bank National Association
|
Interest
Rate Cap Counterparty
|
Bear
Xxxxxxx Financial Products Inc.
|
Servicer
|
HomeBanc
Corp.
|
Subservicer
|
HomeBanc
Mortgage Corporation
|
Originator
|
HomeBanc
Mortgage Corporation
|
Sponsor/Seller
|
HomeBanc
Corp.
|
F-1