EXECUTION COPY
RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
AMENDED AND RESTATED TRUST AGREEMENT
Dated as of October 27, 2005
Home Loan-Backed Certificates,
Series 2005-HI3
TABLE OF CONTENTS
PAGE
ARTICLE I Definitions...............................................................1
Section 1.01. Definitions.......................................................1
Section 1.02. Other Definitional Provisions.....................................1
ARTICLE II Organization..............................................................2
Section 2.01. Name..............................................................2
Section 2.02. Office............................................................2
Section 2.03. Purposes and Powers...............................................2
Section 2.04. Appointment of Owner Trustee......................................3
Section 2.05. Initial Capital Contribution of Trust Estate......................3
Section 2.06. Declaration of Trust..............................................3
Section 2.07. Liability of the Holders of the Certificates......................3
Section 2.08. Title to Owner Trust Estate.......................................3
Section 2.09. Situs of Trust....................................................4
Section 2.10. Representations and Warranties of the Depositor...................4
Section 2.11. Payment of Trust Fees.............................................5
ARTICLE III Conveyance of the Home Loans; Certificates................................5
Section 3.01. Conveyance of the Home Loans......................................5
Section 3.02. Initial Ownership.................................................5
Section 3.03. The Certificates..................................................5
Section 3.04. Authentication of Certificates....................................6
Section 3.05. Registration of and Limitations on Transfer and Exchange of
Certificates .....................................................6
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates.................9
Section 3.07. Persons Deemed Certificateholders.................................9
Section 3.08. Access to List of Certificateholders' Names and Addresses.........9
Section 3.09. Maintenance of Office or Agency...................................9
Section 3.10. Certificate Paying Agent..........................................9
ARTICLE IV Authority and Duties of Owner Trustee....................................11
Section 4.01. General Authority................................................11
Section 4.02. General Duties...................................................11
Section 4.03. Action upon Instruction..........................................11
Section 4.04. No Duties Except as Specified under Specified Documents or in
Instructions ....................................................12
Section 4.05. Restrictions.....................................................12
Section 4.06. Prior Notice to Certificateholders with Respect to Certain Matters13
Section 4.07. Action by Certificateholders with Respect to Certain Matters.....13
Section 4.08. Action by Certificateholders with Respect to Bankruptcy..........13
Section 4.09. Restrictions on Certificateholders' Power........................14
Section 4.10. Majority Control.................................................14
Section 4.11. Doing Business in Other Jurisdictions............................14
ARTICLE V Application of Trust Funds...............................................14
Section 5.01. Distributions....................................................14
Section 5.02. Method of Payment................................................15
Section 5.03. Signature on Returns.............................................15
Section 5.04. Statements to Certificateholders.................................15
Section 5.05. Tax Reporting....................................................15
Section 5.06. Derivative Contracts.............................................16
ARTICLE VI Concerning the Owner Trustee.............................................16
Section 6.01. Acceptance of Trusts and Duties..................................16
Section 6.02. Furnishing of Documents..........................................18
Section 6.03. Representations and Warranties...................................18
Section 6.04. Reliance; Advice of Counsel......................................18
Section 6.05. Not Acting in Individual Capacity................................19
Section 6.06. Owner Trustee Not Liable for Certificates or Related Documents...19
Section 6.07. Owner Trustee May Own Certificates and Notes.....................19
ARTICLE VII Compensation of Owner Trustee............................................20
Section 7.01. Owner Trustee's Fees and Expenses................................20
Section 7.02. Indemnification..................................................20
ARTICLE VIII Termination of Trust Agreement...........................................20
Section 8.01. Termination of Trust Agreement...................................20
ARTICLE IX Successor Owner Trustees and Additional Owner Trustees...................21
Section 9.01. Eligibility Requirements for Owner Trustee.......................21
Section 9.02. Replacement of Owner Trustee.....................................22
Section 9.03. Successor Owner Trustee..........................................22
Section 9.04. Merger or Consolidation of Owner Trustee.........................23
Section 9.05. Appointment of Co-Trustee or Separate Trustee....................23
ARTICLE X Miscellaneous............................................................24
Section 10.01. Amendments.......................................................24
Section 10.02. No Legal Title to Owner Trust Estate.............................26
Section 10.03. Limitations on Rights of Others..................................26
Section 10.04. Notices..........................................................26
Section 10.05. Severability.....................................................27
Section 10.06. Separate Counterparts............................................27
Section 10.07. Successors and Assigns...........................................27
Section 10.08. No Petition......................................................27
Section 10.09. No Recourse......................................................28
Section 10.10. Headings.........................................................28
Section 10.11. GOVERNING LAW....................................................28
Section 10.12. Integration......................................................28
This Amended and Restated Trust Agreement, dated as of October 27, 2005
(as amended from time to time, this "Trust Agreement"), between RESIDENTIAL
FUNDING MORTGAGE SECURITIES II, INC., a Delaware corporation, as depositor (the
"Depositor") and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
owner trustee (the "Owner Trustee"),
WITNESSETH THAT:
WHEREAS, the Depositor and the Owner Trustee entered into a trust
agreement dated as of October 20, 2005, in connection with the formation of a
Delaware statutory trust (the "Original Trust Agreement");
WHEREAS, the Depositor and the Owner Trustee wish to amend and restate
the Original Trust Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the Depositor and the Owner Trustee agree as follows:
ARTICLE I
Definitions
Section 1.01. Definitions. For all purposes of this Trust Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in Appendix A to the Indenture dated October 27, 2005 (the
"Indenture"), between Home Loan Trust 2005-HI3, as issuer, and JPMorgan Chase
Bank, N.A., as indenture trustee. All other capitalized terms used herein shall
have the meanings specified herein.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Trust Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As used in this Trust Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Trust Agreement or in any such certificate or other document, and
accounting terms partly defined in this Trust Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this Trust
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting principles, the
definitions contained in this Trust Agreement or in any such certificate or
other document shall control.
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(c) The words "hereof," "herein," "hereunder" and words of similar import when
used in this Trust Agreement shall refer to this Trust Agreement as a whole and
not to any particular provision of this Trust Agreement; Article, Section and
Exhibit references contained in this Trust Agreement are references to Articles,
Sections and Exhibits in or to this Trust Agreement unless otherwise specified;
and the term "including" shall mean "including without limitation".
(d) The definitions contained in this Trust Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE II
Organization
Section 2.01. Name. The trust created hereby (the "Trust") shall be known as
"Home Loan Trust 2005-HI3," in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
Section 2.02. Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address in Delaware as
the Owner Trustee may designate by written notice to the Certificateholders and
the Depositor.
Section 2.03. Purposes and Powers. The purpose of the Trust is to engage in the
following activities:(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Trust Agreement and to sell the Notes and the
Certificates; (ii) to purchase the Home Loans and to pay the organizational,
start-up and transactional expenses of the Trust; (iii) to assign, grant,
transfer, pledge and convey the Home Loans pursuant to the Indenture and to
hold, manage and distribute to the Certificateholders pursuant to Section 5.01
any portion of the Home Loans released from the Lien of, and remitted to the
Trust pursuant to, the Indenture; (iv) to enter into and perform its obligations
under the Basic Documents to which it is to be a party; (v) 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, including, without limitation, to accept additional contributions of
equity that are not subject to the Lien of the Indenture; and (vi) subject to
compliance with the Basic Documents, to engage in such other activities as may
be required in connection with conservation of the Trust Estate and the making
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of distributions 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 Trust Agreement or the Basic
Documents while any Note is outstanding without the consent of the Holders of a
majority of the Certificate Percentage Interest of the Certificates and the
Indenture Trustee.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby appoints the
Owner Trustee as trustee of the Trust effective as of the date hereof, to have
all the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Owner Trust Estate. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Trust, as of the
date hereof, the sum of $1. The Owner Trustee hereby acknowledges receipt in
trust from the Depositor, as of the date hereof, of the foregoing contribution,
which shall constitute the initial corpus of the Trust and shall be deposited in
the Certificate Distribution Account. The Owner Trustee also acknowledges on
behalf of the Issuer, the receipt in trust of the Home Loans and such other
collateral assigned to the Trust pursuant to Section 3.01, which shall
constitute the Owner Trust Estate.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares that it
shall hold the Owner Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholders, subject to
the obligations of the Trust under the Basic Documents. It is the intention of
the parties hereto that the Trust constitute a statutory trust under the
Statutory Trust Statute and that this Trust Agreement constitute the governing
instrument of such statutory trust. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth herein and in the
Statutory Trust Statute with respect to accomplishing the purposes of the Trust.
For purposes of this Declaration of Trust, "Statutory Trust Statute" means
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss.3801 et. Seq. as the
same may be amended or supplemented from time to time. It is the intention of
the parties hereto that, solely for federal, state and local income and
franchise tax purposes, the Trust shall be treated as an entity disregarded from
the sole holder of 100% of the Certificates, which Certificates shall initially
be owned by the Depositor or an affiliate thereof, and the provisions of this
Trust Agreement shall be interpreted to further this intention. If more than one
person owns the Certificates for federal income tax purposes, then it is the
intention of the parties hereto, that solely for federal, state and local income
and franchise tax purposes the Trust shall be treated as a partnership, with the
assets of the partnership being the Trust Estate, the partners of the
partnership being the Certificateholders and the Notes being debt of the
partnership and the provisions of this Trust Agreement shall be interpreted to
further this intention. The parties agree that, unless otherwise required by
appropriate tax authorities, the Owner Trustee will file or cause to be filed
annual or other necessary returns, reports and other forms consistent with the
characterization of the Owner Trust as an entity wholly owned by the Depositor
or an affiliate thereof, or, if two or more persons own the Certificates, as a
partnership for such tax purposes.
Section 2.07. Liability of the Holders of the Certificates. The Holders of the
Certificates shall be liable for any entity level taxes imposed on the Trust.
Section 2.08. Title to Trust Property. Legal title to the Owner Trust Estate
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the Owner
Trust Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
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Section 2.09. Situs of Trust. The Trust will be located and administered in the
State of Delaware. All bank accounts maintained by the Owner Trustee on behalf
of the Trust shall be located in the State of Delaware or the State of New York.
The Trust shall not have any employees in any state other than Delaware;
provided, however, that nothing herein shall restrict or prohibit the Owner
Trustee from having employees within or without the State of Delaware or taking
actions outside the State of Delaware in order to comply with Section 2.03.
Payments will be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York. The only
office of the Trust will be at the Corporate Trust Office in Delaware.
Section 2.10. Representations and Warranties of the Depositor. The Depositor
hereby represents and warrants to the Owner Trustee that:
(i) The Depositor is duly organized and validly existing as a 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.
(ii) The Depositor is duly qualified to do business as a foreign corporation
in good standing and has obtained all necessary licenses and approvals
in all jurisdictions in which the ownership or lease of its property or
the conduct of its business shall require such qualifications and in
which the failure to so qualify would have a material adverse effect on
the business, properties, assets or condition (financial or other) of
the Depositor and the ability of the Depositor to perform under this
Trust Agreement.
(iii) The Depositor has the power and authority to execute and deliver this
Trust Agreement and to carry out its terms; the Depositor has full power
and authority to sell and assign the property to be sold and assigned to
and deposited with the Trust as part of the Trust and the Depositor has
duly authorized such sale and assignment and deposit to the Trust by all
necessary corporate action; and the execution, delivery and performance
of this Trust Agreement have been duly authorized by the Depositor by
all necessary corporate action.
(iv) The consummation of the transactions contemplated by this Trust
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a
party or by which it is bound; nor result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than pursuant to the
Basic Documents); nor violate any law or, to the best of the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of
any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Depositor or its properties.
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Section 2.11. Payment of Trust Fees. The Owner Trustee shall pay the Trust's
fees and expenses incurred with respect to the performance of the Trust's duties
under the Indenture.
ARTICLE III
Conveyance of the Home Loans;
Certificates
Section 3.01. Conveyance of the Home Loans. The Depositor, concurrently with the
execution and delivery hereof, does hereby transfer, convey, sell and assign to
the Trust, on behalf of the Holders of the Notes and the Certificates, without
recourse, all its right, title and interest in and to (i) the Home Loans, all
interest accruing thereon and all collections in respect thereof received on or
after the Cut-off Date, (ii) property which secured a Home Loan and which has
been acquired by foreclosure or deed in lieu of foreclosure, (iii) the interest
of the Depositor in any insurance policies in respect of the Home Loans, and
(iv) all proceeds of the foregoing.
The parties hereto intend that the transaction set forth herein be a
sale by the Depositor to the Trust of all of its right, title and interest in
and to the Home Loans. In the event that the transaction set forth herein is not
deemed to be a sale, the Depositor hereby grants to the Trust a security
interest in all of its right, title and interest in, to and under (i) the Home
Loans, all interest accruing thereon and all collections in respect thereof
received on or after the Cut-off Date, (ii) property which secured a Home Loan
and which has been acquired by foreclosure or deed in lieu of foreclosure, (iii)
the interest of the Depositor in any insurance policies in respect of the Home
Loans, and (iv) all proceeds of the foregoing and all distributions thereon and
all proceeds thereof; and this Trust Agreement shall constitute a security
agreement under applicable law.
Section 3.02. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and until the conveyance
of the Home Loans pursuant to Section 3.01 and the issuance of the Certificates,
the Depositor shall be the sole Certificateholder.
Section 3.03. The Certificates. The Certificates shall be issued in a single
denomination of a 100% Certificate Percentage Interest.
The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Owner Trustee and
authenticated in the manner provided in Section 3.04. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefit of this Trust Agreement,
5
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of such
Certificates. A Person shall become a Certificateholder and shall be entitled to
the rights and subject to the obligations of a Certificateholder hereunder upon
such Person's acceptance of a Certificate duly registered in such Person's name,
pursuant to Section 3.05.
A transferee of a Certificate shall become a Certificateholder and shall
be entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee's acceptance of a Certificate duly registered in
such transferee's name pursuant to and upon satisfaction of the conditions set
forth in Section 3.05.
Section 3.04. Authentication of Certificates. Concurrently with the acquisition
of the Home Loans by the Trust, the Owner Trustee or the Certificate Paying
Agent shall cause the Certificates in an initial Certificate Percentage Interest
of 100% to be executed on behalf of the Trust, authenticated and delivered to or
upon the written order of the Depositor, signed by its chairman of the board,
its president or any vice president, without further corporate action by the
Depositor, in authorized denominations. No Certificate shall entitle its holder
to any benefit under this Trust Agreement or be valid for any purpose unless
there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Owner Trustee
or the Certificate Paying Agent, by manual signature; such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
Section 3.05. Registration of and Limitations on Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.09, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Indenture Trustee shall be
the initial Certificate Registrar. If the Certificate Registrar resigns or is
removed, the Owner Trustee shall appoint a successor Certificate Registrar.
Subject to satisfaction of the conditions set forth below, upon
surrender for registration of transfer of any Certificate at the office or
agency maintained pursuant to Section 3.09, the Owner Trustee shall execute,
authenticate and deliver (or shall cause the Certificate Registrar as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate amount dated the date of authentication by the
Owner Trustee or any authenticating agent. At the option of a Certificateholder,
Certificates may be exchanged for other Certificates of authorized denominations
of a like aggregate amount upon surrender of the Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.09.
Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Certificateholder
or such Certificateholder's attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall be
cancelled and subsequently disposed of by the Certificate Registrar in
accordance with its customary practice.
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No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Except as described below, no transfer of any Certificate or interest
therein shall be made to any Person that is not a United States Person. Each
Certificateholder shall establish its non-foreign status by submitting to the
Certificate Paying Agent an IRS Form W-9 and the Certificate of Non-Foreign
Status set forth in Exhibit F hereto.
A Certificate may be transferred to a Certificateholder unable to
establish its non-foreign status as described in the preceding paragraph only if
such Certificateholder provides an Opinion of Counsel, which Opinion of Counsel
shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar or the Depositor, satisfactory to the Depositor, that such transfer
(1) will not affect the tax status of the Owner Trust and (2) will not adversely
affect the interests of any Certificateholder or Noteholder, including, without
limitation, as a result of the imposition of any United States federal
withholding taxes on the Trust (except to the extent that such withholding taxes
would be payable solely from amounts otherwise distributable to the Certificate
of the prospective transferee). If such transfer occurs and such foreign
Certificateholder becomes subject to such United States federal withholding
taxes, any such taxes will be withheld by the Indenture Trustee. Each
Certificateholder unable to establish its non-foreign status shall submit to the
Certificate Paying Agent a copy of its Form W-8BEN and shall resubmit such Form
W-8BEN every three years.
(b) (i) No transfer, sale, pledge or other disposition of a Certificate shall be
made unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) an investment
letter in substantially the form attached hereto as Exhibit C (or in such form
and substance reasonably satisfactory to the Certificate Registrar and the
Depositor) which investment letters shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Master Servicer or the Depositor
and which investment letter states that, among other things, such transferee (a)
is a "qualified institutional buyer" as defined under Rule 144A, acting for its
own account or the accounts of other "qualified institutional buyers" as defined
under Rule 144A, and (b) is aware that the proposed transferor intends to rely
on the exemption from registration requirements under the Securities Act,
provided by Rule 144A or (ii) (a) a written Opinion of Counsel acceptable to and
in form and substance satisfactory to the Certificate Registrar and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from said Act and laws or is
being made pursuant to said Act and laws, which Opinion of Counsel shall not be
an expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Master Servicer or the Depositor and (b) the transferee executes a
representation letter, substantially in the form of Exhibit D hereto, and the
transferor executes a representation letter, substantially in the form of
Exhibit E hereto, each acceptable to and in form and substance satisfactory to
the Certificate Registrar and the Depositor certifying the facts surrounding
such transfer, which representation letters shall not be an expense of the
Trust, the Owner Trustee, the Certificate Registrar, the Master Servicer or the
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Depositor and (B) the Certificate of Non-Foreign Status (in substantially the
form attached hereto as Exhibit F) acceptable to and in form and substance
reasonably satisfactory to the Certificate Registrar and the Depositor, which
certificate shall not be an expense of the Trust, the Owner Trustee, the
Certificate Registrar or the Depositor. If the Certificateholder is unable to
provide a Certificate of Non-Foreign Status, the Certificateholder must provide
an Opinion of Counsel as described in the preceding paragraph. The
Certificateholder desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trust, the Owner Trustee, the Certificate Registrar, the
Master Servicer and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
(ii) No transfer of Certificates or any interest therein shall be made
to any Person unless the Depositor, the Owner Trustee, the Certificate Registrar
and the Master Servicer are provided with an Opinion of Counsel acceptable to
and in form and substance satisfactory to the Depositor, the Owner Trustee, the
Certificate Registrar and the Master Servicer to the effect that the purchase
and holding of Certificates is permissible under applicable law, will not
constitute or result in any prohibited transaction under ERISA or Section 4975
of the Code or comparable provisions of any subsequent enactments and will not
subject the Depositor, the Owner Trustee, the Certificate Registrar or the
Master Servicer to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Depositor, the Owner Trustee, the Certificate Registrar or the Master
Servicer. In lieu of such Opinion of Counsel, a Person acquiring such
Certificates may provide a certification in the form of Exhibit G to this
Agreement, which the Depositor, the Owner Trustee, the Certificate Registrar and
the Master Servicer may rely upon without further inquiry or investigation.
Neither an Opinion of Counsel nor a certification will be required in connection
with the initial transfer of any such Certificate by the Depositor to an
affiliate of the Depositor (in which case, the Depositor or any affiliate
thereof shall be deemed to have represented that such affiliate is not a Plan, a
Person acting, directly or indirectly, on behalf of any Plan, or a Person using
Plan Assets of any Plan to acquire the Certificates) and the Owner Trustee shall
be entitled to conclusively rely upon a representation (which, upon the request
of the Owner Trustee, shall be a written representation) from the Depositor of
the status of such transferee as an affiliate of the Depositor.
(iii) In addition, no transfer of a Certificate shall be permitted, and
no such transfer shall be registered by the Certificate Registrar or be
effective hereunder, unless evidenced by an Opinion of Counsel, which
establishes that such transfer or the registration of such transfer would not
cause the Trust to be classified as a publicly traded partnership, an
association taxable as a corporation, a corporation or a taxable mortgage pool
for federal and relevant state income tax purposes, which Opinion of Counsel
shall not be an expense of the Certificate Registrar and shall be an expense of
the proposed transferee. No Opinion of Counsel will be required if such transfer
is made to a nominee of an existing beneficial holder of a Certificate.
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(iv) In addition, no transfer, sale, assignment, pledge or other
disposition of a Certificate shall be made unless the proposed transferee
certifies, in form and substance reasonably satisfactory to the Certificate
Registrar and the Depositor that (1) the transferee is acquiring the Certificate
for its own behalf and is not acting as agent or custodian for any other person
or entity in connection with such acquisition and (2) the transferee is not a
partnership, grantor trust or S corporation for federal income tax purposes.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate shall be surrendered to the Certificate Registrar, or if
the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them and the Issuer from harm, then in
the absence of notice to the Certificate Registrar or the Owner Trustee that
such Certificate has been acquired by a bona fide purchaser, the Owner Trustee
shall execute on behalf of the Trust and the Owner Trustee or the Certificate
Paying Agent, as the Trust's authenticating agent, shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and denomination. In
connection with the issuance of any new Certificate under this Section 3.06, the
Owner Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this Section
3.06 shall constitute conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 3.07. Persons Deemed Certificateholders. Prior to due presentation of a
Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar or any Certificate Paying Agent may treat the Person in whose name any
Certificate is registered in the Certificate Register as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 5.02
and for all other purposes whatsoever, and none of the Trust, the Owner Trustee,
the Certificate Registrar or any Paying Agent shall be bound by any notice to
the contrary.
Section 3.08. Access to List of Certificateholders' Names and Addresses. The
Certificate Registrar shall furnish or cause to be furnished to the Depositor or
the Owner Trustee, within 15 days after receipt by the Certificate Registrar of
a written request therefor from the Depositor or the Owner Trustee, a list, in
such form as the Depositor or the Owner Trustee, as the case may be, may
reasonably require, of the names and addresses of the Certificateholders as of
the most recent Record Date. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Registrar or the Owner Trustee accountable by reason
of the disclosure of its name and address, regardless of the source from which
such information was derived.
Section 3.09. Maintenance of Office or Agency. The Owner Trustee, on behalf of
the Trust, shall maintain in the City of New York an office or offices or agency
or agencies where Certificates may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Owner Trustee in
respect of the Certificates and the Basic Documents may be served. The Owner
Trustee initially designates the Corporate Trust Office of the Indenture Trustee
as its office for such purposes. The Owner Trustee shall give prompt written
notice to the Depositor and the Certificateholders of any change in the location
of the Certificate Register or any such office or agency.
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Section 3.10. Certificate Paying Agent. (a) The Certificate Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution
Account on behalf of the Trust in accordance with the provisions of the
Certificates and Section 5.01 hereof from payments remitted to the Certificate
Paying Agent by the Indenture Trustee pursuant to Section 3.05 of the Indenture.
The Trust hereby appoints the Indenture Trustee as Certificate Paying Agent (the
"Certificate Paying Agent") and the Indenture Trustee hereby accepts such
appointment and further agrees that it will be bound by the provisions of this
Trust Agreement relating to the Certificate Paying Agent and shall:
(i) hold all sums held by it for the payment of amounts due with respect to
the Certificates in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust of which it
has actual knowledge in the making of any payment required to be made
with respect to the Certificates;
(iii) at any time during the continuance of any such default, upon the written
request of the Owner Trustee, forthwith pay to the Owner Trustee on
behalf of the Trust all sums so held in trust by such Certificate Paying
Agent;
(iv) immediately resign as Certificate Paying Agent and forthwith pay to the
Owner Trustee on behalf of the Trust all sums held by it in trust for
the payment of Certificates if at any time it ceases to meet the
standards required to be met by the Certificate Paying Agent at the time
of its appointment;
(v) comply with all requirements of the Code with respect to the withholding
from any payments made by it on any Certificates of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith; and
(vi) deliver to the Owner Trustee a copy of the report to Certificateholders
prepared with respect to each Payment Date by the Master Servicer
pursuant to Section 4.01 of the Servicing Agreement.
(b) The Trust may revoke such power and remove the Certificate Paying Agent
if the Owner Trustee determines in its sole discretion that the
Certificate Paying Agent shall have failed to perform its obligations
under this Trust Agreement in any material respect. The Indenture
Trustee shall be permitted to resign as Certificate Paying Agent upon 30
days' written notice to the Owner Trustee; provided the Indenture
Trustee is also resigning as Paying Agent under the Indenture at such
time. In the event that the Indenture Trustee shall no longer be the
Certificate Paying Agent under this Trust Agreement and Paying Agent
under the Indenture, the Owner Trustee shall appoint a successor to act
as Certificate Paying Agent (which shall be a bank or trust company) and
which shall also be the successor Paying Agent under the Indenture. The
Owner Trustee shall cause such successor Certificate Paying Agent or any
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additional Certificate Paying Agent appointed by the Owner Trustee to
execute and deliver to the Owner Trustee an instrument to the effect set
forth in this Section 3.10 as it relates to the Certificate Paying
Agent. The successor Certificate Paying Agent shall covenant and agree
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 proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations with
respect to any Certificate, this Trust Agreement or any of the other
Basic Documents. The Certificate Paying Agent shall return all unclaimed
funds to the Trust and upon removal of a Certificate Paying Agent such
Certificate Paying Agent shall also return all funds in its possession
to the Trust. The provisions of Sections 6.01, 6.03, 6.04 and 7.01 shall
apply to the Certificate Paying Agent to the extent applicable. Any
reference in this Agreement to the Certificate Paying Agent shall
include any co-paying agent unless the context requires otherwise.
(c) The Certificate Paying Agent shall establish and maintain with itself
the Certificate Distribution Account in which the Certificate Paying
Agent shall deposit, on the same day as it is received from the
Indenture Trustee, each remittance received by the Certificate Paying
Agent with respect to payments made pursuant to the Indenture. The
Certificate Paying Agent shall make all distributions of Certificate
Distribution Amounts on the Certificates, from moneys on deposit in the
Certificate Distribution Account.
ARTICLE IV
Authority and Duties of Owner Trustee
Section 4.01. General Authority. The Owner Trustee is authorized and directed to
execute and deliver the Basic Documents to which the Trust is to be a party and
each certificate or other document attached as an exhibit to or contemplated by
the Basic Documents to which the Trust is to be a party and any amendment or
other agreement or instrument described herein, in each case, in such form as
the Owner Trustee shall approve, as evidenced conclusively by the Owner
Trustee's execution thereof. In addition to the foregoing, the Owner Trustee is
obligated to take all actions required of the Trust pursuant to the Basic
Documents.
Section 4.02. General Duties. The Owner Trustee shall be responsible to
administer the Trust pursuant to the terms of this Trust Agreement and the Basic
Documents to which the Trust is a party and in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Trust Agreement.
Section 4.03. Action upon Instruction. (a) Subject to this Article IV and in
accordance with the terms of the Basic Documents, the Certificateholders may by
written instruction direct the Owner Trustee in the management of the Trust.
Such direction may be exercised at any time by written instruction of the
Certificateholders pursuant to this Article IV.
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(b) Notwithstanding the foregoing, the Owner Trustee shall not be required to
take any action hereunder or under any Basic Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any Basic Document or is otherwise contrary
to law.
(c) Whenever the Owner Trustee is unable to decide between alternative courses
of action permitted or required by the terms of this Trust Agreement or under
any Basic Document, or in the event that the Owner Trustee is unsure as to the
application of any provision of this Trust Agreement or any Basic Document or
any such provision is ambiguous as to its application, or is, or appears to be,
in conflict with any other applicable provision, or in the event that this Trust
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instructions received from Holders of Certificates representing
a majority of the Certificate Percentage Interest thereof, the Owner Trustee
shall not be liable on account of such action to any Person. If the Owner
Trustee shall not have received appropriate instruction within 10 days of such
notice (or within such shorter period of time as reasonably may be specified in
such notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action not inconsistent with
this Trust Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for such action or inaction.
Section 4.04. No Duties Except as Specified under Specified Documents or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Trust Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 4.03; and no implied duties or obligations
shall be read into this Trust Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Trust Agreement or any Basic Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Trust Estate that result from actions by, or claims against, the Owner Trustee
that are not related to the ownership or the administration of the Owner Trust
Estate.
Section 4.05. Restrictions. (a) The Owner Trustee shall not take any action (x)
that is inconsistent with the purposes of the Trust set forth in Section 2.03 or
(y) that, to the actual knowledge of the Owner Trustee, would result in the
Trust becoming taxable as a corporation for federal income tax purposes. The
Certificateholders shall not direct the Owner Trustee to take action that would
violate the provisions of this Section 4.05.
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(b) The Owner Trustee shall not convey or transfer any of the Trust's properties
or assets, including those included in the Trust Estate, to any person unless
(x) it shall have received an Opinion of Counsel to the effect that such
transaction will not have any material adverse tax consequence to the Trust or
any Certificateholder and (y) such conveyance or transfer shall not violate the
provisions of Section 3.16(b) of the Indenture.
Section 4.06. Prior Notice to Certificateholders with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not take
action unless, at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholders in writing of the proposed
action and Holders of Certificates representing a majority of the Certificate
Percentage Interest thereof:
(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 Home Loans) and the compromise of any action,
claim or lawsuit brought by or against the Trust (except with respect to
the aforementioned claims or lawsuits for collection of cash
distributions due and owing under the Home Loans);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Statutory
Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and
such amendment materially adversely affects the interest of the
Certificateholders; and
(e) the appointment pursuant to the Indenture of a successor Note Registrar,
Paying Agent or Indenture Trustee or pursuant to this Trust Agreement of
a successor Certificate Registrar or Certificate Paying Agent or the
consent to the assignment by the Note Registrar, Paying Agent, Indenture
Trustee, Certificate Registrar or Certificate Paying Agent of its
obligations under the Indenture or this Trust Agreement, as applicable.
Section 4.07. Action by Certificateholders with Respect to Certain Matters. The
Owner Trustee shall not have the power, except upon the direction of
Certificateholders evidencing not less than a majority of the outstanding
Certificate Percentage Interest of the Certificates, to (a) remove the Master
Servicer under the Servicing Agreement pursuant to Section 7.01 thereof or (b)
except as expressly provided in the Basic Documents, sell the Home Loans after
the termination of the Indenture. The Owner Trustee shall take the actions
referred to in the preceding sentence only upon written instructions signed by
Certificateholders evidencing not less than a majority of the outstanding
Certificate Percentage Interest of the Certificates.
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Section 4.08. Action by Certificateholders with Respect to Bankruptcy. The Owner
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the delivery to the Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
Section 4.09. Restrictions on Certificateholders' Power. The Certificateholders
shall not direct the Owner Trustee to take or to refrain from taking any action
if such action or inaction would be contrary to any obligation of the Trust or
the Owner Trustee under this Trust Agreement or any of the Basic Documents or
would be contrary to Section 2.03, nor shall the Owner Trustee be obligated to
follow any such direction, if given.
Section 4.10. Majority Control. Except as expressly provided herein, any action
that may be taken by the Certificateholders under this Trust Agreement may be
taken by the Certificateholders evidencing not less than a majority of the
outstanding Certificate Percentage Interest of the Certificates. Except as
expressly provided herein, any written notice of the Certificateholders
delivered pursuant to this Trust Agreement shall be effective if signed by
Certificateholders evidencing not less than a majority of the outstanding
Certificate Percentage Interest of the Certificates at the time of the delivery
of such notice.
Section 4.11. Doing Business in Other Jurisdictions. Notwithstanding anything
contained herein to the contrary, neither Wilmington Trust Company nor the Owner
Trustee shall be required to take any action in any jurisdiction other than in
the State of Delaware if the taking of such action will, even after the
appointment of a co-trustee or separate trustee in accordance with Section 9.05
hereof, (i) require the consent or approval or authorization or order of or the
giving of notice to, or the registration with or the taking of any other action
in respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware; (ii) result in any fee, tax or
other governmental charge under the laws of the State of Delaware becoming
payable by Wilmington Trust Company, or (iii) subject Wilmington Trust Company
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by Wilmington Trust Company or the Owner Trustee, as the case may
be, contemplated hereby.
ARTICLE V
Application of Trust Funds
Section 5.01. Distributions. (a) On each Payment Date, the Certificate Paying
Agent shall distribute to the Certificateholders all funds on deposit in the
Certificate Distribution Account and available therefor (as provided in Section
3.05 of the Indenture), as the Certificate Distribution Amount for such Payment
Date. Upon termination of the Indenture in accordance with the terms thereof,
distributions to the Certificateholder shall continue to be determined in
accordance with the provisions for distributions in Section 3.05 of the
Indenture. All distributions made pursuant to this Section shall be distributed
to the Certificateholders on a pro rata basis based on the Certificate
Percentage Interests thereof.
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(b) In the event that any withholding tax is imposed on the distributions (or
allocations of income) to a Certificateholder, such tax shall reduce the amount
otherwise distributable to the Certificateholder in accordance with this Section
5.01. The Certificate Paying Agent is hereby authorized and directed to retain
or cause to be retained from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Trust (but such authorization shall not prevent the Owner Trustee
from contesting any such tax in appropriate proceedings, and withholding payment
of such tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a Certificateholder shall
be treated as cash distributed to such Certificateholder at the time it is
withheld by the Certificate Paying Agent and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Certificate Paying Agent may in its sole discretion
withhold such amounts in accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the creditors
of the Trust, including the Noteholders.
(d) Allocations of profits and losses, as determined for federal income tax
purposes, shall be made to the Certificateholders on a pro rata basis based on
the Certificate Percentage Interests thereof.
Section 5.02. Method of Payment. Subject to Section 8.01(c), distributions
required to be made to Certificateholder on any Payment Date as provided in
Section 5.01 shall be made to the Certificateholder of record 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 Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior to
such Payment Date or, if not, by check mailed to such Certificateholder at the
address of the Holder appearing in the Certificate Register.
Section 5.03. Signature on Returns. To the extent required and unless otherwise
required by law, the Owner Trustee shall sign on behalf of the Trust the tax
returns of the Trust.
Section 5.04. Statements to Certificateholders. On each Payment Date, the
Certificate Paying Agent shall make available electronically at
xxx.xxxxxxxx.xxx/xxx the statement or statements provided to the Owner Trustee
and the Certificate Paying Agent by the Master Servicer pursuant to Section 4.01
of the Servicing Agreement with respect to such Payment Date.
Section 5.05. Tax Reporting. So long as the Depositor or any affiliate of the
Depositor owns 100% of the Certificates (the "Original Certificateholder"), then
no separate federal and state income tax returns and information returns or
statements will be filed with respect to the Trust and a federal employer
identification number shall not be applied for from the IRS. If the Original
Certificateholder is no longer the sole Certificateholder and the Certificates
are held by the Original Certificateholder and one or more persons for federal
income tax purposes, the subsequent holders of the Certificates by their
acceptance hereof, agree to appoint the Original Certificateholder as their
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agent for the tax matters partner and the Original Certificateholder, as agent
for such holders, agrees to perform (itself or through its agent) all duties
necessary to comply with federal and state income tax laws including but not
limited to applying for a federal employer identification number and filing tax
returns.
Section 5.06. Derivative Contracts. (a) The Owner Trustee shall, at the
direction of the Master Servicer, on behalf of the Trust Estate, enter into
Derivative Contracts, solely for the benefit of the Certificateholder. Any such
Derivative Contract shall constitute a fully prepaid agreement. The Master
Servicer shall determine, in its sole discretion, whether any Derivative
Contract conforms to the requirements of Section 5.06(b) and (c). All
collections, proceeds and other amounts in respect of the Derivative Contracts
payable by the Derivative Counterparty shall be distributed to the
Certificateholder on the Payment Date following receipt thereof by the Owner
Trustee.
(b) Any Derivative Contract that provides for any payment obligation on the part
of the Trust Estate must (i) be without recourse to the assets of the Trust
Estate, (ii) contain a non-petition covenant provision from the Derivative
Counterparty, (iii) limit payment dates thereunder to Payment Dates and (iv)
contain a provision limiting any cash payment due to the Derivative Counterparty
on any day under such Derivative Contract solely to funds available therefor in
the Custodial Account available to make payment to the Certificateholder on such
Payment Date.
(c) Each Derivative Contract must (i) provide for the direct payment of any
amounts by the Derivative Counterparty thereunder to the Custodial Account at
least one Business Day prior to the related Payment Date, (ii) contain an
assignment of all of the Trust Estate rights (but none of its obligations) under
such Derivative Contract to the Owner Trustee on behalf of the Certificateholder
and shall include an express consent to the Derivative Counterparty to such
assignment, (iii) provide that in the event of the occurrence of a Servicer
Default, such Derivative Contract shall terminate upon the direction of a
majority Percentage Interest of the Owner Trust Certificates, and (iv) prohibit
the Derivative Counterparty from "setting-off" or "netting" other obligations of
the Trust Estate and its Affiliates against such Derivative Counterparty's
payment obligations thereunder.
(d) Notwithstanding the provisions of paragraphs (a), (b) and (c) of this
Section 5.06, no Derivative Contract shall (i) provide for the payment of any
amounts that would otherwise be payable to the Holders of any Class of Notes, or
(ii) materially adversely affect the rights of the Holders of any Class of
Notes.
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ARTICLE VI
Concerning the Owner Trustee
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Trust Agreement. The Owner Trustee
and the Certificate Paying Agent also agree to disburse all moneys actually
received by it constituting part of the Owner Trust Estate upon the terms of the
Basic Documents and this Trust Agreement. The Owner Trustee shall not be
answerable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct, negligence or bad
faith or negligent failure to act or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.03 expressly made by the Owner
Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) No provision of this Trust Agreement or any Basic Document shall require the
Owner Trustee to expend or risk funds or otherwise incur any financial liability
in the performance of any of its rights, duties or powers hereunder or under any
Basic Document if the Owner Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(b) Under no circumstances shall the Owner Trustee be liable for indebtedness
evidenced by or arising under any of the Basic Documents, including the
principal of and interest on the Notes;
(c) The Owner Trustee shall not be responsible for or in respect of the validity
or sufficiency of this Trust Agreement or for the due execution hereof by the
Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate, or for or in respect of the validity
or sufficiency of the Basic Documents, the Notes, the Certificates, other than
the certificate of authentication on the Certificates, if executed by the Owner
Trustee and the Owner Trustee shall in no event assume or incur any liability,
duty, or obligation to any Noteholder or to any Certificateholder, other than as
expressly provided for herein or expressly agreed to in the Basic Documents;
(d) The execution, delivery, authentication and performance by it of this Trust
Agreement will not require the authorization, consent or approval of, the giving
of notice to, the filing or registration with, or the taking of any other action
with respect to, any governmental authority or agency;
(e) The Owner Trustee shall not be liable for the default or misconduct of the
Depositor, the Indenture Trustee or the Master Servicer under any of the Basic
Documents or otherwise and the Owner Trustee shall have no obligation or
liability to perform the obligations of the Trust under this Trust Agreement or
the Basic Documents that are required to be performed by the Indenture Trustee
under the Indenture or the Seller under the Home Loan Purchase Agreement; and
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(f) The Owner Trustee shall be under no obligation to exercise any of the rights
or powers vested in it or duties imposed by this Trust Agreement, or to
institute, conduct or defend any litigation under this Trust Agreement or
otherwise or in relation to this Trust Agreement or any Basic Document, at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Trustee to
perform any discretionary act enumerated in this Trust Agreement or in any Basic
Document shall not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its negligence, bad faith or willful misconduct in the
performance of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish to the
Securityholders promptly upon receipt of a written reasonable request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Trust under the
Basic Documents.
Section 6.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in good
standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Trust Agreement;
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Trust Agreement, and this Trust Agreement
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will
contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any
judgment or order binding on it, or constitute any default under its
charter documents or bylaws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound;
(d) This Trust Agreement, assuming due authorization, execution and delivery
by the Owner Trustee and the Depositor, constitutes a valid, legal and
binding obligation of the Owner Trustee, enforceable against it in
accordance with the terms hereof subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(e) The Owner Trustee is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Owner Trustee or its properties or might
have consequences that would materially adversely affect its performance
hereunder; and
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(f) No litigation is pending or, to the best of the Owner Trustee's
knowledge, threatened against the Owner Trustee which would prohibit its
entering into this Trust Agreement or performing its obligations under
this Trust Agreement.
Section 6.04. Reliance; Advice of Counsel. (a) The Owner Trustee shall incur no
liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, 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 party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or other authorized officers of the relevant party, as to such fact or matter
and such certificate shall constitute full protection to the Owner Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in the
performance of its duties and obligations under this Trust Agreement or the
Basic Documents, the Owner Trustee (i) may act directly or through its agents,
attorneys, custodians or nominees (including persons acting under a power of
attorney) pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents,
attorneys, custodians or nominees (including persons acting under a power of
attorney) if such persons have been selected by the Owner Trustee with
reasonable care, and (ii) may consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it at the
expense of the Trust. The Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the opinion or advice
of any such counsel, accountants or other such Persons and not contrary to this
Trust Agreement or any Basic Document.
Section 6.05. Not Acting in Individual Capacity. Except as provided in this
Article VI, in accepting the trusts hereby created Wilmington Trust Company acts
solely as Owner Trustee hereunder and not in its individual capacity, and all
Persons having any claim against the Owner Trustee by reason of the transactions
contemplated by this Trust Agreement or any Basic Document shall look only to
the Owner Trust Estate for payment or satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates or Related Documents.
The recitals contained herein and in the Certificates (other than the signatures
of the Owner Trustee on the Certificates) shall be taken as the statements of
the Depositor, and the Owner Trustee assumes no responsibility for the
correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Trust Agreement, of any Basic Document or of the
Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents. The Owner Trustee shall
at no time have any responsibility or liability with respect to the sufficiency
of the Owner Trust Estate or its ability to generate the payments to be
19
distributed to Certificateholders under this Trust Agreement or the Noteholders
under the Indenture, including, the compliance by the Depositor or the Seller
with any warranty or representation made under any Basic Document or in any
related document or the accuracy of any such warranty or representation, or any
action of the Certificate Paying Agent, the Certificate Registrar or the
Indenture Trustee taken in the name of the Owner Trustee.
Section 6.07. Owner Trustee May Own Certificates and Notes. The Owner Trustee in
its individual or any other capacity may become the owner or pledgee of
Certificates or Notes and may deal with the Depositor, the Seller, the
Certificate Paying Agent, the Certificate Registrar and the Indenture Trustee in
transactions with the same rights as it would have if it were not Owner Trustee.
ARTICLE VII
Compensation of Owner Trustee
Section 7.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall receive
as compensation for its services hereunder such fees as have been separately
agreed upon before the date hereof, and the Owner Trustee shall be reimbursed
for its reasonable expenses hereunder and under the Basic Documents, including
the reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may reasonably employ
in connection with the exercise and performance of its rights and its duties
hereunder and under the Basic Documents which shall be payable by the Master
Servicer pursuant to Section 3.09 of the Servicing Agreement.
Section 7.02. Indemnification. The Master Servicer shall indemnify, defend and
hold harmless the Owner Trustee as provided in Section 6.06 of the Servicing
Agreement.
ARTICLE VIII
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement. (a) This Trust Agreement (other
than this Article VIII) and the Trust shall terminate and be of no further force
or effect upon the earliest of (i) the final distribution of all moneys or other
property or proceeds of the Owner Trust Estate in accordance with the terms of
the Indenture and this Trust Agreement, (ii) the Payment Date in September 2035,
or (iii) the purchase by the Master Servicer of all Home Loans pursuant to
Section 8.08(a) of the Servicing Agreement. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder shall not (x) operate
to terminate this Trust Agreement or the Trust or (y) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or the Owner Trust Estate or (z) otherwise affect the
rights, obligations and liabilities of the parties hereto.
20
(b) Except as provided in Section 8.01(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date upon
which Certificateholders shall surrender their Certificates to the Certificate
Paying Agent for payment of the final distribution and cancellation, shall be
given by the Certificate Paying Agent by letter to Certificateholders mailed
within five Business Days of receipt of notice of such termination from the
Owner Trustee, stating (i) the Payment Date upon or with respect to which final
payment of the Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Certificate Paying Agent therein designated,
(ii) the amount of any such final payment and (iii) that the Record Date
otherwise applicable to such Payment Date is not applicable, payments being made
only upon presentation and surrender of the Certificates at the office of the
Certificate Payment Agent therein specified. The Certificate Paying Agent shall
give such notice to the Owner Trustee and the Certificate Registrar at the time
such notice is given to Certificateholders. Upon presentation and surrender of
the Certificates, the Certificate Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Payment Date pursuant to
Section 5.01.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above mentioned written notice, the Certificate Paying Agent shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if within
one year following the Payment Date on which final payment of the Certificates
was to have been made pursuant to Section 3.10, all the Certificates shall not
have been surrendered for cancellation, the Certificate Paying Agent may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Trust Agreement. Any funds remaining in the Certificate
Distribution Account after exhaustion of such remedies shall be distributed by
the Certificate Paying Agent to the holder of the majority of the Certificate
Percentage Interest of the Certificates.
(d) Upon the winding up of the Trust and its termination, the Owner Trustee
shall cause the Certificate of Trust to be cancelled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810(c) of the Statutory Trust Statute.
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ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times be a corporation satisfying the provisions of Section 3807(a)
of the Statutory Trust Statute; authorized to exercise corporate trust powers;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authorities; and having (or
having a parent that has) long-term debt obligations with a rating of at least A
by Moody's and/or Standard & Poor's. If such corporation shall publish reports
of condition at least annually pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.01, the Owner
Trustee shall resign immediately in the manner and with the effect specified in
Section 9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at any time
resign and be discharged from the trusts hereby created by giving 30 days' prior
written notice thereof to the Depositor. Upon receiving such notice of
resignation, the Indenture Trustee 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 Indenture Trustee, 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 Indenture Trustee may remove the Owner
Trustee. If the Indenture Trustee shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Indenture Trustee 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 shall pay all fees owed
to the outgoing Owner Trustee. Any resignation or removal of the Owner Trustee
and appointment of a successor Owner Trustee pursuant to any of the provisions
of this Section shall not become effective until acceptance of appointment by
the successor Owner Trustee pursuant to Section 9.03 and payment of all fees and
expenses owed to the outgoing Owner Trustee.
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee appointed
pursuant to Section 9.02 shall execute, acknowledge and deliver to the Indenture
Trustee and to its predecessor Owner Trustee an instrument accepting such
appointment under this Trust Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective, and such successor
Owner Trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
under this Trust Agreement, with like effect as if originally named as Owner
Trustee. The predecessor Owner Trustee shall upon payment of its fees and
22
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Trust Agreement; and the predecessor Owner Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, the Indenture Trustee shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies. If the Indenture Trustee shall fail to mail such notice within 10 days
after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Indenture Trustee.
Section 9.04. Merger or Consolidation of Owner Trustee. Any Person into which
the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 9.05. Appointment of Co-Trustee or Separate Trustee. Notwithstanding any
other provisions of this Trust Agreement, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Owner Trust Estate may at the time be located, the Owner Trustee shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons to act as co-trustee, jointly with the Owner Trustee, or as separate
trustee or trustees, of all or any part of the Owner Trust Estate, and to vest
in such Person, in such capacity, such title to the Trust or any part thereof
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Owner Trustee may consider necessary or
desirable. No co-trustee or separate trustee under this Trust Agreement shall be
required to meet the terms of eligibility as a successor Owner Trustee pursuant
to Section 9.01 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
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(a) All rights, powers, duties and obligations conferred or imposed upon the
Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to
act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the Owner Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Owner Trustee;
(b) No trustee under this Trust Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Trust
Agreement;
(c) The Owner Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) All steps have been taken prior to any such appointment to perfect any
security interest granted pursuant to the Indenture.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Trust Agreement and the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Trust Agreement, specifically including every provision of this Trust
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Trust Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
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ARTICLE X
Miscellaneous
Section 10.01. Amendments. (a) This Trust Agreement may be amended from time to
time by the parties hereto as specified in this Section 10.01, provided that any
amendment, except as provided in subparagraph (e) below, be accompanied by an
Opinion of Counsel to the Owner Trustee to the effect that such amendment (i)
complies with the provisions of this Section and (ii) will not cause the Trust
to be subject to an entity level tax.
(b) If the purpose of the amendment (as detailed therein) is to correct any
mistake, eliminate any inconsistency, cure any ambiguity or deal with any matter
not covered (i.e., to give effect to the intent of the parties), it shall not be
necessary to obtain the consent of any Holders, but the Owner Trustee shall be
furnished with (A) a letter from the Rating Agencies that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to any
Security and (B) an Opinion of Counsel to the effect that such action will not
adversely affect in any material respect the interests of any Holders. (c) If
the purpose of the amendment is to prevent the imposition of any federal or
state taxes at any time that any Security is outstanding (i.e., technical in
nature), it shall not be necessary to obtain the consent of any Holder, but the
Owner Trustee shall be furnished with an Opinion of Counsel that such amendment
is necessary or helpful to prevent the imposition of such taxes and is not
materially adverse to any Holder.
(d) If the purpose of the amendment is to add or eliminate or change any
provision of the Trust Agreement other than as contemplated in (b) and (c)
above, the amendment shall require (A) an Opinion of Counsel to the effect that
such action will not adversely affect in any material respect the interests of
any Holders and (B) either (a) a letter from the Rating Agencies that the
amendment will not result in the downgrading or withdrawal of the rating then
assigned to any Security or (b) the consent of Holders of Certificates
evidencing a majority of the Certificate Percentage Interest of the Certificates
and the Indenture Trustee; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments received
that are required to be distributed on any Certificate without the consent of
the related Certificateholder, or (ii) reduce the aforesaid percentage of
Certificates the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all such Certificates then outstanding.
(e) If the purpose of the amendment is to provide for the holding of any of the
Certificates in book-entry form, it shall require the consent of Holders of all
such Certificates then outstanding; provided, that the Opinion of Counsel
specified in subparagraph (a) above shall not be required.
(f) If the purpose of the amendment is to provide for the issuance of additional
certificates representing an interest in the Trust, it shall not be necessary to
obtain the consent of any Holder, but the Owner Trustee shall be furnished with
(A) an Opinion of Counsel to the effect that such action will not adversely
affect in any material respect the interests of any Holders and (B) a letter
from the Rating Agencies that the amendment will not result in the downgrading
or withdrawal of the rating then assigned to any Security.
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(g) 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 each Certificateholder, the Indenture Trustee and each of the Rating
Agencies. It shall not be necessary for the consent of Certificateholders or the
Indenture Trustee pursuant to this Section 10.01 to approve the particular form
of any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Trust Agreement or
in any other Basic Document) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any agreement to which
the Trust is a party, other than this Trust Agreement, the Owner Trustee shall
be entitled to receive and conclusively rely upon an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the documents subject
to such amendment and that all conditions precedent in the Basic Documents for
the execution and delivery thereof by the Trust or the Owner Trustee, as the
case may be, have been satisfied.
(i) Any amendment to this Trust Agreement affecting the rights, duties and
obligations of the Indenture Trustee, Certificate Registrar or the Certificate
Paying Agent shall be consented to by such party and such party shall be an
addressee on any Opinion of Counsel and receive any rating letter provided in
connection therewith.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State of the State of Delaware.
Section 10.02. No Legal Title to Owner Trust Estate. The Certificateholders
shall not have legal title to any part of the Owner Trust Estate. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided beneficial interest therein only in accordance with Articles V
and VIII. No transfer, by operation of law or otherwise, of any right, title or
interest of the Certificateholders to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Trust Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Owner Trust Estate.
Section 10.03. Limitations on Rights of Others. Except for Section 2.07, the
provisions of this Trust Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Certificateholders and, to the extent expressly
provided herein, the Indenture Trustee and the Noteholders, and nothing in this
Trust Agreement (other than Section 2.07), whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of this Trust Agreement
or any covenants, conditions or provisions contained herein.
26
Section 10.04. Notices. (a) Unless otherwise expressly specified or permitted by
the terms hereof, all notices shall be in writing and shall be deemed given upon
receipt, if to the Owner Trustee, addressed to Wilmington Trust Company,
Corporate Trust Administration, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration; if to the
Indenture Trustee, addressed to JPMorgan Chase Bank, N.A., 4 New York Plaza, 6th
Floor, New York, New York 10004, Attention: Worldwide Securities Services/Global
Debt Home Loan Trust 2005-HI3, if to the Depositor, addressed to Residential
Funding Mortgage Securities II, Inc., 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxxx 00000; if to the Rating Agencies, addressed to Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
and Standard & Poor's, 00 Xxxxx Xxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Structured Finance Department - MBS or, as to each party, at such
other address as shall be designated by such party in a written notice to each
other party.
(b) Any notice required or permitted to be given to a Certificateholder shall be
given by first-class mail, postage prepaid, at the address of such Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Trust Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
(c) A copy of any notice delivered to the Owner Trustee or the Trust shall also
be delivered to the Depositor.
Section 10.05. Severability. Any provision of this Trust Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.06. Separate Counterparts. This Trust Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 10.07. Successors and Assigns. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, each of the Depositor, the Owner Trustee and its successors and
each Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or
action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
Section 10.08. No Petition. The Owner Trustee, by entering into this Trust
Agreement and each Certificateholder, by accepting a Certificate, hereby
covenant and agree that they will not at any time institute against the
Depositor or the Trust, or join in any institution against the Depositor or the
Trust of, any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations with respect to the
Certificates, the Notes, this Trust Agreement or any of the Basic Documents.
27
Section 10.09. No Recourse. Each Certificateholder by accepting a Certificate
acknowledges that such Certificateholder's Certificates represent beneficial
interests in the Trust only and do not represent interests in or obligations of
the Depositor, the Seller, the Owner Trustee, the Indenture Trustee or any
Affiliate thereof and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Trust
Agreement, the Certificates or the Basic Documents.
Section 10.10. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. Integration. This Trust Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understanding pertaining thereto.
28
IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee, except with respect
to the representations and
warranties contained in Section 6.03
hereof,
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Financial Services Officer
Acknowledged and Agreed:
JPMORGAN CHASE BANK, N.A.
as Indenture Trustee, Certificate Registrar
and Certificate Paying Agent
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
EXHIBIT A
FORM OF HOME LOAN BACKED CERTIFICATE
THIS CERTIFICATE (THE "CERTIFICATE") IS SUBORDINATED IN RIGHT OF PAYMENT
TO THE NOTES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT UPON SATISFACTION OF THE
CONDITIONS IN SECTION 3.05 OF THE AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.05 OF THE AMENDED AND RESTATED TRUST
AGREEMENT ("THE AGREEMENT").
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (I) A CERTIFICATION IN THE FORM OF EXHIBIT
G TO THE AGREEMENT FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN SUBJECT TO THE
PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") (EACH, A "PLAN"), ANY PERSON ACTING, DIRECTLY OR
INDIRECTLY, ON BEHALF OF ANY PLAN OR ANY PERSON USING "PLAN ASSETS" OF ANY PLAN,
WITHIN THE MEANING OF THE U.S. DEPARTMENT OF LABOR REGULATION PROMULGATED AT 29
C.F.R. SS.2510.3-101, TO ACQUIRE THIS CERTIFICATE (COLLECTIVELY A "PLAN
INVESTOR"), OR (II) IF THIS CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PLAN INVESTOR, AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND
SUBSTANCE SATISFACTORY TO THE COMPANY, THE OWNER TRUSTEE, THE CERTIFICATE
REGISTRAR AND THE MASTER SERVICER, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF
THIS CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) AND WILL NOT
SUBJECT THE COMPANY, THE OWNER TRUSTEE, THE MASTER SERVICER OR THE CERTIFICATE
REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE COMPANY, THE
OWNER TRUSTEE, THE CERTIFICATE REGISTRAR OR THE MASTER SERVICER.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
SELLER, THE COMPANY, THE MASTER SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN
THE AGREEMENT OR THE BASIC DOCUMENTS.
Certificate No. ____ Assumed Final Payment Date:
September 25, 2035
Cut-off Date: Certificate Percentage Interest of
October 1, 2005 this Certificate: [___]%
Date of Amended and
Restated Trust Agreement:
October 27, 2005
First Payment Date:
November 25, 2005
HOME LOAN-BACKED CERTIFICATE
SERIES 2005-HI3
Evidencing a 100% interest in the Trust Estate, the property of which
consists primarily of the Home Loans, created by RESIDENTIAL FUNDING MORTGAGE
SECURITIES II, INC. (hereinafter called the "Company," which term includes any
successor entity under the Agreement referred to below).
This Certificate is payable solely from the assets of the Trust Estate,
and does not represent an obligation of or interest in the Company, the Seller,
the Master Servicer, the Indenture Trustee, the Owner Trustee or any of their
affiliates. This Certificate, is not guaranteed or insured by any governmental
agency or instrumentality or by the Company, the Seller, the Master Servicer,
the Indenture Trustee, the Owner Trustee or any of their affiliates. None of the
Company, the Seller, the Master Servicer, the Indenture Trustee, the Owner
Trustee or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that [name of Holder] is the registered owner of the
Certificate Percentage Interest evidenced by this Certificate (as set forth on
the face hereof) in certain distributions with respect to the Trust Estate,
consisting primarily of the Home Loans, created by Residential Funding Mortgage
Securities II, Inc. The Trust (as defined herein) was created pursuant to a
Trust Agreement, dated as of October 27, 2005 and an Amended and Restated Trust
Agreement, dated as specified above (as amended and supplemented from time to
time, the "Agreement") between the Company and Wilmington Trust Company, as
owner trustee (the "Owner Trustee," which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Payment Date"), commencing on the first
Payment Date specified above, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is not
a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution (the "Record Date"),
in an amount equal to the pro rata portion evidenced by this Certificate (based
on the Certificate Percentage Interest stated on the face hereon) of the
Certificate Distribution Amount, if any, required to be distributed to Holder of
Certificate on such Payment Date. Distributions on this Certificate will be made
as provided in the Agreement by the Certificate Paying Agent by wire transfer or
check mailed to the Certificateholder of record in the Certificate Register
without the presentation or surrender of this Certificate or the making of any
notation hereon.
Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Certificate Paying Agent of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose in the City and State
of New York.
No transfer of this Certificate will be made unless such transfer is
exempt from the registration requirements of the Securities Act of 1933, as
amended, and any applicable state securities laws or is made in accordance with
said Act and laws. In the event that such a transfer is to be made, the
Certificate Registrar or the Company shall require either (i) an opinion of
counsel acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Company that such transfer is exempt (describing the
applicable exemption and the basis therefor) from or is being made pursuant to
the registration requirements of the Securities Act of 1933, as amended, and of
any applicable statute of any state or (ii) an investment letter executed by the
Transferee in the form described in the Agreement and which investment letter or
Opinion of Counsel shall not be at the expense of the Trust, the Owner Trustee,
the Indenture Trustee, the Certificate Registrar or the Company. The Holder
hereof desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trust, the Owner Trustee, the Company, the Master Servicer, the
Indenture Trustee and the Certificate Registrar against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws. In connection with any such transfer, the Certificate
Registrar (unless otherwise directed by the Company) will also require either
(i) a representation letter, in the form of Exhibit G to the Agreement, to the
effect that the transferee is not an employee benefit or other plan subject to
the prohibited transaction provisions of ERISA or Section 4975 of the Code
(each, a "Plan"), any Person acting, directly or indirectly, on behalf of any
such Plan or any Person using "plan assets" of any such Plan, within the meaning
of the Department of Labor regulations promulgated at 29 C.F.R. ss.2510.3-101,
to acquire the Certificates (collectively, a "Plan Investor") or (ii) if such
transferee is a Plan Investor, an opinion of counsel acceptable to and in form
and substance satisfactory to the Company, the Owner Trustee, the Master
Servicer and the Certificate Registrar, to the effect that the purchase or
holding of the Certificate is permissible under applicable law, will not
constitute or result in a prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent enactments)
and will not subject the Company, the Owner Trustee, the Master Servicer or the
Certificate Registrar to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Agreement, which opinion of counsel shall not be an expense of
the Company, the Owner Trustee, the Master Servicer or the Certificate
Registrar.
In addition, no transfer of a Certificate shall be permitted, and no
such transfer shall be registered by the Certificate Registrar or be effective
hereunder, unless evidenced by an Opinion of Counsel which establishes that such
transfer or the registration of such transfer would not cause the Trust to be
classified as a publicly traded partnership, an association taxable as a
corporation, a corporation or a taxable mortgage pool for federal and relevant
state income tax purposes, which Opinion of Counsel shall not be an expense of
the Certificate Registrar and shall be an expense of the proposed transferee. No
Opinion of Counsel will be required if such transfer is made to a nominee of an
existing beneficial holder of a Certificate.
This Certificate is issued pursuant to a duly authorized issue of
Certificate designated as Home Loan-Backed Certificate of the Series specified
hereon. All terms used in this Certificate which are defined in the Agreement
shall have the meanings assigned to them in the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Distribution
Account that have been released from the Lien of the Indenture for payment
hereunder and that neither the Owner Trustee in its individual capacity nor the
Company is personally liable to the Certificateholder for any amount payable
under this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
The Holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Indenture, dated as of October 27,
2005 between Home Loan Trust 2005-HI3 (the "Trust") and JPMorgan Chase Bank,
N.A., as Indenture Trustee (the "Indenture").
The Certificateholder, by its acceptance of this Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Company, or join in any institution against the Company 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 Certificate, the
Notes, the Agreement or any of the Basic Documents.
The Agreement permits the amendment thereof as specified below, provided
that any amendment be accompanied by an Opinion of Counsel to the Owner Trustee
to the effect that such amendment complies with the provisions of the Agreement
and will 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 Holder, but the Owner Trustee shall be
furnished with a letter from the Rating Agencies that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to any
Security. If the purpose of the amendment is to prevent the imposition of any
federal or state taxes at any time that any Security is outstanding, it shall
not be necessary to obtain the consent of the Holder, but the Owner Trustee
shall be furnished with an Opinion of Counsel that such amendment is necessary
or helpful to prevent the imposition of such taxes and is not materially adverse
to the Holder. 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 two
sentences, the amendment shall require an Opinion of counsel to the effect that
such action will not adversely affect in any material respect the interests of
any Holders and either (a) a letter from the Rating Agencies that the amendment
will not result in the downgrading or withdrawal of the rating then assigned to
any Security, or (b) the consent of the Certificateholder and the Indenture
Trustee; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the time of, payments received that are required
to be distributed on the Certificate without the consent of the
Certificateholder, or (ii) reduce the aforesaid percentage of the Certificate
without the consent of the Holder of the Certificate.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies of the Certificate Registrar maintained in the City and
State of New York, accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same Class and aggregate
Certificate Percentage Interest will be issued to the designated transferee. The
initial Certificate Registrar appointed under the Agreement is the Indenture
Trustee.
The Certificate is issuable only in minimum denominations of a 100%
Certificate Percentage Interest.
The Certificate is intended to be a certificated security under Article
8 of the UCC of the State of New York and under the corresponding provisions of
the UCC of any other State that may be applicable.
No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or governmental charge payable in
connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Paying Agent, the Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of Delaware.
The obligations created by the Agreement in respect of the Certificate
and the Trust created thereby shall terminate upon the earliest of (i) the final
distribution of all moneys or other property or proceeds of the Trust Estate in
accordance with the terms of the Indenture and the Agreement, (ii) the Payment
Date in September 2035 or (iii) the purchase by the Master Servicer of all the
Home Loans pursuant to Section 8.08(a) of the Servicing Agreement.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, or an authenticating agent by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
HOME LOAN TRUST 2005-HI3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
Dated: __________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ______________________________
Authorized Signatory
or ______________________________,
as Authenticating Agent of the Trust
By: ______________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
-----------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
-----------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
-----------------------------------------------------------------------------
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:_____________________
_________________________________*/
Signature Guaranteed:
____________________*/
-------------
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available
funds to ______________________ for the account of ______________________,
account number ______________, or, if mailed by check, to
_______________________.
Applicable statements should be mailed to __________________.
------------------------------
Signature of assignee or agent
(for authorization of wire transfer only)
EXHIBIT B
TO THE TRUST AGREEMENT
CERTIFICATE OF TRUST
OF
HOME LOAN TRUST 2005-HI3
THIS Certificate of Trust of HOME LOAN TRUST 2005-HI3 (the "Trust") is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a statutory trust under the Delaware Statutory Trust Act (12
Del. C. ss. 3801 et seq.) (the "Act"). ---
1 Name. The name of the statutory trust formed by this Certificate of
Trust is HOME LOAN TRUST 2005-HI3.
2 .Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware are ________________, __________________,
______________, Delaware ___________.
3 Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
[NAME OF OWNER TRUSTEE],
not in its individual capacity
but solely as Owner Trustee
By:..............................
Name: Title:
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including
numbers:
============================================
============================================
The undersigned seller, as registered holder (the "Seller"),
intends to transfer the Rule 144A Securities described above to the undersigned
buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the
Seller hereby certifies the following facts: Neither the Seller nor
anyone acting on its behalf has offered, transferred, pledged, sold or
otherwise disposed of the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security to, or solicited any offer
to buy or accept a transfer, pledge or other disposition of the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached or negotiated with
respect to the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security with, any person in any manner,
or made any general solicitation by means of general advertising or in
any other manner, or taken any other action, that would constitute a
distribution of the Rule 144A Securities under the Securities Act of
1933, as amended (the "1933 Act"), or that would render the disposition
of the Rule 144A Securities a violation of Section 5 of the 1933 Act or
require registration pursuant thereto, and that the Seller has not
offered the Rule 144A Securities to any person other than the Buyer or
another "qualified institutional buyer" as defined in Rule 144A under
the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the
Owner Trustee and the Depositor (as defined in the Amended and Restated
Trust Agreement (the "Agreement"), dated as of October 27, 2005 between
Residential Funding Mortgage Securities II, Inc., as Depositor and
Wilmington Trust Company as Owner Trustee pursuant to Section 3.05 of
the Agreement and JPMorgan Chase Bank, N.A. as indenture trustee, as
follows:
a. The Buyer understands that the Rule 144A Securities have not
been registered under the 1933 Act or the securities laws of any state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and
risks of investment in the Rule 144A Securities.
c. The Buyer has been furnished with all information regarding
the Rule 144A Securities that it has requested from the Seller, the
Indenture Trustee, the Owner Trustee or the Master Servicer.
d. Neither the Buyer nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A
Securities, any interest in the Rule144A Securities or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Rule 144A Securities, any interest in the
Rule 144A Securities or any other similar security from, or otherwise
approached or negotiated with respect to the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security with,
any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action,
that would constitute a distribution of the Rule 144A Securities under
the 1933 Act or that would render the disposition of the Rule 144A
Securities a violation of Section 5 of the 1933 Act or require
registration pursuant thereto, nor will it act, nor has it authorized or
will it authorize any person to act, in such manner with respect to the
Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term is
defined in Rule144A under the 1933 Act and has completed either of the
forms of certification to that effect attached hereto as Annex 1 or
Annex 2. The Buyer is aware that the sale to it is being made in
reliance on Rule 144A. The Buyer is acquiring the Rule 144A Securities
for its own account or the accounts of other qualified institutional
buyers, understands that such Rule144A Securities may be resold, pledged
or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
1933 Act.
3. The Buyer represents that:
(i) either (a) or (b) is satisfied, as marked below:
____ a. The Buyer is not an employee benefit or other plan
subject to the prohibited transaction provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986 (the "Code") (each, a "Plan"), a Person acting,
directly or indirectly, on behalf of any Plan or any Person using "plan assets"
of a Plan, within the meaning of the U.S. Department of Labor regulation
promulgated at 29 C.F.R. ss.2510.3-101 to acquire the Certificates and will
provide a certification in the form of Exhibit G to the Trust Agreement to that
effect; or
____ b. The Buyer will provide the Depositor, the Owner Trustee,
the Certificate Registrar and the Master Servicer with an opinion of counsel,
acceptable to and in form and substance satisfactory to the Depositor, the Owner
Trustee, the Certificate Registrar and the Master Servicer, to the effect that
the purchase and holding of a Certificate by or on behalf of the Buyer is
permissible under applicable law, will not constitute or result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments) and will not subject the
Depositor, the Owner Trustee, the Certificate Registrar or the Master Servicer
to any obligation or liability (including liabilities under ERISA or Section
4975 of the Code) in addition to those undertaken in the Trust Agreement, which
opinion of counsel shall not be an expense of the Depositor, the Owner Trustee,
the Certificate Registrar or the Master Servicer; and
(ii) the Buyer is familiar with the prohibited transaction restrictions
and fiduciary responsibility requirements of Sections 406 and 407 of
ERISA and Section 4975 of the Code and understands that each of the
parties to which this certification is made is relying and will continue
to rely on the statements made in this paragraph 3.
4. This document may be executed in one or more counterparts and
by the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this
document as of the date set forth below.
----------------------------- ---------------------------------
Print Name of Seller Print Name of Buyer
By: _________________________ By: ____________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. ______________________ No. _________________________
Date: ______________________ Date: __________________________
ANNEX 1 TO
EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a
discretionary basis $__________________(1) in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii)
the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution),
Massachusetts or similar statutory trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ State or Local Plan. The Buyer is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality of
the State or its political subdivisions, for the benefit of its
employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
---------------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
___ Investment Adviser. The Buyer is an investment adviser registered under
the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers Act
of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees, or (b) employee benefit plans within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, but is not a trust fund that includes as participants individual
retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part of
an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Rule 144A
Securities are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer may be in reliance on Rule 144A.
___ ___ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for the
account of a third party (including any separate account) in reliance on Rule
144A, the Buyer will only purchase for the account of a third party that at the
time is a "qualified institutional buyer" within the meaning of Rule 144A. In
addition, the Buyer agrees that the Buyer will not purchase securities for a
third party unless the Buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice is given, the Buyer's purchase of Rule 144A Securities will constitute a
reaffirmation of this certification as of the date of such purchase.
___________________________________
Print Name of Buyer
By:_____________________________
Name: Title:
Date: __________________________
ANNEX 2 TO
EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with
the Rule 144A Investment Representation to which this Certification is attached:
1......As indicated below, the undersigned is the President,
Chief Financial Officer or Senior Vice President of the Buyer or, if the Buyer
is a "qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2......In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used.
____ The Buyer owned $___________________ in securities (other than
the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3......The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4......The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and certificates
of deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
5......The Buyer is familiar with Rule 144A and understands that
each of the parties to which this certification is made are relying and will
continue to rely on the statements made herein because one or more sales to the
Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer's own account.
6......The undersigned will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
------------------------------
Print Name of Buyer
By: __________________________
Name:
Title:
IF AN ADVISER:
-----------------------------
Print Name of Buyer
Date: _______________________
EXHIBIT D
FORM OF INVESTOR REPRESENTATION LETTER
___________, 20__
Residential Funding Mortgage Securities II, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
JPMorgan Chase Bank, N.A.
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Capital Markets Fiduciary Services
Re: Home Loan-Backed Certificates
Series 2005-HI3 ________
Ladies and Gentlemen:
__________________ (the "Purchaser") intends to purchase from
(the "Seller") a ___% Certificate Percentage Interest of Certificates of Series
2005-HI3 (the "Certificates"), issued pursuant to the Amended and Restated Trust
Agreement (the "Trust Agreement"), dated as of October 27, 2005 between
Residential Funding Mortgage Securities II, Inc. as depositor (the "Company")
and Wilmington Trust Company, as owner trustee (the "Owner Trustee"), as
acknowledged and agreed by JPMorgan Chase Bank, N.A. as Certificate Registrar.
All terms used herein and not otherwise defined shall have the meanings set
forth in the Trust Agreement. The Purchaser hereby certifies, represents and
warrants to, and covenants with, the Company and the Certificate Registrar that:
1. The Purchaser understands that (a) the Certificates have not
been and will not be registered or qualified under the Securities Act of
1933, as amended (the "Act") or any state securities law, (b) the
Company is not required to so register or qualify the Certificates, (c)
the Certificates may be resold only if registered and qualified pursuant
to the provisions of the Act or any state securities law, or if an
exemption from such registration and qualification is available, (d) the
Trust Agreement contains restrictions regarding the transfer of the
Certificates and (e) the Certificates will bear a legend to the
foregoing effect.
2. The Purchaser is acquiring the Certificates for its own
account for investment only and not with a view to or for sale in
connection with any distribution thereof in any manner that would
violate the Act or any applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated
institutional investor having such knowledge and experience in financial
and business matters, and, in particular, in such matters related to
securities similar to the Certificates, such that it is capable of
evaluating the merits and risks of investment in the Certificates, (b)
able to bear the economic risks of such an investment and (c) an
"accredited investor" within the meaning of Rule 501(a) promulgated
pursuant to the Act.
4. The Purchaser has been furnished with, and has had an
opportunity to review (a) [a copy of the Private Placement Memorandum,
dated ___________, 20__, relating to the Certificates (b)] a copy of the
Trust Agreement and [b] [c] such other information concerning the
Certificates, the Home Loans and the Company as has been requested by
the Purchaser from the Company or the Seller and is relevant to the
Purchaser's decision to purchase the Certificates. The Purchaser has had
any questions arising from such review answered by the Company or the
Seller to the satisfaction of the Purchaser. [If the Purchaser did not
purchase the Certificates from the Seller in connection with the initial
distribution of the Certificates and was provided with a copy of the
Private Placement Memorandum (the "Memorandum") relating to the original
sale (the "Original Sale") of the Certificates by the Company, the
Purchaser acknowledges that such Memorandum was provided to it by the
Seller, that the Memorandum was prepared by the Company solely for use
in connection with the Original Sale and the Company did not participate
in or facilitate in any way the purchase of the Certificates by the
Purchaser from the Seller, and the Purchaser agrees that it will look
solely to the Seller and not to the Company with respect to any damage,
liability, claim or expense arising out of, resulting from or in
connection with (a) error or omission, or alleged error or omission,
contained in the Memorandum, or (b) any information, development or
event arising after the date of the Memorandum.]
5. The Purchaser has not and will not nor has it authorized or
will it authorize any person to (a) offer, pledge, sell, dispose of or
otherwise transfer any Certificate, any interest in any Certificate or
any other similar security to any person in any manner, (b) solicit any
offer to buy or to accept a pledge, disposition of other transfer of any
Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) otherwise approach or
negotiate with respect to any Certificate, any interest in any
Certificate or any other similar security with any person in any manner,
(d) make any general solicitation by means of general advertising or in
any other manner or (e) take any other action, that (as to any of (a)
through (e) above) would constitute a distribution of any Certificate
under the Act, that would render the disposition of any Certificate a
violation of Section 5 of the Act or any state securities law, or that
would require registration or qualification pursuant thereto. The
Purchaser will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Trust Agreement.
6. The Purchaser represents:
(i) that either (a) or (b) is satisfied, as marked below:
____...a. The Purchaser is not an employee benefit or other plan
subject to the prohibited transaction provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986 (the "Code") (each, a "Plan"), a Person acting,
directly or indirectly, on behalf of any Plan or any Person using "plan assets"
of a Plan, within the meaning of the U.S. Department of Labor regulation
promulgated at 29 C.F.R. ss.2510.3-101, to acquire the Certificates and will
provide a certification in the form of Exhibit G to the Trust Agreement to that
effect; or
____...b. The Purchaser will provide the Depositor, the Owner
Trustee, the Certificate Registrar and the Master Servicer with an opinion of
counsel, acceptable to and in form and substance satisfactory to the Depositor,
the Owner Trustee, the Certificate Registrar and the Master Servicer, to the
effect that the purchase and holding of a Certificate by or on behalf of the
Buyer is permissible under applicable law, will not constitute or result in a
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
(or comparable provisions of any subsequent enactments) and will not subject the
Depositor, the Owner Trustee, the Certificate Registrar or the Master Servicer
to any obligation or liability (including liabilities under ERISA or Section
4975 of the Code) in addition to those undertaken in the Trust Agreement, which
opinion of counsel shall not be an expense of the Depositor, the Owner Trustee,
the Certificate Registrar or the Master Servicer; and
(ii) the Purchaser is familiar with the prohibited transaction restrictions and
fiduciary responsibility requirements of Sections 406 and 407 of ERISA and
Section 4975 of the Code and understands that each of the parties to which this
certification is made is relying and will continue to rely on the statements
made in this paragraph 6.
7. The Purchaser is acquiring the Certificate for its own behalf
and is not acting as agent or custodian for any other person or entity
in connection with such acquisition;
8. The Purchaser is not a non-United States person for federal
income tax purposes.
Very truly yours,
__________________________________
By: _____________________________
Name:
Title:
EXHIBIT E
FORM OF TRANSFEROR REPRESENTATION LETTER
__________, 20__
Residential Funding Mortgage Securities II, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
JPMorgan Chase Bank, N.A.
4 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Markets Fiduciary Services
Re: Home Loan-Backed Certificates
Series 2005-HI3
Ladies and Gentlemen:
____________________ (the "Purchaser") intends to purchase from
(the "Seller") a ___% Certificate Percentage Interest of Certificates of Series
2005-HI3 (the "Certificates"), issued pursuant to the Amended and Restated Trust
Agreement (the "Trust Agreement"), dated as of October 27, 2005 between
Residential Funding Mortgage Securities II, Inc. as depositor (the "Company")
and Wilmington Trust Company, as owner trustee (the "Owner Trustee"), as
acknowledged and agreed by JPMorgan Chase Bank, N.A. as Certificate Registrar.
All terms used herein and not otherwise defined shall have the meanings set
forth in the Trust Agreement. The Seller hereby certifies, represents and
warrants to, and covenants with, the Company and the Certificate Registrar that:
Neither the Seller nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred the Certificate,
any interest in the Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of the Certificate, any interest in the
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to the Certificate, any interest
in the Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, or (e) has taken any other action, that (as to any of (a) through
(e) above) would constitute a distribution of the Certificates under the
Securities Act of 1933 (the "Act"), that would render the disposition of the
Certificate a violation of Section 5 of the Act or any state securities law, or
that would require registration or qualification pursuant thereto. The Seller
will not act, in any manner set forth in the foregoing sentence with respect to
the Certificate. The Seller has not and will not sell or otherwise transfer any
of the Certificates, except in compliance with the provisions of the Trust
Agreement.
Very truly yours,
------------------------------------
(Seller)
By: ...............................
Name:
Title:
EXHIBIT F
CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status ("certificate") is delivered
pursuant to Section 3.05 of the Amended and Restated Trust Agreement, dated as
of October 27, 2005 (the "Trust Agreement"), between Residential Funding
Mortgage Securities II, Inc., as depositor and Wilmington Trust Company, as
Owner Trustee, in connection with the acquisition of, transfer to or possession
by the undersigned, whether as beneficial owner (the "Beneficial Owner"), or
nominee on behalf of the Beneficial Owner of the Residential Home Loan-Backed
Certificates, Series 2005-HI3 (the "Certificate"). Capitalized terms used but
not defined in this certificate have the respective meanings given them in the
Trust Agreement.
Each holder must complete Part I, Part II (if the holder is a nominee),
and in all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form
W-9 relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446
of the Internal Revenue Code (relating to withholding tax on foreign
shareholders and partners) do not apply in respect of the Certificate held by
the undersigned, the undersigned hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is) not a non-resident alien
for purposes of U.S. income taxation;
2. My (The Beneficial Owner's) name and home address are:
=============================
_____________________________; and
3. My (The Beneficial Owner's) U.S. taxpayer identification
number (Social Security Number) is _______________.
B. Corporate, Partnership or Other Entity as Beneficial Owner
1. (Name of the Beneficial Owner) is not a foreign
corporation, foreign partnership, foreign trust or foreign
estate (as those terms are defined in the Code and
Treasury Regulations;
2. The Beneficial Owner's office address and place of
incorporation (if applicable) is ______________; and
3. The Beneficial Owner's U.S. employer identification number
is ______________.
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this certificate has been made in reliance upon
information contained in:
_____ an IRS Form W-9
_____ a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that the
form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees to
notify the Trust within sixty (60) days of the date that the Beneficial Owner
becomes a foreign person. The undersigned understands that this certificate may
be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or both.
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct and
complete and will further declare that I will inform the Trust of any change in
the information provided above, and, if applicable, I further declare that I
have the authority* to sign this document.
------------------------
Name
------------------------
Title (if applicable)
------------------------
Signature and Date
*NOTE: If signed pursuant to a power of attorney, the power of attorney must
accompany this certificate.
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
_____________, 20__
Residential Funding Mortgage Securities II, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
[CERTIFICATE REGISTRAR]
Re: Residential Funding Mortgage Securities II, Inc.
Home Loan-Backed Certificates, Series 2005-HI3
Dear Sirs:
__________________________________ (the "Transferee") intends to
acquire from _____________________ (the "Transferor") a ___% Certificate
Percentage Interest of Residential Mortgage Securities II, Inc. Home Loan-Backed
Certificates, Series 2005-HI3 (the "Certificates"), issued pursuant to an
Amended and Restated Trust Agreement (the "Trust Agreement") dated October 27,
2005 among Residential Funding Mortgage Securities II, Inc., as depositor (the
"Depositor") and Wilmington Trust Company, as trustee (the "Owner Trustee").
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned thereto in the Trust Agreement.
The Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Owner Trustee, the Certificate Registrar and
the Master Servicer that:
(1) The Certificates (i) are not being acquired by, and will not
be transferred to, any employee benefit plan within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") or other retirement arrangement, including individual
retirement accounts and annuities, Xxxxx plans and bank collective
investment funds and insurance company general or separate accounts in
which such plans, accounts or arrangements are invested, that is subject
to Section 406 of ERISA or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code") (any of the foregoing, a "Plan"), (ii) are
not being acquired with "plan assets" of a Plan within the meaning of
the U.S. Department of Labor ("DOL") regulation promulgated at 29 C.F.R.
ss. 2510.3-101, and (iii) will not be transferred to any Plan or any
entity that is deemed to be investing in "plan assets" of a Plan within
the meaning of the DOL regulation promulgated at 29 C.F.R. ss.
2510.3-101; and (2) the Transferee is familiar with the prohibited
transaction restrictions and fiduciary responsibility requirements of
Sections 406 and 407 of ERISA and Section 4975 of the Code and
understands that each of the parties to which this certification is made
is relying and will continue to rely on the statements made herein.
Very truly yours,
-----------------------------------
By: ..............................
Name:
Title:
