RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
_________________________________________
AMENDED AND RESTATED TRUST AGREEMENT
Dated as of February 27, 2007
__________________________________________
Home Equity Loan-Backed Certificates,
Series 2007-HSA1
Table of Contents
Section
Page
ARTICLE 1
Definitions
Section 1.01. Definitions...............................................................1
Section 1.02. Other Definitional Provisions.............................................1
ARTICLE II
Organization
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 Owner Trust Estate........................3
Section 2.06. Declaration of Trust......................................................3
Section 2.07. Liability of the Holders of the Certificates..............................4
Section 2.08. Title to Trust Property...................................................4
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 Equity Loans; Certificates
Section 3.01. Conveyance of The Home Equity Loans.......................................5
Section 3.02. Initial Ownership.........................................................6
Section 3.03. The Certificates..........................................................6
Section 3.04. Authentication of Certificates............................................6
Section 3.05. Registration of and Limitations on Transfer And Exchange of
Certificates..............................................................7
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates.........................9
Section 3.07. Persons Deemed Certificateholders........................................10
Section 3.08. Access to List of Certificateholders' Names And Addresses................10
Section 3.09. Maintenance of Office or Agency..........................................10
Section 3.10. Certificate Paying Agent.................................................10
Section 3.11. Cooperation..............................................................12
Section 3.12. Additional Certificate Security Balances Upon Issuance of Capped
Funding Notes............................................................12
Section 3.13. Subordination............................................................13
Section 3.14. No Priority Among Certificates...........................................13
ARTICLE IV
Authority And Duties Of Owner Trustee
Section 4.01. General Authority........................................................13
Section 4.02. General Duties...........................................................13
Section 4.03. Action Upon Instruction..................................................13
Section 4.04. No Duties Except as Specified Under Specified Documents or In
Instructions.............................................................14
Section 4.05. Restrictions.............................................................14
Section 4.06. Prior Notice To Certificateholders and The Credit Enhancer With
Respect To Certain Matters...............................................15
Section 4.07. Action by Certificateholders with Respect to Certain Matters.............15
Section 4.08. Action By Certificateholders with Respect to Bankruptcy..................15
Section 4.09. Restrictions on Certificateholders' Power................................16
Section 4.10. Majority Control.........................................................16
Section 4.11. Doing Business In Other Jurisdictions....................................16
Section 4.12. Removal of Home Equity Loans.............................................16
ARTICLE V
Application Of Trust Funds
Section 5.01. Distributions............................................................17
Section 5.02. Method Of Payment........................................................17
Section 5.03. Signature On Returns.....................................................17
Section 5.04. Statements To Certificateholders.........................................17
Section 5.05. Tax Reporting............................................................17
Section 5.06. Reports to the Master Servicer...........................................18
ARTICLE VI
Concerning The Owner Trustee
Section 6.01. Acceptance of Trusts And Duties..........................................18
Section 6.02. Furnishing of Documents..................................................19
Section 6.03. Representations and Warranties...........................................19
Section 6.04. Reliance; Advice of Counsel..............................................20
Section 6.05. Not Acting in Individual Capacity........................................21
Section 6.06. Owner Trustee Not Liable for Certificates or Related Documents...........21
Section 6.07. Owner Trustee May Own Certificates and Notes.............................21
ARTICLE VII
Compensation Of Owner Trustee
Section 7.01. Owner Trustee's Fees And Expenses........................................21
Section 7.02. Indemnification..........................................................21
ARTICLE VIII
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement...........................................23
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee...............................24
Section 9.02. Replacement of Owner Trustee.............................................24
Section 9.03. Successor Owner Trustee..................................................25
Section 9.04. Merger or Consolidation of Owner Trustee.................................25
Section 9.05. Appointment of Co-Trustee or Separate Trustee............................25
ARTICLE X
Miscellaneous
Section 10.01. Amendments...............................................................27
Section 10.02. No Legal Title to Owner Trust Estate.....................................28
Section 10.03. Limitations on Rights of Others..........................................28
Section 10.04. Notices..................................................................29
Section 10.05. Severability.............................................................29
Section 10.06. Separate Counterparts....................................................29
Section 10.07. Successors and Assigns...................................................29
Section 10.08. No Petition..............................................................29
Section 10.09. No Recourse..............................................................30
Section 10.10. Headings.................................................................30
Section 10.11. Governing Law............................................................30
Section 10.12. Integration..............................................................30
Section 10.13. Rights of Credit Enhancer to Exercise Rights of Certificateholders.......30
ARTICLE XI
Compliance with Reg AB
Section 11.01. Intent of the Parties; Reasonableness....................................30
Section 11.02. Additional Representations and Warranties of Wilmington..................31
Section 11.03. Information to Be Provided by Wilmington.................................31
Section 11.04. Indemnification; Remedies................................................33
Signatures
EXHIBIT
Exhibit A - ...Form of Class SB Certificate A-1
Exhibit B - ...Certificate of Trust of Home Equity Loan Trust 2007-HSA1 B-1
Exhibit C - ...Form of 144A Investment Representation C-1
Exhibit D - ...Form of Investor Representation Letter D-1
Exhibit E - ..Form of Transferor Representation Letter E-1
Exhibit F - ...Form of Certificate of Non-Foreign Status F-1
Exhibit G - ...Form of ERISA Representation Letter G-1
Exhibit H - ...Form of Representation Letter H-1
This Amended and Restated Trust Agreement, dated as of February 27, 2007 (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 February 26, 2007, in connection with the formation of a Delaware statutory trust (the
"Original Trust Agreement"); and
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 February 27, 2007 (the "Indenture"), between Home Equity
Loan Trust 2007-HSA1, as issuer, and LaSalle Bank National Association, 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.
(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; the term "including" shall mean "including
without limitation"; and the term "proceeds" shall have the meaning ascribed thereto in the
UCC.
(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
Equity Loan Trust 2007-HSA1," 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 ▇▇▇
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, the Credit Enhancer and the Depositor.
Section 2.03. Purposes and Powers. The purpose of the Trust is to engage in the
following activities:
(a) to issue the Notes pursuant to the Indenture and the Certificates pursuant to
this Trust Agreement and to sell the Notes and the Certificates;
(b) to purchase the Home Equity Loans and to pay the organizational, start-up and
transactional expenses of the Trust;
(c) to assign, grant, transfer, pledge and convey the Home Equity Loans pursuant
to the Indenture and to hold, manage and distribute to the Certificateholders pursuant to
Section 5.01 any portion of the Home Equity Loans released from the Lien of, and remitted to
the Trust pursuant to the Indenture;
(d) to enter into and perform its obligations under the Basic Documents to which
it is to be a party;
(e) to engage in those activities, including entering into agreements, that are
necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or
connected therewith, including, without limitation, to accept additional contributions of
equity that are not subject to the Lien of the Indenture; and
(f) subject to compliance with the Basic Documents, to engage in such other
activities as may be required in connection with conservation of the Owner Trust Estate and
the making of distributions to the 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 Certificateholders of Certificates evidencing a
majority of the Certificate Percentage Interest of the Certificates, the Noteholders of
Notes representing a majority of the aggregate Security Balances of the Notes, the Credit
Enhancer 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. In consideration of the delivery by the Owner Trustee, on behalf of the
Trust, of the Securities to the Depositor or its designee, upon the order of the Depositor,
the Owner Trustee hereby acknowledges receipt in trust from the Depositor, as of the Closing
Date, and concurrently with the execution and delivery hereof, the Depositor does hereby
transfer, assign, set over and otherwise convey to the Trust, without recourse, but subject
to the other terms and provisions of this Trust Agreement, all of the right, title and
interest of the Depositor in and to the Owner Trust Estate. The foregoing transfer,
assignment, set over and conveyance does not, and is not intended to, result in a creation
or an assumption by the Trust of any obligation of the Depositor or any other Person in
connection with the Trust Estate or under any agreement or instrument relating thereto,
except as specifically set forth herein.
The Owner Trustee, on behalf of the Trust, acknowledges the conveyance to the Trust
by the Depositor, as of the Closing Date, of the Owner Trust Estate, including all right,
title and interest of the Depositor in and to the Owner Trust Estate. Concurrently with
such conveyance and in exchange therefor, the Trust has pledged the Trust Estate to the
Indenture Trustee and has executed the Certificates and the Notes and caused them to be duly
authenticated and delivered.
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. 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 disregarded entity while it is wholly owned by a
single person or entity, with the Home Equity Loans being treated as assets of the single
person or entity, and the Notes being debt of the entity and the provisions of this Trust
Agreement shall be interpreted to further this intention. It is the intention of the parties
hereto that solely for federal, state and local income and franchise tax purposes, for so
long as 100% of the Class SB Certificates are held by a single person or entity, the Trust
shall be treated as a disregarded entity, with the Trust Estate being treated as assets of
the single person or entity, and the Notes being treated as debt of the entity, and the
provisions of this Trust Agreement shall be interpreted to further this intention. If more
than one person owns the Class SB Certificates, then it is the intention of the parties
hereto, that solely for federal, state and local income and franchise tax purposes the Owner
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 as provided by the original Certificateholder consistent
with the characterization of the 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 and as provided by such holders of Certificates.
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.
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:
(a) The Depositor is duly organized and validly existing as a corporation
in good standing under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties are currently owned
and such business is presently conducted.
(b) The Depositor is duly qualified to do business as a foreign corporation
in good standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of 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.
(c) 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.
(d) The consummation of the transactions contemplated by this Trust
Agreement and the fulfillment of the terms hereof do not conflict with, result in any
material breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a material default under, the articles of incorporation or
bylaws of the Depositor, or any material 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.
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 Equity Loans; Certificates
Section 3.01. Conveyance of the Home Equity 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 and the Credit Enhancer,
without recourse, all its right, title and interest in and to the Home Equity Loans. The
Depositor will also provide the Trust with the Policy.
The Depositor, as assignee of Residential Funding under the Purchase Agreement,
hereby assigns to the Issuer all of its right, title and interest in respect of the Purchase
Agreement applicable to a Home Equity Loan. Insofar as the Purchase Agreement relates to
the representations and warranties made by Residential Funding in respect of such Home
Equity Loan and any remedies provided thereunder for any breach of such representations and
warranties, the Depositor acknowledges that such right, title and interest may be enforced
by or on behalf of the Issuer.
The parties hereto intend that, for non-tax purposes, 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 Equity Loans. In the event that, for non-tax purposes, 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 the Owner Trust Estate,
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 Equity 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 minimum
denominations of a Certificate Percentage Interest of 10.0000% and integral multiples of
0.0001% in excess thereof; provided, however, that Certificates may be issued in minimum
denominations of less than 10.0000% in accordance with the provisions of Section 3.12. The
Class SB Certificates shall be issued in substantially the form attached hereto as Exhibit
A.
The Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee and authenticated in the manner
provided in Section 3.04. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Trust, shall be validly issued and entitled to the benefit of this
Trust Agreement, notwithstanding that such individuals or any of them shall have ceased to
be so authorized prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of authentication and delivery of such Certificates. A Person
shall become a Certificateholder and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such Person's acceptance of a Certificate
duly registered in such Person's name, pursuant to Section 3.05.
A transferee of a Certificate shall become a Certificateholder and shall be entitled
to the rights and subject to the obligations of a Certificateholder hereunder upon such
transferee's acceptance of a Certificate duly registered in such transferee's name pursuant
to and upon satisfaction of the conditions set forth in Section 3.05.
Section 3.04. Authentication of Certificates. Concurrently with the acquisition of
the Home Equity Loans by the Trust, the Owner Trustee or the Certificate Paying Agent shall
cause the Certificates in an initial Certificate Percentage Interest of 100.00% 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 hereto, 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.
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, 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 (in substantially the form attached hereto as Exhibit F).
A Class SB 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 and the Credit Enhancer, that such transfer (1) will not
affect the tax status of the Trust and (2) will not adversely affect the interests of any
Certificateholder, Noteholder or the Credit Enhancer, 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-8 and shall resubmit such Form W-8-BEN or such successor form as required
by then-applicable regulations and shall resubmit such form every three years or with such
frequency as required by then-applicable regulations.
(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 (A) to either
(i) execute 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) deliver to the Certificate Registrar and
the Depositor 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) execute a representation letter, substantially in
the form of Exhibit D hereto, and to cause the transferor to execute 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 Depositor
and (B) to execute 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, the Credit Enhancer 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
employee benefit plan or certain other retirement plans and arrangements, including
individual retirement accounts and annuities, ▇▇▇▇▇ plans and bank collective investment
funds and insurance company general or separate accounts in which such plans, accounts or
arrangements are invested, that are subject to Title 1 of ERISA, or Section 4975 of the Code
(collectively, "Plan"), any Person acting, directly or indirectly, on behalf of any such
Plan or any Person acquiring such Certificates with "plan assets" of a Plan within the
meaning of the Department of Labor regulation promulgated at 29 C.F.R.ss.2510.3-101 ("Plan
Assets") unless the Depositor, the Owner Trustee, the Certificate Registrar and the Master
Servicer are provided with an Opinion of Counsel which establishes to the satisfaction of
the Depositor, the Owner Trustee, the Certificate Registrar and the Master Servicer that the
purchase of Certificates is permissible under applicable law, will not constitute or result
in any prohibited transaction under ERISA or Section 4975 of the Code and will not subject
the Depositor, the 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 Trust Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Owner Trustee, the Certificate Registrar or
the Master Servicer. Neither an Opinion of Counsel nor a certification will be required in
connection with the initial transfer of any such Certificate by the Depositor to an
affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall be
deemed to have represented that such affiliate is not a Plan or a Person investing Plan
Assets of any Plan) and the Owner Trustee 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 Class SB 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 addressed to the Certificate Registrar and the
Credit Enhancer, which establishes that such transfer or the registration of such transfer
would not cause the Trust to be classified as a publicly traded partnership, by having more
than 100 Certificateholders at any time during the taxable year of the Trust, 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.
(iv) In addition, no transfer, sale, assignment, pledge or other disposition of a
Certificate shall be made unless the proposed transferee executes a representation letter
substantially in the form of Exhibit D, or substantially in the form of Exhibit H hereto,
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) if the transferee is a partnership, grantor trust or S corporation for federal income
tax purposes, the Certificates acquired are not more than 50% of the assets of the
partnership, grantor trust or S corporation.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates. If (i) 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 (ii) 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, the Credit Enhancer and the Certificateholders
of any change in the location of the Certificate Register or any such office or agency.
Section 3.10. Certificate Paying Agent. (a) The Certificate Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution Account on behalf
of the Trust in accordance with the provisions of the Certificates and 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 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 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 Certificate Paying Agent
shall return all unclaimed funds to the Trust and upon removal of a Certificate Paying Agent
such Certificate Paying Agent shall also return all funds in its possession to the Trust.
The provisions of Sections 6.01, 6.04, 6.05, 6.06, 7.01 and 7.02 shall apply to the
Certificate Paying Agent to the extent applicable. Any reference in this Trust 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.
Section 3.11. Cooperation. The Owner Trustee shall cooperate in all respects with
any reasonable request by the Credit Enhancer for action to preserve or enforce the Credit
Enhancer's rights or interest under this Trust Agreement or the Insurance Agreement,
consistent with this Trust Agreement and without limiting the rights of the
Certificateholders as otherwise expressly set forth in this Trust Agreement.
Section 3.12. Additional Certificate Security Balances Upon Issuance of Capped
Funding Notes. (a) On any date on which Variable Funding Notes are exchanged for Capped
Funding Notes pursuant to Section 4.01(d) of the Indenture, the Security Balance of one or
more Class SB Certificates shall be increased in an amount equal to the Additional
Certificate Security Balance as required pursuant to the Opinion of Counsel required to be
delivered pursuant to Section 4.01(d) of the Indenture in connection with the issuance of
Capped Funding Notes. In addition, on any Payment Date on which the Additional Balance
Differential for such Payment Date if added to the aggregate Security Balance of the
Variable Funding Notes (after application of any principal payments to be made thereon on
such Payment Date) would cause the aggregate Security Balance thereof to exceed the Maximum
Variable Funding Balance, then the Security Balance of one or more Certificates shall be
increased by the amount of such excess.
(b) 100.00% of the value of the Additional Certificate Security Balance shall be
added to any Class SB Certificate held by the Seller or an Affiliate thereof without the
consent of the other Certificateholders; or if no such Class SB Certificate exists, a new
Class SB Certificate or Class SB Certificates shall be issued at the direction of the Seller
or an Affiliate thereof having in the aggregate a Security Balance equal to such 100.00% of
such value. Alternatively, the Depositor may allocate any portion of such value to a Class
SB Certificateholder other than the Depositor or an Affiliate thereof, provided that such
Certificateholder provides its written consent to the Depositor and the Owner Trustee.
(c) Following such increase, the Certificate Percentage Interest of each Class SB
Certificate shall be recalculated, the numerator of which shall be the value thereof
including the respective value of the portion of the Additional Certificate Security Balance
added thereto pursuant to this Section 3.12, and the denominator of which shall be the value
of all the Class SB Certificates following such increase. The Owner Trustee shall issue new
Class SB Certificates with new Certificate Percentage Interests to each Holder of the Class
SB Certificates, with such Certificate Percentage Interests calculated to four decimal
places. In addition, the new Class SB Certificates may be issued in minimum denominations
of 0.0001% and integral multiples of 0.0001% in excess thereof. This subsection, and
subsections (d) and (e) below, shall not apply in the event that any Additional Certificate
Security Balance is allocated in accordance with subsection (b) either (i) at any time when
there is only one Class SB Certificateholder, or (ii) at any time when there is more than
one Class SB Certificateholder if such Additional Certificate Security Balance is allocated
on a pro rata basis among all Class SB Certificates.
(d) For purposes of the foregoing, the "value" of any Class SB Certificate or any
Additional Certificate Security Balance added thereto shall be determined by the Seller in
its sole discretion based on reasonable cash flow assumptions and valuation methods, and any
such determination shall be binding on the Certificateholders. If the Seller is unable to
determine the "value," the Owner Trustee shall determine the "value" using the same
assumptions and methods.
(e) The Owner Trustee, the Indenture Trustee and the Issuer agree to cooperate
with each other and the Depositor and the Seller and to cause no unreasonable delay in
adjusting the Certificate Percentage Interests of the Class SB Certificates pursuant to this
Section 3.12 and the issuing of Capped Funding Notes in connection with Section 4.01(d) of
the Indenture.
Section 3.13. Subordination. Except as otherwise provided in the Basic Documents,
for so long as any Notes are outstanding or unpaid, the Certificateholders will generally be
subordinated in right of payment, under the Certificates or otherwise, to payments to the
Noteholders under, or otherwise related to, the Indenture. If an Event of Default has
occurred and is continuing under the Indenture, the Certificates will be fully subordinated
to obligations owing by the Trust to the Noteholders and the Credit Enhancer under, or
otherwise related to, the Indenture, and no distributions will be made on the Certificates
until the Noteholders and the Indenture Trustee and the Credit Enhancer have been
irrevocably paid in full.
Section 3.14. No Priority Among Certificates. All Certificateholders shall rank
equally as to amounts distributable upon the liquidation, dissolution or winding up of the
Trust, with no preference or priority being afforded to any Certificateholders over any
other Certificateholders.
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.
(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 (with a copy to the Credit Enhancer) 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 Security Balance 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 Owner
Trust Estate that result from actions by, or claims against, the Owner Trustee that are not
related to the ownership or the administration of the Owner Trust Estate.
Section 4.05. Restrictions. (a) The Owner Trustee 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 or a taxable mortgage pool 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.
(b) The Owner Trustee shall not convey or transfer any of the Trust's properties
or assets, including those included in the Trust Estate, to any person unless (a) it shall
have received an Opinion of Counsel to the effect that such transaction will not have any
material adverse tax consequence to the Trust or any Certificateholder and (b) such
conveyance or transfer shall not violate the provisions of Section 3.16(b) of the Indenture.
Section 4.06. Prior Notice to Certificateholders and the Credit Enhancer with Respect
to Certain Matters. With respect to the following matters, the Owner Trustee shall not take
action unless, at least 30 days before the taking of such action, the Owner Trustee shall
have notified the Certificateholders and the Credit Enhancer in writing of the proposed
action and Holders of Certificates representing a majority of the Security Balance thereof
and the Credit Enhancer shall not have notified the Owner Trustee in writing prior to the
30th day after such notice is given that such Certificateholders and the Credit Enhancer
have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims or lawsuits
brought in connection with the collection of cash distributions due and owing under the Home
Equity 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 Equity 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 Security Balance of the Certificates,
and with the consent of the Credit Enhancer, 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 Equity 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 Security Balance of the Certificates and with the consent of the Credit Enhancer.
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 with the
consent of the Credit Enhancer 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 Security Balance
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 Security
Balance 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.
Section 4.12. Removal of Home Equity Loans. Certificateholders holding 100% of the
Certificate Percentage Interests of the Class SB Certificates may, by delivering a written
request to the Owner Trustee to such effect, cause the removal of Home Equity Loans from the
Trust Estate in accordance with and subject to the provisions of Section 3.15(b) of the
Servicing Agreement. Promptly following receipt of any such request, the Owner Trustee
shall deliver to the Master Servicer the written notice and request required to be delivered
to the Master Servicer pursuant to Section 3.15(b) of the Servicing Agreement. Any Home
Equity Loans removed from the Trust Estate pursuant to Section 3.15(b) of the Servicing
Agreement shall be property of the Issuer and, upon the written request of the Class SB
Certificateholders holding 100% of the Certificate Percentage Interests of the Class SB
Certificates, be released to the Class SB Certificateholders as a dividend and in accordance
with the written instructions of such Certificateholders..
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. All distributions made
pursuant to this Section shall be distributed to the Certificateholders pro rata based on
the respective Percentage Interests thereof.
(b) In the event that any withholding tax is imposed on the distributions (or
allocations of income) to a Certificateholder, such tax shall reduce the amount otherwise
distributable to the Certificateholder in accordance with this Section 5.01. The
Certificate Paying Agent is hereby authorized and directed to retain or cause to be retained
from amounts otherwise distributable to the Certificateholders sufficient funds for the
payment of any tax that is legally owed by the Trust (but such authorization shall not
prevent the Owner Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to a Certificateholder
shall be treated as cash distributed to such Certificateholder at the time it is withheld by
the Certificate Paying Agent and remitted to the appropriate taxing authority. If there is
a possibility that withholding tax is payable with respect to a distribution (such as a
distribution to a non-U.S. Certificateholder), the Certificate Paying Agent may in its sole
discretion withhold such amounts in accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the creditors of
the Trust, including the Noteholders and the Credit Enhancer.
(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 Certificateholders on any Payment Date as provided in Section 5.01 shall be
made to each 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 such Certificateholder shall have provided
to the Certificate Registrar appropriate written instructions at least five Business Days
prior to such Payment Date or, if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register.
Section 5.03. Signature on Returns. 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 on its website to each Certificateholder 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. If the Original Certificateholder is no longer the sole
Certificateholder, the subsequent holders of the Class SB Certificates by their acceptance
hereof, agree to appoint the Original Certificateholder as their agent for the tax matters
partner and the Original Certificateholder, as agent for such holders, agrees to perform
all duties necessary to comply with federal and state income tax laws.
Any Certificateholder that holds 100% of the Class SB Certificates agrees by its
purchase of 100% of the Class SB Certificates to treat the Trust as a disregarded entity
wholly owned by such Certificateholder for purposes of federal and state income tax,
franchise tax and any other tax measured in whole or in part by income, with the assets of
the Trust being treated as being owned by such Certificateholder, and the Notes being debt
of the Certificateholder.
Section 5.06. Reports to the Master Servicer. In connection with the preparation and
filing by the Master Servicer, on behalf of the Depositor and in respect of the Trust, of
periodic reports required to be filed under the provisions of the Exchange Act and the rules
and regulations of the Commission thereunder, the Depositor shall timely provide to the
Master Servicer all material information available to them which is required to be included
in such reports.
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
Equity Loan Purchase Agreement; and
(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 Owner Trustee to
perform any discretionary act enumerated in this Trust Agreement or in any Basic Document
shall not be construed as a duty, and the Owner Trustee shall not be answerable for other
than its 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 and the Credit Enhancer 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 and the Credit
Enhancer, 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
(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 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 holder of the majority of the Certificate
Percentage Interest of the Class SB Certificates shall indemnify, defend and hold harmless
the Owner Trustee and its successors, assigns, agents and servants (collectively, the
"Indemnified Parties") from and against, any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and nature
whatsoever (collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of this Trust Agreement, the Basic Documents, the Owner Trust Estate, the
administration of the Owner Trust Estate or the action or inaction of the Owner Trustee
hereunder, provided, that:
(a) the holder of the majority of the Certificate Percentage Interest of
the Certificates shall not be liable for or required to indemnify an Indemnified Party from
and against Expenses arising or resulting from the Owner Trustee's willful misconduct,
negligence or bad faith or as a result of any inaccuracy of a representation or warranty
contained in Section 6.03 expressly made by the Owner Trustee;
(b) with respect to any such claim, the Indemnified Party shall have given
the holder of the majority of the Certificate Percentage Interest of the Certificates
written notice thereof promptly after the Indemnified Party shall have actual knowledge
thereof;
(c) while maintaining control over its own defense, the holder of the
majority of the Certificate Percentage Interest of the Certificates shall consult with the
Indemnified Party in preparing such defense; and
(d) notwithstanding anything in this Trust Agreement to the contrary, the
holder of the majority of the Certificate Percentage Interest of the Certificates shall not
be liable for settlement of any claim by an Indemnified Party entered into without the prior
consent of the holder of the majority of the Certificate Percentage Interest of the
Certificates which consent shall not be unreasonably withheld.
The indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Trust Agreement. In the event
of any claim, action or proceeding for which indemnity will be sought pursuant to this
Section 7.02, the Owner Trustee's choice of legal counsel, if other than the legal counsel
retained by the Owner Trustee in connection with the execution and delivery of this Trust
Agreement, shall be subject to the approval of the holder of the majority of the Certificate
Percentage Interest of the Class SB Certificates, which approval shall not be unreasonably
withheld. In addition, upon written notice to the Owner Trustee and with the consent of the
Owner Trustee which consent shall not be unreasonably withheld, the holder of the majority
of the Certificate Percentage Interest of the Class SB Certificates has the right to assume
the defense of any claim, action or proceeding against the Owner Trustee.
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 or (ii) the purchase by the Master Servicer of all Home Equity Loans pursuant to
Section 8.08 of the Servicing Agreement; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United States
to the Court of St. ▇▇▇▇▇, living on the date hereof. 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.
(b) Except as provided in Section 8.01(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date upon which
Certificateholders shall surrender their Certificates to the Certificate Paying Agent for
payment of the final distribution and cancellation, shall be given by the Certificate Paying
Agent by letter to Certificateholders and the Credit Enhancer 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
Paying Agent therein specified. The Certificate Paying Agent shall give such notice to the
Owner Trustee and the Certificate Registrar at the time such notice is given to
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. No such termination is permitted if it would
result in a draw on the Policy unless the Credit Enhancer consents in writing.
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.
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 Standard & Poor's, ▇▇▇▇▇'▇ and/or Fitch Ratings. 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 Credit Enhancer, the Indenture Trustee and the Depositor. Upon receiving
such notice of resignation, the Indenture Trustee shall promptly appoint a successor Owner
Trustee with the consent of the Credit Enhancer which will not be unreasonably withheld, 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 and shall at the direction of the Credit
Enhancer 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 acceptable to the Credit Enhancer 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 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 Credit
Enhancer, 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 pursuant to Section 9.01 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee and such
separate trustee or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Owner Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner Trustee;
(b) No trustee under this Trust Agreement shall be personally liable by reason of
any act or omission of any other trustee under this Trust Agreement; and
(c) The Owner Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be deemed to
have been given to each of the then separate trustees and co-trustees, as effectively as if
given to each of them. Every instrument appointing any separate trustee or co-trustee shall
refer to this Trust Agreement and the conditions of this Article IX. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the provisions of
this Trust Agreement, specifically including every provision of this Trust Agreement
relating to the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner Trustee as its
agent or attorney-in-fact with full power and authority, to the extent not prohibited by
law, to do any lawful act under or in respect of this Trust Agreement on its behalf and in
its name. If any separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE X
Miscellaneous
Section 10.01.Amendments. (a) This Trust Agreement may be amended from time to time
by the parties hereto as specified in this Section 10.01, with the prior written consent of
the Credit Enhancer, provided that any amendment, except as provided in subparagraph (e)
below, be accompanied by an Opinion of Counsel, to the Owner Trustee and the Credit
Enhancer, 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 deal with any
matter not covered in this Trust Agreement (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 and the Credit Enhancer 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 if determined without regard to the Policy 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 or the Credit Enhancer, and the consent of the Credit Enhancer
shall be obtained.
(c) If the purpose of the amendment is to prevent the imposition of any federal or
state taxes at any time that any Security is outstanding (i.e., technical in nature), it
shall not be necessary to obtain the consent of any Holder, but the Owner Trustee and the
Credit Enhancer 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 or the Credit Enhancer and the consent of the Credit Enhancer shall be
obtained.
(d) If the purpose of the amendment is to add or eliminate or change any provision
of the Trust Agreement other than as contemplated in (b) and (c) above, the amendment shall
require (A) the consent of the Credit Enhancer and an Opinion of Counsel to the effect that
such action will not adversely affect in any material respect the interests of any Holders
or the Credit Enhancer and (B) either (a) a letter from the Rating Agency that the amendment
will not result in the downgrading or withdrawal of the rating then assigned to any Security
if determined without regard to the Policy 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 and the Credit
Enhancer, 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 and the Credit Enhancer 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 or the Credit Enhancer 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, if determined without regard to the Policy and the
consent of the Credit Enhancer shall be obtained.
(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, the Credit Enhancer 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.
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 ▇▇.▇▇.▇▇ 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, the Credit Enhancer and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders, and nothing in this Trust Agreement
(other than Section 2.07), whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Owner Trust Estate or
under or in respect of this Trust Agreement or any covenants, conditions or provisions
contained herein.
Section 10.04.Notices. (a) Unless otherwise expressly specified or permitted by the
terms hereof, all notices shall be in writing and shall be deemed given upon receipt, if to
the Owner Trustee, addressed to Wilmington Trust Company, Corporate Trust Administration,
▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration; if to the Depositor, addressed to Residential Funding
Mortgage Securities II, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; if to the Credit Enhancer, addressed to MBIA Insurance Corporation, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; if to the Rating Agencies, addressed to Standard &
Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 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 and the Credit Enhancer. Any
request, notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such Certificateholder.
Section ▇▇.▇▇.▇▇ Petition. The Owner Trustee, by entering into this Trust Agreement
and each Certificateholder, by accepting a Certificate, hereby covenant and agree that they
will not at any time institute against the Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy proceedings under any
United States federal or state bankruptcy or similar law in connection with any obligations
to the Certificates, the Notes, this Trust Agreement or any of the Basic Documents.
Section ▇▇.▇▇.▇▇ 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.
Section 10.13.Rights of Credit Enhancer. (a) By accepting its Class SB Certificate,
each Class SB Certificateholder agrees that unless a Credit Enhancer Default exists, the
Credit Enhancer shall have the right to exercise all rights of the Class SB
Certificateholders under this Agreement without any further consent of the Class SB
Certificateholders. Nothing in this Section, however, shall alter or modify in any way, the
fiduciary obligations of the Owner Trustee to the Class SB Certificateholders pursuant to
this Agreement, or create any fiduciary obligation of the Owner Trustee to the Credit
Enhancer. The Credit Enhancer is an express third-party beneficiary to this Agreement.
(b) From and after the date on which the Notes are no longer outstanding under the
Indenture and no amounts are owed to the Credit Enhancer pursuant to the terms of the
Insurance Agreement, including but not limited to, amounts owed to the Credit Enhancer in
respect of draws made on the Policy and for unpaid premiums, the Credit Enhancer shall have
no rights or benefits hereunder and all references to the Credit Enhancer in this Trust
Agreement shall be disregarded.
ARTICLE XI
COMPLIANCE WITH REGULATION AB
Section 11.01.Intent of the Parties; Reasonableness . The Depositor and Wilmington
acknowledge and agree that the purpose of this Article XI is to facilitate compliance by the
Depositor with the provisions of Regulation AB and related rules and regulations of the
Commission. The Depositor shall not exercise its right to request delivery of information
or other performance under these provisions other than in good faith, or for purposes other
than compliance with the Securities Act, the Exchange Act and the rules and regulations of
the Commission under the Securities Act and the Exchange Act. Wilmington acknowledges that
interpretations of the requirements of Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff, consensus among participants
in the mortgage-backed securities markets, advice of counsel, or otherwise, and agrees to
comply with reasonable requests made by the Depositor in good faith for delivery of
information under these provisions on the basis of evolving interpretations of Regulation
AB. Wilmington shall cooperate in good faith with any reasonable request by the Depositor
for information regarding Wilmington that is necessary or required, in the reasonable, good
faith determination of the Depositor, to permit the Depositor to comply with the provisions
of Regulation AB.
Section 11.02.Additional Representations and Warranties of Wilmington.
(a) Wilmington shall be deemed to represent and warrant to the Depositor as of the
date hereof and on each date on which information is provided to the Depositor under
Sections 11.01, 11.02(b) or 11.03 that, except as disclosed in writing to the Depositor prior
to such date: (i) it is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any other
Securitization Transaction due to any default of Wilmington; (ii) there are no aspects of
its financial condition that could have a material adverse effect on the performance by it
of its trustee obligations under the Trust Agreement or any other Securitization Transaction
as to which it is the trustee; (iii) there are no material legal or governmental proceedings
pending (or known to be contemplated) against it that would be material to Noteholders; (iv)
there are no relationships or transactions (as described in Item 1119(b) of Regulation AB)
relating to Wilmington with respect to the Depositor or any sponsor, issuing entity,
servicer, trustee, originator, significant obligor, enhancement or support provider or other
material transaction party (as each of such terms are used in Regulation AB) relating to the
Securitization Transaction contemplated by the Trust Agreement, as identified by the
Depositor to Wilmington in writing as of the Closing Date (each, a "Transaction Party") that
are outside the ordinary course of business or on terms other than would be obtained in an
arm's length transaction with an unrelated third party, apart from the Securitization
Transaction, and that are material to the investors' understanding of the Certificates; and
(v) Wilmington is not an affiliate (as contemplated by Item 1119(a) of Regulation AB) of any
Transaction Party. The Depositor shall notify Wilmington of any change in the identity of a
Transaction Party after the Closing Date at least five (5) Business Days prior to January 31
of each calendar year.
(b) If so requested by the Depositor on any date following the Closing Date,
Wilmington shall, within five Business Days following such request, confirm in writing the
accuracy of the representations and warranties set forth in paragraph (a) of this Section
or, if any such representation and warranty is not accurate as of the date of such
confirmation, provide the pertinent facts, in writing, to the Depositor. Any such request
from the Depositor shall not be given more than once each calendar quarter, unless the
Depositor shall have a reasonable basis for questioning the accuracy of any of the
representations and warranties.
Section 11.03.Information to Be Provided by Wilmington.
(a) For so long as the Notes are outstanding, for the purpose of satisfying the
Depositor's reporting obligation under the Exchange Act with respect to any class of Notes,
Wilmington shall provide to the Depositor a written description of (i) the commencement of,
a material development in or, if applicable, the termination of, any and all legal
proceedings against Wilmington or any and all proceedings of which any property of
Wilmington is the subject, that would be material to Noteholders; and (ii) any such
proceedings known to be contemplated by governmental authorities that would be material to
Noteholders. Wilmington shall also notify the Depositor, in writing, as promptly as
practicable following notice to or discovery by a Responsible Officer of Wilmington of any
material changes to proceedings described in the preceding sentence. In addition,
Wilmington will furnish to the Depositor, in writing, the necessary disclosure regarding
Wilmington describing such proceedings required to be disclosed under Item 1117 of
Regulation AB, for inclusion in reports filed by or on behalf of the Depositor pursuant to
the Exchange Act. The Depositor will allow Wilmington to review any disclosure relating to
material litigation against Wilmington prior to filing such disclosure with the Commission
to the extent the Depositor changes the information provided by Wilmington. Any
descriptions required with respect to legal proceedings, as well as updates to previously
provided descriptions, under this Section 11.03(a) shall be given no later than five
Business Days prior to the Determination Date following the month in which the relevant
event occurs.
(b) For so long as the Notes are outstanding, for the purpose of satisfying the
Depositor's reporting obligation under the Exchange Act with respect to any class of Notes,
Wilmington shall, no later than January 31 of each calendar year, (i) provide to the
Depositor such information regarding Wilmington as is required for the purpose of compliance
with Item 1119 of Regulation AB; provided, however, Wilmington shall not be required to
provide such information in the event that there has been no change to the information
previously provided by Wilmington to the Depositor; and (ii) as promptly as practicable
following notice to or discovery by a Responsible Officer of Wilmington of any changes to
such information, provide to the Depositor, in writing, such updated information. Such
information shall include, at a minimum, a description of any affiliation between Wilmington
and any of the following parties to the Securitization Transaction contemplated by the Trust
Agreement, as such parties and their affiliates are identified to Wilmington by the
Depositor in connection with the closing of each Securitization Transaction or, if there has
been a change in any such party, as such party is identified by the Depositor in a written
notice to Wilmington at least five (5) Business Days prior to January 31 of each calendar
year:
(1) the sponsor;
(2) any depositor;
(3) the issuing entity;
(4) any servicer;
(5) any other trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material party related to any Securitization Transaction.
In addition, Wilmington shall provide a description of whether there is, and if so
the general character of, any business relationship, agreement, arrangement, transaction or
understanding between Wilmington and any above-listed party that is entered into outside the
ordinary course of business or is on terms other than would be obtained in an arm's length
transaction with an unrelated third party, apart from the Securitization Transaction
contemplated by the Trust Agreement, that currently exists or that existed during the past
two years and that is material to an investor's understanding of the Notes.
(c) As of the related Payment Date with respect to each Report on Form 10-D with
respect to the Notes filed by or on behalf of the Depositor, and as of March 15 preceding
the date each Report on Form 10-K with respect to the Notes is filed, Wilmington shall be
deemed to represent and warrant that any information previously provided by Wilmington under
this Article XI is materially correct and does not have any material omissions unless
Wilmington has provided an update to such information.
Section 11.04.Indemnification; Remedies.
(a) Wilmington shall indemnify the Depositor, each affiliate of the Depositor,
Residential Funding and each affiliate of Residential Funding, and the respective present
and former directors, officers, employees and agents of each of the foregoing, and shall
hold each of them harmless from and against any claims, losses, liabilities (including
penalties), actions, suits, judgments, demands, damages, costs and expenses (including
reasonable fees and expenses of attorneys or, as necessary, consultants and auditors and
reasonable costs of investigations) that any of them may sustain arising out of or based
upon:
(i)(A) any untrue statement of a material fact contained or
alleged to be contained in any information, report, certification or other material provided
under Sections 11.01, 11.02 or 11.03 of this Article XI by or on behalf of Wilmington
(collectively, the "Wilmington Information"), or (B) the omission or alleged omission to
state in Wilmington Information a material fact required to be stated in Wilmington
Information or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or
(ii) any failure by Wilmington to deliver any information,
report, certification or other material when and as required under Sections 11.02 and 11.03.
(b) In the case of any failure of performance described in clause (ii) of Section
11.04(a), Wilmington shall (i) promptly reimburse the Depositor for all costs reasonably
incurred by the Depositor in order to obtain the information, report, certification or other
material not delivered by Wilmington as required and (ii) cooperate with the Depositor to
mitigate any damages that may result from such failure.
(c) The Depositor and Residential Funding shall indemnify Wilmington, each
affiliate of Wilmington and the respective present and former directors, officers, employees
and agents of Wilmington, and shall hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain arising out
of or based upon (i) any untrue statement of a material fact contained or alleged to be
contained in any information provided by or on behalf of the Depositor or Residential
Funding for inclusion in any report filed with Commission under the Exchange Act
(collectively, the "RFC Information"), or (ii) the omission or alleged omission to state in
the RFC Information a material fact required to be stated in the RFC Information or
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) Notwithstanding any provision in this Section 11.04 to the contrary, the
parties agree that none of Wilmington, the Depositor or Residential Funding shall be liable
to the other for any consequential or punitive damages whatsoever, whether in contract, tort
(including negligence and strict liability), or any other legal or equitable principle;
provided, however, that such limitation shall not be applicable with respect to third party
claims made against a party.
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/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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/J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:Vice President
Acknowledged and Agreed:
LASALLE BANK NATIONAL ASSOCIATION
Indenture Trustee, as Certificate
Registrar and Certificate
Paying Agent
By: /s/▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title:Director
EXHIBIT A
FORM OF CLASS SB CERTIFICATE
THIS CLASS SB CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM
NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THIS CLASS SB CERTIFICATE IS ISSUED IN THE PERCENTAGE INTEREST SET FORTH
BELOW; HOWEVER, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE IN ACCORDANCE WITH
SECTION 3.12 OF THE AGREEMENT. THE HOLDER OF THIS CLASS SB CERTIFICATE HEREBY CONSENTS TO
ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION.
THIS CLASS SB 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 LAWS 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 CLASS SB CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS
CLASS SB CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER
PLAN SUBJECT TO THE PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY
REQUIREMENTS 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"), ANY PERSON
ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF ANY SUCH PLAN OR ANY PERSON USING "PLAN
ASSETS," WITHIN THE MEANING OF THE DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, TO
ACQUIRE THIS CLASS SB CERTIFICATE, OF ANY SUCH PLAN (EACH, A "PLAN INVESTOR") OR (II) IF
THIS CLASS SB CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, AN
OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB 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 DEPOSITOR, THE OWNER TRUSTEE, THE
MASTER SERVICER OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO
THOSE UNDERTAKEN IN THE AGREEMENT.
THE TRANSFEREE OF THIS CLASS SB CERTIFICATE SHALL BE SUBJECT TO UNITED STATES
FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE
OF NON-FOREIGN STATUS CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR
CORPORATION OR PARTNERSHIP UNDER U.S. LAW.
THIS CLASS SB CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
THE SELLER, THE DEPOSITOR, THE MASTER SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT OR THE
OTHER BASIC DOCUMENTS.
Certificate No. 1
Cut-off Date:
February 1, 2007
Date of Trust Agreement:
February 27, 2007
First Payment Date: Certificate Percentage Interest of
March 26, 2007 this Certificate: 100%
Assumed Final Payment Date:
February 25, 2037
HOME EQUITY LOAN-BACKED CERTIFICATE
SERIES 2007-HSA1
evidencing a fractional undivided interest in the Owner Trust Estate, the
property of which consists primarily of the Home Equity Loans, created by RESIDENTIAL
FUNDING MORTGAGE SECURITIES II, INC. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement referred to below).
This Class SB Certificate is payable solely from the assets of the Owner Trust
Estate, and does not represent an obligation of or interest in the Depositor, the Seller,
the Master Servicer, the Indenture Trustee, the Owner Trustee or GMAC Mortgage Group, LLC or
any of their affiliates. This Class SB Certificate is not guaranteed or insured by any
governmental agency or instrumentality or by the Depositor, the Seller, the Master Servicer,
the Indenture Trustee, the Owner Trustee or GMAC Mortgage Group, LLC or any of their
affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee,
the Owner Trustee, GMAC Mortgage Group, LLC 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 Pramwave & Co. is the registered owner of the Certificate
Percentage Interest evidenced by this Class SB Certificate (as set forth on the face hereof)
in certain distributions with respect to the Owner Trust Estate, consisting primarily of the
Home Equity Loans, created by Residential Funding Mortgage Securities II, Inc. The Trust
(as defined herein) was created pursuant to a Trust Agreement dated as specified above (as
amended and supplemented from time to time, the "Agreement") between the Depositor 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 Class SB Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class SB 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 Class SB 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 Class SB Certificate (based on the Certificate Percentage Interest stated on the face
hereon) of the Certificate Distribution Amount, if any, required to be distributed to
Holders of Certificates on such Payment Date. Distributions on this Class SB 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 Class SB Certificate or the making of any notation hereon.
Except as otherwise provided in the Agreement and notwithstanding the above,
the final distribution on this Class SB 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 Class SB Certificate at the office or agency maintained by the Certificate
Registrar for that purpose in the City and State of New York. The initial Security Balance
of this Class SB Certificate is set forth above. The Security Balance hereof will be
reduced to the extent of the distributions allocable to principal.
No transfer of this Class SB 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, (i) the Certificate Registrar or the Depositor may
require an opinion of counsel acceptable to and in form and substance satisfactory to the
Certificate Registrar and the Depositor 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 and (ii) the transferee shall execute an investment letter in the form
described in the Agreement and (iii) the Certificate Registrar shall require the transferee
to execute an investment letter and a Certificate of Non-Foreign Status in the form
described by the Agreement (or if a Certificate of Non-Foreign Status is not provided, an
Opinion of Counsel as described in the Agreement), which investment letter and certificate
or Opinion of Counsel shall not be at the expense of the Trust, the Owner Trustee, the
Certificate Registrar or the Depositor. The Holder hereof desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Depositor, the
Master Servicer 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 Depositor) will also require either (i) a representation letter, in the form as
described by the Agreement, stating that the transferee is not an employee benefit or other
plan subject to the prohibited transaction restrictions or the fiduciary responsibility
requirements of ERISA or Section 4975 of the Code, any person acting, directly or
indirectly, on behalf of any such plan or any Person using the "plan assets," within the
meaning of the Department of Labor regulations at 29 C.F.R.ss.2510.3-101, of any such plan to
effect such acquisition (each, a "Plan Investor") or (ii) if this Class SB Certificate is
presented for registration in the name of a Plan Investor, an opinion of counsel to the
effect that the purchase or holding of this Class SB 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 Depositor, the Owner Trustee, the Master Servicer or the
Certificate Registrar to any obligation or liability in addition to those undertaken in the
Agreement.
This Class SB Certificate is one of a duly authorized issue of Certificates
designated as Home Equity Loan-Backed Certificates of the Series specified hereon (herein
collectively called the "Certificates"). All terms used in this Class SB Certificate which
are defined in the Agreement shall have the meanings assigned to them in the Agreement.
The Certificateholder, by its acceptance of this Class SB Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Distribution Account
that have been released from the Lien of the Indenture for payment hereunder and that
neither the Owner Trustee in its individual capacity nor the Depositor is personally liable
to the Certificateholders for any amount payable under this Class SB Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any liability under
the Agreement.
The Holder of this Class SB Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Class SB Certificate are subordinated to
the rights of the Noteholders as described in the Indenture, dated as of February 27, 2007,
between Home Equity Loan Trust 2007-HSA1 (the "Trust") and LaSalle Bank National
Association, as Indenture Trustee (the "Indenture").
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not at any time institute against the Depositor or
the Trust, or join in any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, 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 the consent of the Credit Enhancer and 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 and the Credit Enhancer 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 determined without regard to the Policy and the
consent of the Credit Enhancer shall be obtained. If the purpose of the amendment is to
prevent the imposition of any federal or state taxes at any time that any Security is
outstanding, it shall not be necessary to obtain the consent of any Holder, but the Owner
Trustee and the Credit Enhancer 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 or the Credit Enhancer and the consent of the Credit
Enhancer shall be obtained. 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 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, if determined without regard to the Policy or (b) the consent of Holders of a
majority of the Certificate Percentage Interests 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 time of, payments received that are required to be distributed on any
Certificate without the consent of the related Certificateholder and the Credit Enhancer, 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.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Class SB Certificate is registerable in the Certificate Register
upon surrender of this Class SB 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 aggregate Certificate Percentage Interest will be issued to the designated
transferee. The initial Certificate Registrar appointed under the Agreement is the
Indenture Trustee.
Except as provided in the Agreement, the Certificates are issuable only in
minimum denominations of a 10.0000% Certificate Percentage Interest and in integral
multiples of a 0.0001% Certificate Percentage Interest in excess thereof. As provided in
the Agreement and subject to certain limitations therein set forth, the Certificates are
exchangeable for new Certificates of authorized denominations, as requested by the Holder
surrendering the same. This Class SB Certificate is issued in the Certificate Percentage
Interest above; however, the Certificate Percentage Interest of this Class SB Certificate
may change in accordance with Section 3.12 of the Agreement. The Holder of this Class SB
Certificate hereby consents to any change in its Certificate Percentage Interest in
accordance with such Section.
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 Class SB 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 Class SB 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 Certificates 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 Owner Trust Estate in accordance with the
terms of the Indenture and the Agreement or (ii) the purchase by the Master Servicer of all
Home Equity Loans pursuant to Section 8.08 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 Class SB 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 Class SB Certificate to be duly executed.
HOME EQUITY LOAN TRUST 2007-HSA1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
Dated: February 27, 2007 By: ____________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ______________________________
Authorized Signatory
or LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but solely,
as Authenticating Agent of the Trust
Dated: February 27, 2007
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 EQUITY LOAN TRUST 2007-HSA1
THIS Certificate of Trust of Home Equity Loan Trust 2007-HSA1 (the "Trust") is being
duly executed and filed by Wilmington Trust company, a Delaware banking corporation, as
owner trustee, to form a statutory trust under the Delaware Statutory Trust Act (12 Del. C
ss.3801 et seq.).
1. Name: The name of the statutory trust formed hereby is Home Equity Loan Trust
2007-HSA1.
2. Delaware Trustee: The name and business address of the owner trustee of the
Trust in the State of Delaware is Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration.
3. Effective Date: This Certificate of Trust shall be effective upon filing with
the Secretary of State.
IN WITNESS WHEREOF, the undersigned, being the sole owner trustee of the
Trust, has executed this Certificate of Trust.
WILMINGTON TRUST COMPANY,
as owner trustee
By: ___________________________
Name:
Title:
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
(the "Rule 144A Securities")
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 ▇▇▇▇ ▇▇▇.
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 February 27, 2007 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 LaSalle Bank National Association., 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 Rule 144A Securities or any other similar security to, or solicited any offer to buy
or accept a transfer, pledge or other disposition of the Rule 144A Securities, any interest
in the Rule 144A Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken any other
action, that would constitute a distribution of the Rule 144A Securities under the 1933 Act
or that would render the disposition of the Rule 144A Securities a violation of Section 5 of
the 1933 Act or require registration pursuant thereto, nor will it act, nor has it
authorized or will it authorize any person to act, in such manner with respect to the Rule
144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term is defined in
Rule 144A under the 1933 Act and has completed either of the forms of certification to that
effect attached hereto as Annex 1 or Annex 2. The Buyer is aware that the sale to it is
being made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A Securities for
its own account or the accounts of other qualified institutional buyers, understands that
such Rule 144A Securities may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for its own account
or for the account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the 1933 Act.
3. The Buyer represents that:
(i) either (a) or (b) is satisfied, as marked below:
a. The Buyer is not any employee benefit plan or other plan
subject to Title 1 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986, as amended (the "Code") (each, a "Plan"), a
Person acting, directly or indirectly, on behalf of a Plan or any Person acquiring such
Certificates with "plan assets" of a Plan within the meaning of the Department of Labor
regulation promulgated at 29 C.F.R.ss.2510.3-101; or
b. The Buyer has provided the Depositor, the Owner Trustee, the
Certificate Registrar and the Master Servicer with an opinion of counsel, 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.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in Appendix A to the indenture dated as of February 27, 2007,
between the Trust and the Indenture Trustee.
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 business trust, partnership,
or charitable organization described in Section 501(c)(3) of the Internal Revenue Code.
Bank. The Buyer (a) is a national bank or banking institution organized under the laws of
any State, territory or the District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
Savings and Loan. The Buyer (a) is a savings and loan association, building and loan
association, cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision over any such
institutions or is a foreign savings and loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements.
Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
Insurance Company. The Buyer is an insurance company whose primary and predominant business
activity is the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner or a similar
official or agency of a State or territory or the District of Columbia.
State or Local Plan. The Buyer is a plan established and maintained by a State, its
political subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
ERISA Plan. The Buyer is an employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974.
_______________________
(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.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LaSalle Bank National Association
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services/Structured Finance Services
Re: Home Equity Loan-Backed Certificates
Series 2007-HSA1
Ladies and Gentlemen:
_____________ (the "Purchaser") intends to purchase from ________________
(the "Seller") a ___% Certificate Percentage Interest of Certificates of Series 2007-HSA1
(the "Certificates"), issued pursuant to the Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of February 27, 2007, between Residential Funding Mortgage
Securities II, Inc. as depositor (the "Depositor") and Wilmington Trust Company, as owner
trustee (the "Owner Trustee"), as acknowledged and agreed by LaSalle Bank National
Association, 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 Depositor 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 Depositor 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 Equity Loans and the Depositor as
has been requested by the Purchaser from the Depositor 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 Depositor 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
Depositor, the Purchaser acknowledges that such Memorandum was provided to it by the
Seller, that the Memorandum was prepared by the Depositor solely for use in
connection with the Original Sale and the Depositor 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 Depositor 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 any employee benefit plan or other
plan subject to Title 1 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986, as amended (the "Code") (each, a "Plan"), a
Person acting, directly or indirectly, on behalf of a Plan or any Person acquiring such
Certificates with "plan assets" of a Plan within the meaning of the Department of Labor
regulation promulgated at 29 C.F.R.ss.2510.3-101; or
____ b. The Purchaser has provided the Depositor, the Owner
Trustee, the Certificate Registrar and the Master Servicer with an opinion of counsel,
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 Purchaser 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 partnership, grantor trust or S corporation for
federal income tax purposes, or, if the Purchaser is a partnership, grantor trust or S
corporation for federal income tax purposes, the Certificates are not more than 50% of the
assets of the partnership, grantor trust or S corporation.
9. The Purchaser is not a non-United States person.
Very truly yours,
By: _______________________________
Name:
Title:
EXHIBIT E
FORM OF TRANSFEROR REPRESENTATION LETTER
__________, 20___
Residential Funding Mortgage Securities II, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LaSalle Bank National Association
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services/Structured Finance Services
Re: Home Equity Loan-Backed Certificates
Series 2007-HSA1
Ladies and Gentlemen:
_________________ (the "Purchaser") intends to purchase ________________
(the "Seller") a ___% Certificate Percentage Interest of [Certificates] of Series 2007-HSA1
(the "Certificates"), issued pursuant to the Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of February 27, 2007, between Residential Funding Mortgage
Securities II, Inc. as depositor (the "Depositor") and Wilmington Trust Company, as owner
trustee (the "Owner Trustee"), as acknowledged and agreed by LaSalle Bank National
Association, 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 Depositor and the Certificate Registrar
that:
Neither the Seller nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in any Certificate or any
other similar security to any person in any manner, (b) has solicited any offer to buy or to
accept a pledge, disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has otherwise
approached or negotiated with respect to any Certificate, any interest in any 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 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 Seller will
not act, in any manner set forth in the foregoing sentence with respect to any 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,
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 February 27, 2007 (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 Home Equity Loan-Backed
Certificates, Series 2007-HSA1 (the "Certificates"). 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 Certificates an IRS Form W-9 relating
to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the
Internal Revenue Code (relating to withholding tax on foreign partners) do not apply in
respect of the Certificate held by the undersigned, the undersigned hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is ) not a non-resident alien for purposes
of U.S. income taxation;
2. My (The Beneficial Owner's) name and home address are:
__________________________________________; and
3. My (The Beneficial Owner's) U.S. taxpayer identification number (Social
Security Number) is _____________________________.
B. Corporate, Partnership or Other Entity as Beneficial - Owner
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
_____________, 200__
Residential Funding Mortgage
Securities II, Inc.
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Residential Funding Company, LLC
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[CERTIFICATE REGISTRAR]
Re: Residential Funding Mortgage Securities II, Inc.
Home Equity Loan-Backed Certificates, Series 2007-HSA1
Dear Sirs:
__________________________________ (the "Transferee") intends to acquire from
_____________________ (the "Transferor") a ___% Certificate Percentage Interest of
Residential Funding Mortgage Securities II, Inc. Home Equity Loan-Backed Certificates,
Series 2007-HSA1 (the "Certificates"), issued pursuant to an Amended and Restated Trust
Agreement (the "Trust Agreement") dated February 27, 2007 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 either:
(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, ▇▇▇▇▇ 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
Department of Labor ("DOL") Regulations Section 2510.3-101, and (iii) will not be
transferred to any entity that is deemed to be investing in plan assets within the meaning
of the DOL Regulations Section 2510.3-101; or
(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
EXHIBIT H
FORM OF REPRESENTATION LETTER
_____________, 200__
Residential Funding Mortgage
Securities II, Inc.
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▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Residential Funding Company, LLC
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▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[CERTIFICATE REGISTRAR]
Re: Residential Funding Mortgage Securities II, Inc.
Home Equity Loan-Backed Certificates, Series 2007-HSA1
Dear Sirs:
__________________________________ (the "Transferee") intends to acquire from
_____________________ (the "Transferor") a ___% Certificate Percentage Interest of
Residential Mortgage Securities II, Inc. Home Equity Loan-Backed Certificates, Series
2007-HSA1 (the "Certificates"), issued pursuant to a Amended and Restated Trust Agreement
(the "Trust Agreement") dated February 27, 2007 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 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, or, if the Transferee is a partnership, grantor trust or S
corporation for federal income tax purposes, the Certificates are not more than 50% of the
assets of the partnership, grantor trust or S corporation.
Very truly yours,
By:_________________________________
Name:
Title: