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) FORM OF CLASS SB-II CERTIFICATE THIS CLASS SB-II 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-II 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-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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-II CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE OF THIS CLASS SB-II 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-II 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: June 1, 2003 Date of Trust Agreement: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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
Appears in 1 contract
Sources: Trust Agreement (Residential Funding Mortgage Securities Ii Inc)
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 A-2 FORM OF CLASS SB-II B-2 CERTIFICATE THIS CLASS SB-II 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-II 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-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.05 OF THE AMENDED AND RESTATED TRUST AGREEMENT ("THE AGREEMENT")REFERRED TO HEREIN. NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE CERTIFI CATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II 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 PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY OR A PERSON ACTING, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY PERSON USING "PLAN ASSETS," WITHIN THE MEANING OF THE DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, TO ACQUIRE THIS CLASS SB-II CERTIFICATE (EACH, A "PLAN INVESTOR")SUCH PLAN, OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTORSUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, EITHER OR SECTION 4975 OF THE CODE (X) OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER PERSON WHO IS USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAWWILL NOT RESULT IN THE ASSETS OF THE OWNER TRUST ESTATE BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION UNDER WITHIN THE MEANING OF SECTION 406 OR SECTION 407 OF ERISA OR SECTION 4975 OF THE CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) CODE, AND WILL NOT SUBJECT THE DEPOSITOR, THE OWNER TRUSTEE, THE MASTER SERVICER TRUSTEE OR THE CERTIFICATE REGISTRAR DEPOSITOR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSELLIABILITY. THE TRANSFEREE NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL BE SUBJECT TO UNITED STATES FEDERAL WITHHOLDING TAX MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW. THIS CLASS SBCERTIFICATE IS A NON-II RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED IN RIGHT OF PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AS PROVIDED IN THE INDENTURE REFERRED TO BELOW. THE ISSUER IS NOT OTHERWISE PERSONALLY LIABLE FOR PAYMENTS ON THIS CERTIFICATE. THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE DEPOSITOR, THE MASTER SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE TRUST AGREEMENT OR THE OTHER BASIC DOCUMENTS. Certificate NoPRINCIPAL OF THIS CERTIFICATE IS PAYABLE OVER TIME AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. IMPAC SECURED ASSETS CMN TRUST SERIES 1998-1 Cut-off Date: June 1, 2003 Date of Trust Agreement: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 CLASS B-2
Appears in 1 contract
Sources: Trust Agreement (Impac Secured Assets CMN Trust Series 1998-1)
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 ________ 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 I-2 FORM OF CLASS SBR-II CERTIFICATE THIS CLASS SBCERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED HEREINBELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS ISSUED A "RESIDUAL INTEREST" IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERA "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE RESPECTIVELY, IN ACCORDANCE WITH SECTION 3.12 SECTIONS 860G AND 860D OF THE AGREEMENT. INTERNAL REVENUE CODE OF 1986 (THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 AGREEMENTCODE"). NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL MAY BE MADE TO ANY PERSON, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED TRANSFEREE PROVIDES EITHER (I) A REPRESENTATION LETTER FROM CERTIFICATION PURSUANT TO SECTION 3.05 OF THE TRANSFEREE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CLASS SBCERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE EXEMPT PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS UNDER SECTION 406 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 DEPOSITORSERVICER, THE OWNER TRUSTEE, THE MASTER SERVICER COMPANY OR THE CERTIFICATE REGISTRAR TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (YF) AN AGENT OF A CERTIFICATION DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS SB-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE SUBJECT DEEMED TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS CONSENTED TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW. PROVISIONS OF THIS CLASS SB-II 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 DOCUMENTSPARAGRAPH. Certificate No. 1 Class R-II Certificate Percentage Interest: 100% Cut-off Off Date: June November 1, 2003 2004 Date of Trust Agreement: June 26November 30, 2003 2004 First Payment Date: Certificate Percentage Interest of July 25December 27, 2003 this Certificate: 100% Assumed 2004 Final Payment Date: June 25, 2028 [ ] GMACM HOME EQUITY LOAN-BACKED CERTIFICATE CERTIFICATE, SERIES 20032004-HS2 HE5 evidencing a fractional undivided interest in GMACM Home Equity Loan Trust 2004-HE5 (the Owner Trust Estate"Trust"), the property of which consists primarily of the Home Equity Mortgage 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-II 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 SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliatesAffiliates. This Class SB-II Certificate is not guaranteed or insured by any governmental agency or instrumentality or by the Depositor, the SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliates. None of the Depositor, the SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee, GMAC Mortgage Group, Inc. Trustee or any of their affiliates 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 Auer & Co. GMAC Mortgage Corporation is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II Certificate (as set forth on the face hereof) in certain distributions with respect to the Owner Trust Estate, consisting primarily of the Home Equity Mortgage Loans, created by Residential Funding Asset Mortgage Securities IIProducts, Inc. (the "Depositor"). The Trust (as defined herein) was created pursuant to a Trust Agreement trust agreement dated as specified above of November 30, 2004 (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 Capitalized terms used herein that are not otherwise defined shall have the meanings assigned ascribed thereto in Appendix A to the Agreementindenture dated as of November 30, 2004, between the Trust and the Indenture Trustee. This Class SB-II Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder Certificateholder of this Class SB-II Certificate by virtue of the acceptance hereof assents and by which such Holder Certificateholder is bound. Pursuant to the terms of the Agreement, a distribution will be made on the 25th day of each month March, June, September and December 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-II 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-II Certificate (based on the Certificate Percentage Interest stated on the face hereon) of the Certificate Distribution Amountamount, if any, required to be distributed to Holders Certificateholders of Certificates on such Payment Date. Distributions on this Class SB-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II Certificate at the office or agency maintained Corporate Trust Office of the Certificate Registrar. This Certificate has no Certificate Balance. Each Certificateholder of this Certificate will be deemed to have agreed to be bound by the Certificate Registrar for that purpose restrictions set forth in the City Agreement to the effect that (i) each person holding or acquiring any Ownership Interest in this Certificate must be a United States Person and State a Permitted Transferee, (ii) the transfer of New York. The initial Security Balance any Ownership Interest in this Certificate will be conditioned upon the delivery to the Indenture Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any Ownership Interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any Ownership Interest in this Certificate in violation of such restrictions, then the Depositor will have the right, in its sole discretion and without notice to the Certificateholder of this Class SB-II Certificate, to sell this Certificate is set forth above. The Security Balance hereof will to a purchaser selected by the Depositor, which purchaser may be reduced to the extent Depositor, or any affiliate of the distributions allocable to principalDepositor, on such terms and conditions as the Depositor may choose. No transfer of this Class SBR-II 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, Indenture Trustee has received either (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 Depositor and the Depositor. The Holder hereof desiring Servicer with respect to effect the permissibility of such transfer shallunder the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and does hereby agree toSection 4975 of the Internal Revenue Code (the "Code") and stating, indemnify among other things, that the Trust, transferee's acquisition of a Class R Certificate will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of 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 Code 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 (iii) 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 provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other person (including an investment manager, a named fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of or purchasing any such Plan or any Person using the Certificate with "plan assets," within the meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counselPlan. This Class SB-II Certificate is one of a duly authorized issue of Certificates designated as GMACM Home Equity Loan-Backed Certificates of the Series specified hereon (herein collectively called the "Certificates"). All terms used in The Certificateholder of this Class SB-II Certificate which are defined in the Agreement shall have the meanings assigned to them in the Agreement. The CertificateholderCertificate, by its acceptance of this Class SB-II Certificatehereof, 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-II Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement. The Holder Certificateholder of this Class SB-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders and the Enhancer as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 TrustDepositor, 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 other 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 and the Enhancer 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 any such 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 HolderCertificateholder, but the Owner Trustee shall be furnished with a letter from each Rating Agency to the Rating Agencies effect that the such amendment will not result in the downgrading or withdrawal of the rating then assigned to any Security if cause a Rating Event, determined without regard to the Policy and the consent of the Credit Enhancer shall be obtainedPolicy. If the purpose of the any such amendment is to prevent the imposition of any federal or state taxes at any time that any Security is outstandingOutstanding, it shall not be necessary to obtain the consent of the any HolderCertificateholder, but the Owner Trustee and the 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 and the consent of the Credit Enhancer shall be obtainedCertificateholder. 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 each Rating Agency to the Rating Agencies effect that the such amendment will not result in the downgrading or withdrawal of the rating then assigned to any Securitycause a Rating Event, if determined without regard to the Policy or (b) the consent of Holders Certificateholders 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 Enhancerall Certificateholders affected thereby, or (ii) reduce the aforesaid percentage of Certificates the Holders Certificateholders of which are required to consent to any such amendment without the consent of the Holders Certificateholders 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II Certificate for registration of transfer at the offices or agencies Corporate Trust Office of the Certificate Registrar maintained in the City and State of New YorkRegistrar, accompanied by a written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder Certificateholder hereof or such HolderCertificateholder's attorney duly authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same Class and aggregate Certificate Percentage Interest will be issued to the designated transferee. The initial Certificate Registrar appointed under the Agreement is the Indenture Owner 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 Certificateholder surrendering the same. This Certificate is issued in the Percentage Interest above. No service charge will be made for any such registration of transfer or exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith. The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee, the Certificate Paying Agent, the Certificate Registrar or any such agent shall be affected by any notice to the contrary. This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware. The obligations created by the Agreement in respect of this Certificate and the Trust created thereby shall terminate upon the final distribution of all moneys or other property or proceeds of the Trust Estate in accordance with the terms of the Indenture and the Agreement. Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Owner Trustee, or an authenticating agent by manual signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose. [Signature Page Follows]
Appears in 1 contract
Sources: Trust Agreement (Gmacm Home Equity Loan Trust 2004-He5)
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) FORM OF CLASS SB-II CERTIFICATE THIS CLASS SB-II 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-II 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-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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-II CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE OF THIS CLASS SB-II 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-II 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: June December 1, 2003 2005 Date of Trust Agreement: June 26December 29, 2003 2005 First Payment Date: Certificate Percentage Interest of July January 25, 2003 2006 this Certificate: 100% Assumed Final Payment Date: June 25December 26, 2028 2035 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 20032005-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer Pramwave & Co. is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five four Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III II Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26December 29, 20032005, between Home Equity Loan Trust 20032005-HS2 HSA1 (the "Trust") and JPMorgan Chase Bank, N.A., 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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-II Certificate is issued in the Certificate Percentage Interest above; however, the Certificate Percentage Interest of this Class SB-II Certificate may change in a
Appears in 1 contract
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 __________. By:_________________________________ 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 C FORM OF CLASS SB-II RESIDUAL INTEREST CERTIFICATE THIS CLASS SB-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND TO THE VARIABLE FUNDING NOTES OTHER CLASSES OF CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN)TRUST AGREEMENT. THIS CLASS SB-II CERTIFICATE IS NOT TRANSFERABLE EXCEPT UPON SATISFACTION OF THE CONDITIONS IN SECTION 3.14 OF THE TRUST AGREEMENT. THIS 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-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THE TRUST REPRESENTED BY THIS CLASS SB-II CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDEDAMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A U.S. PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF RULE 3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT LIMITED TO, THE DEPOSITOR, AN AFFILIATE THEREOF, UNITED NATIONAL BANK OR AN AFFILIATE THEREOF) IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR 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")SECURITIES LAWS. NO TRANSFER OF THIS CLASS SB-II CERTIFICATE OR ANY BENEFICIAL INTEREST HEREIN SHALL BE MADE TO ANY PERSON UNLESS THE OWNER TRUSTEE HAS RECEIVED A CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE (I) IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a) OF THE CODE; (II) IS NOT A PERSON WHICH IS AN EMPLOYEE BENEFIT PLAN, TRUST OR OTHER PLAN ACCOUNT SUBJECT TO THE PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS TITLE I 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 A GOVERNMENTAL PLAN, DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (ANY SUBSEQUENT ENACTMENTSSUCH PERSON BEING A "PLAN") AND WILL (III) IS NOT SUBJECT AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE ACCOUNT OR GENERAL ACCOUNT, WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE DEPOSITORENTITY. THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF UNLESS, PRIOR TO SUCH DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE OWNER TRUSTEE, THE MASTER SERVICER OR TRUSTEE AND THE CERTIFICATE REGISTRAR A CERTIFICATE STATING THAT SUCH TRANSFEREE (A) AGREES TO ANY OBLIGATION OR LIABILITY IN ADDITION BE BOUND BY AND TO THOSE UNDERTAKEN IN ABIDE BY THE AGREEMENT, OR TRANSFER RESTRICTIONS APPLICABLE TO THIS CERTIFICATE; (YB) A CERTIFICATION IN IS NOT AN ENTITY THAT WILL HOLD THIS CERTIFICATE AS NOMINEE TO FACILITATE THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU CLEARANCE AND SETTLEMENT OF SUCH OPINION SECURITY THROUGH ELECTRONIC BOOK-ENTRY CHANGES IN ACCOUNTS OF COUNSEL. PARTICIPATING ORGANIZATIONS; AND (C) UNDERSTANDS THAT IT MUST TAKE INTO ACCOUNT ITS PERCENTAGE INTEREST OF THE TRANSFEREE OF TAXABLE INCOME RELATING TO THIS CLASS SB-II 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. LAWCERTIFICATE. THIS CLASS SB-II CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE DEPOSITOR, THE MASTER SERVICER, THE INDENTURE OWNER TRUSTEE, THE CO-OWNER TRUSTEE, THE INDENTURE 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: June 1, 2003 Date of Trust Agreement: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 .
Appears in 1 contract
Sources: Trust Agreement (Bear Stearns Asset Backed Securities Inc)
DISTRIBUTION INSTRUCTIONS. The assignee should include the following for the information of the Certificate Paying Agent: Distribution Registrar. Distributions shall be made by wire transfer in immediately available funds to for the account of the assignee named above, or ______________________________________ 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) FORM OF CLASS SB-II CERTIFICATE THIS CLASS SB-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN)as its agent. THIS CLASS SB-II CERTIFICATE EVIDENCES OWNERSHIP OF A REMIC RESIDUAL INTEREST. THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS ISSUED IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERNOT GUARANTEED BY, THE PERCENTAGE INTEREST DEPOSITOR, THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER OR ANY AFFILIATE OF THIS CERTIFICATE MAY CHANGE IN ACCORDANCE WITH SECTION 3.12 ANY OF THE AGREEMENT. THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO THEM AND IS NOT INSURED OR GUARANTEED BY ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTIONGOVERNMENTAL AGENCY OR PRIVATE INSURER. THIS CLASS SB-II CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDEDAMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE AND OR OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR 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 SUBJECT TO, REGISTRATION UNDER SUCH SECURITIES LAWS. THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) TO PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO THE DEPOSITOR OR AN AFFILIATE (AS DEFINED IN RULE 405 UNDER THE 1933 ACT) OR (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE 1933 ACT THAT IS ACQUIRING THE CERTIFICATE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND UNDER APPLICABLE LAWS NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION VIOLATION OF THE 1933 ACT, SUBJECT TO THE CERTIFICATE REGISTRAR'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN THE POOLING AND SERVICING AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE DEPOSITOR AND THE CERTIFICATE REGISTRAR, ON BEHALF OF THE TRUSTEE THAT SUCH TRANSFEREE IS TRANSFERRED NOT A “DISQUALIFIED ORGANIZATION” WITHIN THE MEANING OF SECTION 860E(e)(5) OF THE CODE AND WILL NOT BE A “DISQUALIFIED ORGANIZATION” AS OF THE DATE OF TRANSFER, AND THAT THE TRANSFEREE IS NOT ACQUIRING THIS CERTIFICATE FOR THE ACCOUNT OF, OR AS AGENT (INCLUDING A BROKER, NOMINEE, OR OTHER MIDDLEMAN) FOR, ANY PERSON OR ENTITY FROM WHICH IT HAS NOT RECEIVED A TRANSFER AFFIDAVIT SUBSTANTIALLY IN ACCORDANCE WITH THE FORM OF THE TRANSFER AFFIDAVIT PROVIDED BY SUCH TRANSFEREE. FOR THESE PURPOSES, A “DISQUALIFIED ORGANIZATION” MEANS THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL ENTITY), ANY COOPERATIVE ORGANIZATION FURNISHING ELECTRIC ENERGY OR PROVIDING TELEPHONE SERVICE TO PERSONS IN RURAL AREAS AS DESCRIBED IN CODE SECTION 1381(a)(2)(C), ANY “ELECTING LARGE PARTNERSHIP” WITHIN THE MEANING OF SECTION 775 OF THE CODE, OR ANY ORGANIZATION (OTHER THAN A FARMERS’ COOPERATIVE DESCRIBED IN CODE SECTION 521) THAT IS EXEMPT FROM FEDERAL INCOME TAX UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX ON UNRELATED BUSINESS INCOME IMPOSED BY CODE SECTION 511. SUCH AFFIDAVIT SHALL INCLUDE CERTAIN REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND ITS STATUS AS A NON-US PERSON (IF APPLICABLE). NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF SECTION 3.05 OF THE AMENDED AND RESTATED TRUST AGREEMENT ("THE AGREEMENT")THIS PARAGRAPH. NO TRANSFER OF THIS CLASS SB-II CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN ANY EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT SUBJECT TO THE PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("“ERISA"”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "“CODE"”), OR ANY PERSON ACTING(INCLUDING AN INSURANCE COMPANY INVESTING ITS GENERAL ACCOUNT, DIRECTLY AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR INDIRECTLY, ON BEHALF A TRUSTEE OF ANY SUCH PLAN) WHO IS USING “PLAN ASSETS” OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION. EACH INVESTOR IN THIS CERTIFICATE WILL BE DEEMED TO REPRESENT THAT IT IS IN COMPLIANCE WITH THE FOREGOING AND WILL BE FURTHER DEEMED TO REPRESENT, WARRANT AND COVENANT THAT IT WILL NOT SELL, PLEDGE OR ANY PERSON USING "PLAN ASSETS," WITHIN THE MEANING OTHERWISE TRANSFER SUCH ERISA-RESTRICTED CERTIFICATE IN VIOLATION OF THE DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, TO ACQUIRE THIS CLASS SB-II FOREGOING. ANY PURPORTED CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OWNER WHOSE ACQUISITION OR HOLDING OF THIS CLASS SB-II CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE (OR RESULT INTEREST THEREIN) WAS EFFECTED IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 VIOLATION OF THE CODE (OR COMPARABLE PROVISIONS RESTRICTIONS IN SECTION 3.03 OF ANY SUBSEQUENT ENACTMENTS) THE POOLING AND WILL NOT SUBJECT SERVICING AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE CERTIFICATE REGISTRAR, 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, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE OF THIS CLASS SB-II 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-II CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE DEPOSITOR, THE MASTER SERVICER, THE INDENTURE TRUSTEESECURITIES ADMINISTRATOR, THE OWNER TRUSTEE CUSTODIAN, THE SERVICERS, THE SERVICING ADMINISTRATOR, ANY SUBSERVICERS, THE INITIAL PURCHASERS AND THE TRUST FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR ANY EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT SUCH ACQUISITION OR THE OTHER BASIC DOCUMENTSHOLDING. Certificate No. 1 Evidencing a beneficial interest in a pool of residential mortgage loans and any other assets established by Percentage Interest of this Cut-off Date: June April 1, 2003 Date of Trust Agreement: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this 2015 Certificate: 100% Assumed Final Payment Scheduled Distribution Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 April 2046
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Five Oaks Investment Corp.)
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) FORM OF CLASS SBR-II III CERTIFICATES THIS CERTIFICATE THIS CLASS SBMAY NOT BE HELD BY OR TRANSFERRED TO A NON-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED HEREINBELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS ISSUED A "RESIDUAL INTEREST" IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERA "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE RESPECTIVELY, IN ACCORDANCE WITH SECTION 3.12 SECTIONS 860G AND 860D OF THE AGREEMENT. INTERNAL REVENUE CODE OF 1986 (THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 AGREEMENTCODE"). NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL MAY BE MADE TO ANY PERSON, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED TRANSFEREE PROVIDES EITHER (IA CERTIFICATION PURSUANT TO SECTION 3.05(b)(v)(B)(I) A REPRESENTATION LETTER FROM OF THE TRANSFEREE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CLASS SBCERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE EXEMPT PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS UNDER SECTION 406 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 DEPOSITORSERVICER, THE OWNER TRUSTEE, THE MASTER SERVICER COMPANY OR THE CERTIFICATE REGISTRAR TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (YF) AN AGENT OF A CERTIFICATION DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS SB-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE SUBJECT DEEMED TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS CONSENTED TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAWPROVISIONS OF THIS PARAGRAPH. THIS CLASS SB-II 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: June March 1, 2003 2004 Date of Trust Agreement: June 26March 29, 2003 2004 First Payment Date: Certificate Percentage Interest of July 25April 26, 2003 2004 this Certificate: 100% Assumed Final Payment Date: June March 25, 2028 2034 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 20032004-HS2 HS1 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. Residential Funding Corporation is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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 Each Certificateholder of this Class SB-II Certificate is will be deemed to have agreed to be bound by the restrictions set forth above. The Security Balance hereof in the Agreement to the effect that (i) each person holding or acquiring any Ownership Interest in this Certificate must be a United States Person and a Permitted Transferee, (ii) the transfer of any Ownership Interest in this Certificate will be reduced conditioned upon the delivery to the extent Indenture Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any Ownership Interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any Ownership Interest in this Certificate in violation of such restrictions, then the Depositor will have the right, in its sole discretion and without notice to the Certificateholder of this Certificate, to sell this Certificate to a purchaser selected by the Depositor, which purchaser may be the Depositor, or any affiliate of the distributions allocable to principalDepositor, on such terms and conditions as the Depositor may choose. No transfer of this Class SBR-II III 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 has received (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 (a "Plan"), any person acting, directly or indirectly, on behalf of any such Plan plan or any Person person using the "plan assets," within the meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate such transferee is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel acceptable to and in form and substance satisfactory to the Depositor, the Owner Trustee, the Master Servicer and the Certificate Registrar, to the effect that the purchase or holding of this a Class SB-II R Certificate is permissible under applicable law, will not constitute or result in a non-exempt 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26March 29, 20032004, between Home Equity Loan Trust 20032004-HS2 HS1 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 Certificate is issued in the Certificate Percentage Interest above; however, the Certificate Percentage Interest of this Certificate may change in accordance with Section 3.12 of the Agreement. The Holder of this 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 Certificate is registered as the owner hereof for all purposes, and none of the Owner Trust
Appears in 1 contract
Sources: Trust Agreement (Residential Funding Mortgage Sec Ii Inc Hm Eq Ln Tr 2004-Hs1)
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 to__________________. ------------------------------ Signature of assignee or agent (for authorization of wire transfer only) FORM OF CLASS SB▇▇▇▇▇▇▇ ▇-II CERTIFICATE ▇ [Form of Class B-2 Certificate] THIS CLASS SB-II 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-II 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-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.05 OF THE AMENDED AND RESTATED TRUST AGREEMENT ("THE AGREEMENT")REFERRED TO HEREIN. NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE CERTIFI CATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II 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 PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY OR A PERSON ACTING, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY PERSON USING "PLAN ASSETS," WITHIN THE MEANING OF THE DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, TO ACQUIRE THIS CLASS SB-II CERTIFICATE (EACH, A "PLAN INVESTOR")SUCH PLAN, OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTORSUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, EITHER OR SECTION 4975 OF THE CODE (X) OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER PERSON WHO IS USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAWWILL NOT RESULT IN THE ASSETS OF THE OWNER TRUST ESTATE BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION UNDER WITHIN THE MEANING OF SECTION 406 OR SECTION 407 OF ERISA OR SECTION 4975 OF THE CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) CODE, AND WILL NOT SUBJECT THE DEPOSITOR, THE OWNER TRUSTEE, THE MASTER SERVICER TRUSTEE OR THE CERTIFICATE REGISTRAR DEPOSITOR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSELLIABILITY. THE TRANSFEREE NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL BE SUBJECT TO UNITED STATES FEDERAL WITHHOLDING TAX MADE UNLESS THE CERTIFICATE CERTIFI CATE 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 SBCERTIFICATE IS A NON-II CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR RECOURSE OBLIGATION OF THE SELLERISSUER, AND IS LIMITED IN RIGHT OF PAYMENT TO AMOUNTS AVAILABLE FROM THE DEPOSITOR, THE MASTER SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT TRUST ESTATE AS EXPRESSLY PROVIDED IN THE AGREEMENT OR INDENTURE REFERRED TO BELOW. THE OTHER BASIC DOCUMENTS. Certificate No. 1 Cut-off Date: June 1, 2003 Date of Trust Agreement: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 ISSUER IS NOT OTHERWISE PERSONALLY LIABLE FOR PAYMENTS ON THIS
Appears in 1 contract
Sources: Trust Agreement (Southern Pacific Secured Assets Corp)
DISTRIBUTION INSTRUCTIONS. The assignee should include the following for the information of the Certificate Paying Agent: Distribution Registrar. Distributions shall be made by wire transfer in immediately available funds to ------------------------------------------------------------------------------ for the account of ___________________________________________________________ for the account of number ________________, account number ______________, _ or, if mailed by check, to _________________ -----------------------------------------------------------------------------. Applicable reports and statements should be mailed to ________________________ -----------------------------------------------------------------------------. ------------------------------ Signature of This information is provided by _____________________________________ the assignee or agent (for authorization of wire transfer only) name EXHIBIT A-4 FORM OF CLASS SB-II M-2 CERTIFICATE THIS CLASS SB-II CERTIFICATE IS SUBORDINATED A FASIT REGULAR INTEREST CERTIFICATE. THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY, THE DEPOSITOR, THE TRUSTEE, OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR PRIVATE INSURER. DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE MAY BE MADE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN). THIS CLASS SB-II 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-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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")REFERRED TO HEREIN. NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL BE MADE REGISTERED UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER PROSPECTIVE TRANSFEREE PROVIDES THE TRUSTEE AND THE DEPOSITOR WITH (IA) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II CERTIFICATE CERTIFICATION TO THE EFFECT THAT SUCH TRANSFEREE (1) IS NOT NEITHER AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS SECTION 406 OR SECTION 407 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"), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY SUCH PLAN OR ANY NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (2) IF SUCH TRANSFEREE IS AN INSURANCE COMPANY, SUCH TRANSFEREE IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN AN "PLAN ASSETS,INSURANCE COMPANY GENERAL ACCOUNT" WITHIN THE MEANING (AS SUCH TERM IS DEFINED IN SECTION V(e) OF THE DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3PROHIBITED TRANSACTION CLASS EXEMPTION 95-101, TO ACQUIRE THIS CLASS SB60 ("PTCE 95-II CERTIFICATE (EACH, A "PLAN INVESTOR60"), ) AND THAT THE PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER PTCE 95-60; OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (XB) AN OPINION OF COUNSEL (A "BENEFIT PLAN OPINION") SATISFACTORY TO THE TRUSTEE AND THE DEPOSITOR, AND UPON WHICH THE TRUSTEE AND THE DEPOSITOR SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II SUCH CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, BY THE PROSPECTIVE TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE PLAN ASSETS AND SUBJECT TO THE PROHIBITED TRANSACTION UNDER SECTION 406 PROVISIONS 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 TRUSTEE OR THE CERTIFICATE REGISTRAR DEPOSITOR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE TRUST AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE OR THE DEPOSITOR. THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (YC) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE 1933 ACT THAT IS ACQUIRING THE CERTIFICATE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A CERTIFICATION VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE 1933 ACT, SUBJECT TO THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN THE TRUST AGREEMENT. [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EXHIBIT G THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE AGREEMENT ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN LIEU THE NAME OF CEDE & CO. OR IN SUCH OPINION OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF COUNSELDTC AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, INASMUCH AS THE TRANSFEREE OF THIS CLASS SB-II 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-II CERTIFICATE DOES NOT REPRESENT REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST IN OR OBLIGATION OF THE SELLERHEREIN.] AMERICAN RESIDENTIAL EAGLE CERTIFICATE TRUST 1998-1 MORTGAGE-BACKED CALLABLE CERTIFICATES, THE DEPOSITORSERIES 1998-1 CLASS M-2 Evidencing a beneficial interest in a single Collateralized Callable Mortgage Bond issued by American Residential Eagle Bond Trust 1998-1 and other assets in a trust fund established by AMERICAN RESIDENTIAL EAGLE, 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 DOCUMENTSINC. Initial Aggregate Certificate No. 1 Initial Certificate Principal Amount of the Class M-2 Principal Amount of this Certificates: $17,365,000.00 Certificate: $17,365,000.00 Certificate Cut-off Date: June May 1, 2003 Date of Trust Agreement1998 Interest Rate: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 Variable
Appears in 1 contract
DISTRIBUTION INSTRUCTIONS. The assignee should include the following for the information of the Certificate Paying Agent: Distribution Registrar. Distributions shall be made by wire transfer in immediately available funds to ------------------------------------------------------------------------------- for the account of ___________________________________________________________ for the account of number ________________, account number ______________, _ or, if mailed by check, to _________________ -----------------------------------------------------------------------------. Applicable reports and statements should be mailed to ________________________ ----------------------------------------------------------------------------- This information is provided by_________________________________________ the assignee named above, or ____________________________________ as its agent. ------------------------------ Signature of assignee or agent (for authorization of wire transfer only) EXHIBIT A-2 FORM OF CLASS SB-II A-2 CERTIFICATE THIS CLASS SB-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN)A FASIT REGULAR INTEREST CERTIFICATE. THIS CLASS SB-II 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-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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-II CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE OF THIS CLASS SB-II 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-II CERTIFICATE DOES NOT REPRESENT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN OR OBLIGATION OF THE SELLERIN, AND IS NOT GUARANTEED BY, THE DEPOSITOR, THE MASTER SERVICERTRUSTEE, OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR PRIVATE INSURER. DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE MAY BE MADE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE INDENTURE TRUSTEECERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE OWNER TRUSTEE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED CERTIFICATE ISSUED IS REGISTERED IN THE AGREEMENT NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, INASMUCH AS THE OTHER BASIC DOCUMENTSREGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.] AMERICAN RESIDENTIAL EAGLE CERTIFICATE TRUST 1998-1 MORTGAGE-BACKED CALLABLE CERTIFICATES, SERIES 1998-1 CLASS A-2 Evidencing a beneficial interest in a single Collateralized Callable Mortgage Bond issued by American Residential Eagle Bond Trust 1998-1 and other assets in a trust fund established by AMERICAN RESIDENTIAL EAGLE, INC. Initial Aggregate Certificate No. 1 Initial Certificate Principal Amount of the Class A-2 Principal Amount of this Certificates: $232,093,000.00 Certificate: $232,093,000.00 Certificate Cut-off Date: June May 1, 2003 Date of Trust Agreement1998 Interest Rate: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 Variable
Appears in 1 contract
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) FORM OF CLASS SB-II CERTIFICATE THIS CLASS SB-II 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-II 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-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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-II CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE OF THIS CLASS SB-II 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-II 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: June March 1, 2003 2004 Date of Trust Agreement: June 26March 29, 2003 2004 First Payment Date: Certificate Percentage Interest of July 25April 26, 2003 2004 this Certificate: 100% Assumed Final Payment Date: June March 25, 2028 2034 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 20032004-HS2 HS1 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇own▇▇ of ▇f the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26March 29, 20032004, between Home Equity Loan Trust 20032004-HS2 HS1 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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-II Certificate is issued in the Certificate Percentage Interest above; however, the Certificate Percentage Interest of this Class SB-II Certificate may change in accord
Appears in 1 contract
Sources: Trust Agreement (Residential Funding Mortgage Sec Ii Inc Hm Eq Ln Tr 2004-Hs1)
DISTRIBUTION INSTRUCTIONS. The assignee should include the following for the information of the Certificate Paying Agent: Distribution Registrar. Distributions shall be made by wire transfer in immediately available funds to for the account of account number _______________________ or, if mailed by check, to Applicable reports and statements should be mailed to This information is provided by the assignee named above, or ______________________________________ 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) FORM OF CLASS SB-II CERTIFICATE THIS CLASS SB-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN)as its agent. THIS CLASS SB-II CERTIFICATE EVIDENCES OWNERSHIP OF A REMIC RESIDUAL INTEREST. THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS ISSUED IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERNOT GUARANTEED BY, THE PERCENTAGE INTEREST DEPOSITOR, THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER OR ANY AFFILIATE OF THIS CERTIFICATE MAY CHANGE IN ACCORDANCE WITH SECTION 3.12 ANY OF THE AGREEMENT. THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO THEM AND IS NOT INSURED OR GUARANTEED BY ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTIONGOVERNMENTAL AGENCY OR PRIVATE INSURER. THIS CLASS SB-II CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDEDAMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE AND OR OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR 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 SUBJECT TO, REGISTRATION UNDER SUCH SECURITIES LAWS. THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) TO PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO THE DEPOSITOR OR AN AFFILIATE (AS DEFINED IN RULE 405 UNDER THE 1933 ACT) OR (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE 1933 ACT THAT IS ACQUIRING THE CERTIFICATE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND UNDER APPLICABLE LAWS NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION VIOLATION OF THE 1933 ACT, SUBJECT TO THE CERTIFICATE REGISTRAR'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN THE POOLING AND SERVICING AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE DEPOSITOR AND THE CERTIFICATE REGISTRAR, ON BEHALF OF THE TRUSTEE THAT SUCH TRANSFEREE IS TRANSFERRED NOT A “DISQUALIFIED ORGANIZATION” WITHIN THE MEANING OF SECTION 860E(e)(5) OF THE CODE AND WILL NOT BE A “DISQUALIFIED ORGANIZATION” AS OF THE DATE OF TRANSFER, AND THAT THE TRANSFEREE IS NOT ACQUIRING THIS CERTIFICATE FOR THE ACCOUNT OF, OR AS AGENT (INCLUDING A BROKER, NOMINEE, OR OTHER MIDDLEMAN) FOR, ANY PERSON OR ENTITY FROM WHICH IT HAS NOT RECEIVED A TRANSFER AFFIDAVIT SUBSTANTIALLY IN ACCORDANCE WITH THE FORM OF THE TRANSFER AFFIDAVIT PROVIDED BY SUCH TRANSFEREE. FOR THESE PURPOSES, A “DISQUALIFIED ORGANIZATION” MEANS THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL ENTITY), ANY COOPERATIVE ORGANIZATION FURNISHING ELECTRIC ENERGY OR PROVIDING TELEPHONE SERVICE TO PERSONS IN RURAL AREAS AS DESCRIBED IN CODE SECTION 1381(a)(2)(C), ANY “ELECTING LARGE PARTNERSHIP” WITHIN THE MEANING OF SECTION 775 OF THE CODE, OR ANY ORGANIZATION (OTHER THAN A FARMERS’ COOPERATIVE DESCRIBED IN CODE SECTION 521) THAT IS EXEMPT FROM FEDERAL INCOME TAX UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX ON UNRELATED BUSINESS INCOME IMPOSED BY CODE SECTION 511. SUCH AFFIDAVIT SHALL INCLUDE CERTAIN REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND ITS STATUS AS A NON-US PERSON (IF APPLICABLE). NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF SECTION 3.05 OF THE AMENDED AND RESTATED TRUST AGREEMENT ("THE AGREEMENT")THIS PARAGRAPH. NO TRANSFER OF THIS CLASS SB-II CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN ANY EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT SUBJECT TO THE PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("“ERISA"”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "“CODE"”), OR ANY PERSON ACTING(INCLUDING AN INSURANCE COMPANY INVESTING ITS GENERAL ACCOUNT, DIRECTLY AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR INDIRECTLY, ON BEHALF A TRUSTEE OF ANY SUCH PLAN) WHO IS USING “PLAN ASSETS” OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION. EACH INVESTOR IN THIS CERTIFICATE WILL BE DEEMED TO REPRESENT THAT IT IS IN COMPLIANCE WITH THE FOREGOING AND WILL BE FURTHER DEEMED TO REPRESENT, WARRANT AND COVENANT THAT IT WILL NOT SELL, PLEDGE OR ANY PERSON USING "PLAN ASSETS," WITHIN THE MEANING OTHERWISE TRANSFER SUCH ERISA-RESTRICTED CERTIFICATE IN VIOLATION OF THE DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, TO ACQUIRE THIS CLASS SB-II FOREGOING. ANY PURPORTED CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OWNER WHOSE ACQUISITION OR HOLDING OF THIS CLASS SB-II CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE (OR RESULT INTEREST THEREIN) WAS EFFECTED IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 VIOLATION OF THE CODE (OR COMPARABLE PROVISIONS RESTRICTIONS IN SECTION 3.03 OF ANY SUBSEQUENT ENACTMENTS) THE POOLING AND WILL NOT SUBJECT SERVICING AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE CERTIFICATE REGISTRAR, 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, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE OF THIS CLASS SB-II 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-II CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE DEPOSITOR, THE MASTER SERVICER, THE INDENTURE TRUSTEESECURITIES ADMINISTRATOR, THE OWNER TRUSTEE CUSTODIAN, THE SERVICERS, THE SERVICING ADMINISTRATOR, ANY SUBSERVICERS, THE INITIAL PURCHASERS AND THE TRUST FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR ANY EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT SUCH ACQUISITION OR THE OTHER BASIC DOCUMENTSHOLDING. Certificate No. 1 Evidencing a beneficial interest in a pool of residential mortgage loans and any other assets established by Percentage Interest of this Cut-off Date: June 1, 2003 Date of Trust Agreement: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this [___] Certificate: 100% Assumed Final Payment Scheduled Distribution Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 [___]
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Five Oaks Investment Corp.)
DISTRIBUTION INSTRUCTIONS. The assignee should include the following for the information of the Certificate Paying Agent: Distribution Registrar. Distributions shall be made by wire transfer in immediately available funds to ------------------------------------------------------------------------------ for the account of ___________________________________________________________ for the account of number ________________, account number ______________, _ or, if mailed by check, to _________________ -----------------------------------------------------------------------------. Applicable reports and statements should be mailed to ________________________ -----------------------------------------------------------------------------. ------------------------------ Signature of This information is provided by _____________________________________ the assignee or agent (for authorization of wire transfer only) name EXHIBIT A-7 FORM OF CLASS SB-II O CERTIFICATE THIS CLASS SB-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN)A FASIT OWNERSHIP INTEREST CERTIFICATE. THIS CLASS SB-II CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY, THE DEPOSITOR, THE TRUSTEE, OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR PRIVATE INSURER. THIS CERTIFICATE IS ISSUED IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVER, THE PERCENTAGE INTEREST NOT ENTITLED TO DISTRIBUTIONS OF THIS CERTIFICATE MAY CHANGE IN ACCORDANCE WITH SECTION 3.12 OF THE AGREEMENTPRINCIPAL AND WILL NOT ACCRUE INTEREST. THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS WILL BE ENTITLED ONLY TO CERTAIN LIMITED DISTRIBUTIONS AS PROVIDED IN THE TRUST AGREEMENT. NEITHER THIS CERTIFICATE, NOR ANY BENEFICIAL INTEREST IN THIS CERTIFICATE, MAY BE TRANSFERRED, SOLD, PLEDGED, OR OTHERWISE DISPOSED OF UNLESS PRIOR TO SUCH DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE AN AFFIDAVIT STATING (i) THAT THE PROPOSED TRANSFEREE IS AND ELIGIBLE CORPORATION WITHIN THE MEANING OF SECTION 860L(A)(2) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND WILL BE AN ELIGIBLE CORPORATION AS OF THE DATE OF TRANSFER, AND THAT THE PROPOSED TRANSFEREE IS NOT ACQUIRING THIS CERTIFICATE FOR THE ACCOUNT OF, OR AS AGENT (INCLUDING A BROKER, NOMINEE, OR OTHER MIDDLEMAN) FOR, ANY PERSON OR ENTITY FROM WHICH IT HAS NOT RECEIVED AN AFFIDAVIT SUBSTANTIALLY IN THE FORM EXHIBIT D-1 TO THE TRUST AGREEMENT. FOR THESE PURPOSES, AN ELIGIBLE CORPORATION IS ANY DOMESTIC C CORPORATION OTHER THAN (I) A CORPORATION THAT IS EXEMPT FROM OR IS NOT SUBJECT TO FEDERAL INCOME TAX, (II) AN INVESTMENT COMPANY THAT COULD QUALIFY AS A REGULATED INVESTMENT COMPANY UNDER SECTION 851(A) OF THE CODE, (III) A REMIC (AS DEFINED IN THE CODE), OR (IV) A COOP TO WHICH SUBCHAPTER T OF THE CODE APPLIES. THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE 1933 ACT THAT IS ACQUIRING THE CERTIFICATE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE 1933 ACT, SUBJECT TO THE TRUSTEE'S RIGHT PRIOR TO ANY CHANGE SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF A CERTIFICATE OF TRANSFER IN ITS CERTIFICATE PERCENTAGE INTEREST THE FORM APPEARING IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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-II CERTIFICATE SHALL BE MADE REGISTERED UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER PROSPECTIVE TRANSFEREE PROVIDES THE TRUSTEE AND THE DEPOSITOR WITH (IA) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II CERTIFICATE CERTIFICATION TO THE EFFECT THAT SUCH TRANSFEREE (1) IS NOT NEITHER AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS SECTION 406 OR SECTION 407 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"), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY SUCH PLAN OR ANY NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (2) IF SUCH TRANSFEREE IS AN INSURANCE COMPANY, SUCH TRANSFEREE IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN AN "PLAN ASSETS,INSURANCE COMPANY GENERAL ACCOUNT" WITHIN THE MEANING (AS SUCH TERM IS DEFINED IN SECTION V(e) OF THE DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3PROHIBITED TRANSACTION CLASS EXEMPTION 95-101, TO ACQUIRE THIS CLASS SB60 ("PTCE 95-II CERTIFICATE (EACH, A "PLAN INVESTOR60"), ) AND THAT THE PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER PTCE 95-60; OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (XB) AN OPINION OF COUNSEL (A "BENEFIT PLAN OPINION") SATISFACTORY TO THE TRUSTEE AND THE DEPOSITOR, AND UPON WHICH THE TRUSTEE AND THE DEPOSITOR SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II SUCH CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, BY THE PROSPECTIVE TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE PLAN ASSETS AND SUBJECT TO THE PROHIBITED TRANSACTION UNDER SECTION 406 PROVISIONS 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 TRUSTEE OR THE CERTIFICATE REGISTRAR DEPOSITOR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE TRUST AGREEMENT, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH WHICH OPINION OF COUNSEL. THE TRANSFEREE OF THIS CLASS SB-II CERTIFICATE COUNSEL SHALL NOT 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-II CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION EXPENSE OF THE SELLER, TRUSTEE OR THE DEPOSITOR. AMERICAN RESIDENTIAL EAGLE CERTIFICATE TRUST 1998-1 MORTGAGE-BACKED CALLABLE CERTIFICATES, THE MASTER SERVICERSERIES 1998-1 CLASS O Evidencing a beneficial interest in a single Collateralized Callable Mortgage Bond issued by American Residential Eagle Bond Trust 1998-1 and other assets in a trust fund established by AMERICAN RESIDENTIAL EAGLE, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT OR THE OTHER BASIC DOCUMENTSINC. Certificate No. 1 Percentage Interest: 100% Cut-off Date: June May 1, 2003 Date of Trust Agreement: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 1998
Appears in 1 contract
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 ______________________________ 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) only FORM OF CLASS SBR-II III CERTIFICATE THIS CLASS SBCERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED HEREINBELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS ISSUED A "RESIDUAL INTEREST" IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERA "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE RESPECTIVELY, IN ACCORDANCE WITH SECTION 3.12 SECTIONS 860G AND 860D OF THE AGREEMENT. INTERNAL REVENUE CODE OF 1986 (THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 AGREEMENTCODE"). NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL MAY BE MADE TO ANY PERSON, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED TRANSFEREE PROVIDES EITHER (I) A REPRESENTATION LETTER FROM CERTIFICATION PURSUANT TO SECTION 3.05 OF THE TRANSFEREE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CLASS SBCERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE EXEMPT PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS UNDER SECTION 406 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 DEPOSITORSERVICER, THE OWNER TRUSTEE, THE MASTER SERVICER COMPANY OR THE CERTIFICATE REGISTRAR TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (YF) AN AGENT OF A CERTIFICATION DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS SB-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE SUBJECT DEEMED TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS CONSENTED TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW. PROVISIONS OF THIS CLASS SB-II 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 DOCUMENTSPARAGRAPH. Certificate No. 1 Class R-III Certificate Cut-off Off Date: June March 1, 2003 2001 Date of Trust Agreement: June 26March 29, 2003 2001 First Payment Date: Certificate Percentage Interest of July 25, 2003 this CertificateInterest: 100% Assumed April 25, 2001 Final Payment Date: June CUSIP NO. [_______] December 25, 2028 2031 GMACM HOME EQUITY LOAN-BACKED CERTIFICATE CERTIFICATE, SERIES 20032001-HS2 HE1 evidencing a fractional undivided interest in GMACM Home Equity Loan Trust 2001-HE1 (the Owner Trust Estate"Issuer"), 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-II 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 SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliatesAffiliates. This Class SB-II Certificate is not guaranteed or insured by any governmental agency or instrumentality or by the Depositor, the SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliates. None of the Depositor, the SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee, GMAC Mortgage Group, Inc. Trustee or any of their affiliates 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 Auer & Co. GMAC Mortgage Corporation is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II 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 Asset Mortgage Securities IIProducts, Inc. (the "Depositor"). The Trust (as defined herein) was created pursuant to a Trust Agreement trust agreement dated as specified above of March 29, 2001 (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 Capitalized terms used herein that are not otherwise defined shall have the meanings assigned ascribed thereto in Appendix A to the Agreementindenture dated as of March 29, 2001, between the Trust and the Indenture Trustee. This Class SB-II Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder Certificateholder of this Class SB-II Certificate by virtue of the acceptance hereof assents and by which such Holder Certificateholder 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-II 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-II Certificate (based on the Certificate Percentage Interest stated on the face hereon) of the Certificate Distribution Amountamount, if any, required to be distributed to Holders Certificateholders of Certificates on such Payment Date. Distributions on this Class SB-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II Certificate at the office or agency maintained designated by the Certificate Registrar for that purpose in the City and State of New York. The initial Security Balance This Certificate has no Certificate Balance. Each Certificateholder of this Class SB-II Certificate is will be deemed to have agreed to be bound by the restrictions set forth above. The Security Balance hereof in the Agreement to the effect that (i) each person holding or acquiring any Ownership Interest in this Certificate must be a United States Person and a Permitted Transferee, (ii) the transfer of any Ownership Interest in this Certificate will be reduced conditioned upon the delivery to the extent Indenture Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any Ownership Interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any Ownership Interest in this Certificate in violation of such restrictions, then the Depositor will have the right, in its sole discretion and without notice to the Certificateholder of this Certificate, to sell this Certificate to a purchaser selected by the Depositor, which purchaser may be the Depositor, or any affiliate of the distributions allocable to principalDepositor, on such terms and conditions as the Depositor may choose. No transfer of this Class SBR-II III 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, Indenture Trustee has received either (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 Depositor and the Depositor. The Holder hereof desiring Servicer with respect to effect the permissibility of such transfer shallunder the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and does hereby agree toSection 4975 of the Internal Revenue Code (the "Code") and stating, indemnify among other things, that the Trust, transferee's acquisition of a Class R Certificate will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of 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 Code 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 (iii) 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 provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other person (including an investment manager, a named fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of or purchasing any such Plan or any Person using the Certificate with "plan assets," within the meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counselPlan. This Class SB-II Certificate is one of a duly authorized issue of Certificates designated as GMACM Home Equity Loan-Backed Certificates of the Series specified hereon (herein collectively called the "Certificates"). All terms used in The Certificateholder of this Class SB-II Certificate which are defined in the Agreement shall have the meanings assigned to them in the Agreement. The CertificateholderCertificate, by its acceptance of this Class SB-II Certificatehereof, 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-II Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement. The Holder Certificateholder of this Class SB-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders and the Enhancer as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 TrustDepositor, 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 other 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 and the Enhancer 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 any such 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 HolderCertificateholder, but the Owner Trustee shall be furnished with a letter from each Rating Agency to the Rating Agencies effect that the such amendment will not result in the downgrading or withdrawal of the rating then assigned to any Security cause a Rating Event, if determined without regard to the Policy and the consent of the Credit Enhancer shall be obtainedPolicy. If the purpose of the any such amendment is to prevent the imposition of any federal or state taxes at any time that any Security is outstandingOutstanding, it shall not be necessary to obtain the consent of the any HolderCertificateholder, but the Owner Trustee and the 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 and the consent of the Credit Enhancer shall be obtainedCertificateholder. 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 each Rating Agency to the Rating Agencies effect that the such amendment will not result in the downgrading or withdrawal of the rating then assigned to any Securitycause a Rating Event, if determined without regard to the Policy or (b) the consent of Holders Certificateholders 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 Enhancerall Certificateholders affected thereby, or (ii) reduce the aforesaid percentage of Certificates the Holders Certificateholders of which are required to consent to any such amendment without the consent of the Holders Certificateholders 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 Certificateholder hereof or such HolderCertificateholder's attorney duly authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same Class and aggregate Certificate Percentage Interest will be issued to the designated transferee. The initial Certificate Registrar appointed under the Agreement is the Indenture Owner 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 Certificateholder surrendering the same. This Certificate is issued in the Percentage Interest above. No service charge will be made for any such registration of transfer or exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith. The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee, the Certificate Paying Agent, the Certificate Registrar or any such agent shall be affected by any notice to the contrary. This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware. The obligations created by the Agreement in respect of this Certificate and the Trust created thereby shall terminate upon the final distribution of all moneys or other property or proceeds of the Trust Estate in accordance with the terms of the Indenture and the Agreement. Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Owner Trustee, or an authenticating agent by manual signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose.
Appears in 1 contract
Sources: Trust Agreement (Residential Asset Mortgage Products Inc)
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) FORM OF CLASS SBR-II CERTIFICATES THIS CERTIFICATE THIS CLASS SBMAY NOT BE HELD BY OR TRANSFERRED TO A NON-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED HEREINBELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS ISSUED A "RESIDUAL INTEREST" IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERA "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE RESPECTIVELY, IN ACCORDANCE WITH SECTION 3.12 SECTIONS 860G AND 860D OF THE AGREEMENT. INTERNAL REVENUE CODE OF 1986 (THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 AGREEMENTCODE"). NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL MAY BE MADE TO ANY PERSON, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED TRANSFEREE PROVIDES EITHER (IA CERTIFICATION PURSUANT TO SECTION 3.05(b)(v)(B)(I) A REPRESENTATION LETTER FROM OF THE TRANSFEREE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CLASS SBCERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE EXEMPT PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS UNDER SECTION 406 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 DEPOSITORSERVICER, THE OWNER TRUSTEE, THE MASTER SERVICER COMPANY OR THE CERTIFICATE REGISTRAR TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (YF) AN AGENT OF A CERTIFICATION DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS SB-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE SUBJECT DEEMED TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS CONSENTED TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAWPROVISIONS OF THIS PARAGRAPH. THIS CLASS SB-II 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: June March 1, 2003 2004 Date of Trust Agreement: June 26March 29, 2003 2004 First Payment Date: Certificate Percentage Interest of July 25April 26, 2003 2004 this Certificate: 100% Assumed Final Payment Date: June March 25, 2028 2034 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 20032004-HS2 HS1 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. Residential Funding Corporation is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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 Each Certificateholder of this Class SB-II Certificate is will be deemed to have agreed to be bound by the restrictions set forth above. The Security Balance hereof in the Agreement to the effect that (i) each person holding or acquiring any Ownership Interest in this Certificate must be a United States Person and a Permitted Transferee, (ii) the transfer of any Ownership Interest in this Certificate will be reduced conditioned upon the delivery to the extent Indenture Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any Ownership Interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any Ownership Interest in this Certificate in violation of such restrictions, then the Depositor will have the right, in its sole discretion and without notice to the Certificateholder of this Certificate, to sell this Certificate to a purchaser selected by the Depositor, which purchaser may be the Depositor, or any affiliate of the distributions allocable to principalDepositor, on such terms and conditions as the Depositor may choose. No transfer of this Class SBR-II 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 has received (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 (a "Plan"), any person acting, directly or indirectly, on behalf of any such Plan plan or any Person person using the "plan assets," within the meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate such transferee is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel acceptable to and in form and substance satisfactory to the Depositor, the Owner Trustee, the Master Servicer and the Certificate Registrar, to the effect that the purchase or holding of this a Class SB-II R Certificate is permissible under applicable law, will not constitute or result in a non-exempt 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26March 29, 20032004, between Home Equity Loan Trust 20032004-HS2 HS1 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 Certificate is issued in the Certificate Percentage Interest above; however, the Certificate Percentage Interest of this Certificate may change in accordance with Section 3.12 of the Agreement. The Holder of this 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 Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee
Appears in 1 contract
Sources: Trust Agreement (Residential Funding Mortgage Sec Ii Inc Hm Eq Ln Tr 2004-Hs1)
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 ____________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 I-3 FORM OF CLASS SBR-II III CERTIFICATE THIS CLASS SBCERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED HEREINBELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS ISSUED A "RESIDUAL INTEREST" IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERA "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE RESPECTIVELY, IN ACCORDANCE WITH SECTION 3.12 SECTIONS 860G AND 860D OF THE AGREEMENT. INTERNAL REVENUE CODE OF 1986 (THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 AGREEMENTCODE"). NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL MAY BE MADE TO ANY PERSON, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED TRANSFEREE PROVIDES EITHER (I) A REPRESENTATION LETTER FROM CERTIFICATION PURSUANT TO SECTION 3.05 OF THE TRANSFEREE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CLASS SBCERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE EXEMPT PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS UNDER SECTION 406 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 DEPOSITORSERVICER, THE OWNER TRUSTEE, THE MASTER SERVICER COMPANY OR THE CERTIFICATE REGISTRAR TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (YF) AN AGENT OF A CERTIFICATION DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS SB-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE SUBJECT DEEMED TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS CONSENTED TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW. PROVISIONS OF THIS CLASS SB-II 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 DOCUMENTSPARAGRAPH. Certificate No. 1 Class R-III Certificate Percentage Interest: 100% Cut-off Off Date: June 1, 2003 2005 Date of Trust Agreement: June 2629, 2003 2005 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed 2005 Final Payment Date: June November 25, 2028 2035 GMACM HOME EQUITY LOAN-BACKED CERTIFICATE CERTIFICATE, SERIES 20032005-HS2 HE2 evidencing a fractional undivided interest in GMACM Home Equity Loan Trust 2005-HE2 (the Owner Trust Estate"Trust"), the property of which consists primarily of the Home Equity Mortgage 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-II 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 SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliatesAffiliates. This Class SB-II Certificate is not guaranteed or insured by any governmental agency or instrumentality or by the Depositor, the SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliates. None of the Depositor, the SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee, GMAC Mortgage Group, Inc. Trustee or any of their affiliates 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 Auer & Co. GMAC Mortgage Corporation is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II Certificate (as set forth on the face hereof) in certain distributions with respect to the Owner Trust Estate, consisting primarily of the Home Equity Mortgage Loans, created by Residential Funding Asset Mortgage Securities IIProducts, Inc. (the "Depositor"). The Trust (as defined herein) was created pursuant to a Trust Agreement trust agreement dated as specified above of June 29, 2005 (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 Capitalized terms used herein that are not otherwise defined shall have the meanings assigned ascribed thereto in Appendix A to the Agreementindenture dated as of June 29, 2005, between the Trust and the Indenture Trustee. This Class SB-II Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder Certificateholder of this Class SB-II Certificate by virtue of the acceptance hereof assents and by which such Holder Certificateholder is bound. Pursuant to the terms of the Agreement, a distribution will be made on the 25th day of each month March, June, September and December 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-II 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-II Certificate (based on the Certificate Percentage Interest stated on the face hereon) of the Certificate Distribution Amountamount, if any, required to be distributed to Holders Certificateholders of Certificates on such Payment Date. Distributions on this Class SB-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II Certificate at the office or agency maintained Corporate Trust Office of the Certificate Registrar. This Certificate has no Certificate Balance. Each Certificateholder of this Certificate will be deemed to have agreed to be bound by the Certificate Registrar for that purpose restrictions set forth in the City Agreement to the effect that (i) each person holding or acquiring any Ownership Interest in this Certificate must be a United States Person and State a Permitted Transferee, (ii) the transfer of New York. The initial Security Balance any Ownership Interest in this Certificate will be conditioned upon the delivery to the Indenture Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any Ownership Interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any Ownership Interest in this Certificate in violation of such restrictions, then the Depositor will have the right, in its sole discretion and without notice to the Certificateholder of this Class SB-II Certificate, to sell this Certificate is set forth above. The Security Balance hereof will to a purchaser selected by the Depositor, which purchaser may be reduced to the extent Depositor, or any affiliate of the distributions allocable to principalDepositor, on such terms and conditions as the Depositor may choose. No transfer of this Class SBR-II III 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, Indenture Trustee has received either (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 Depositor and the Depositor. The Holder hereof desiring Servicer with respect to effect the permissibility of such transfer shallunder the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and does hereby agree toSection 4975 of the Internal Revenue Code (the "Code") and stating, indemnify among other things, that the Trust, transferee's acquisition of a Class R Certificate will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of 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 Code 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 (iii) 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 provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other person (including an investment manager, a named fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of or purchasing any such Plan or any Person using the Certificate with "plan assets," within the meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counselPlan. This Class SB-II Certificate is one of a duly authorized issue of Certificates designated as GMACM Home Equity Loan-Backed Certificates of the Series specified hereon (herein collectively called the "Certificates"). All terms used in The Certificateholder of this Class SB-II Certificate which are defined in the Agreement shall have the meanings assigned to them in the Agreement. The CertificateholderCertificate, by its acceptance of this Class SB-II Certificatehereof, 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-II Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement. The Holder Certificateholder of this Class SB-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders and the Enhancer as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 TrustDepositor, 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 other 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 and the Enhancer 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 any such 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 HolderCertificateholder, but the Owner Trustee shall be furnished with a letter from each Rating Agency to the Rating Agencies effect that the such 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 obtainedcause a Rating Event. If the purpose of the any such amendment is to prevent the imposition of any federal or state taxes at any time that any Security is outstandingOutstanding, it shall not be necessary to obtain the consent of the any HolderCertificateholder, but the Owner Trustee and the 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 and the consent of the Credit Enhancer shall be obtainedCertificateholder. 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 each Rating Agency to the Rating Agencies effect that the such amendment will not result in the downgrading or withdrawal of the rating then assigned to any Security, if determined without regard to the Policy cause a Rating Event or (b) the consent of Holders Certificateholders 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 Enhancerall Certificateholders affected thereby, or (ii) reduce the aforesaid percentage of Certificates the Holders Certificateholders of which are required to consent to any such amendment without the consent of the Holders Certificateholders 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II Certificate for registration of transfer at the offices or agencies Corporate Trust Office of the Certificate Registrar maintained in the City and State of New YorkRegistrar, accompanied by a written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder Certificateholder hereof or such HolderCertificateholder's attorney duly authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same Class and aggregate Certificate Percentage Interest will be issued to the designated transferee. The initial Certificate Registrar appointed under the Agreement is the Indenture Owner 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 Certificateholder surrendering the same. This Certificate is issued in the Percentage Interest above. No service charge will be made for any such registration of transfer or exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith. The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee, the Certificate Paying Agent, the Certificate Registrar or any such agent shall be affected by any notice to the contrary. This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware. The obligations created by the Agreement in respect of this Certificate and the Trust created thereby shall terminate upon the final distribution of all moneys or other property or proceeds of the Trust Estate in accordance with the terms of the Indenture and the Agreement. Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Owner Trustee, or an authenticating agent by manual signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose. [Signature Page Follows]
Appears in 1 contract
Sources: Trust Agreement (Gmacm Home Equity Loan Trust 2005-He2)
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 ___________ 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) FORM OF CLASS SBR-II CERTIFICATES THIS CERTIFICATE THIS CLASS SBMAY NOT BE HELD BY OR TRANSFERRED TO A NON-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED HEREINBELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS ISSUED A "RESIDUAL INTEREST" IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERA "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE RESPECTIVELY, IN ACCORDANCE WITH SECTION 3.12 SECTIONS 860G AND 860D OF THE AGREEMENT. INTERNAL REVENUE CODE OF 1986 (THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 AGREEMENTCODE"). NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL MAY BE MADE TO ANY PERSON, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED TRANSFEREE PROVIDES EITHER (IA CERTIFICATION PURSUANT TO SECTION 3.05(b)(v)(B)(I) A REPRESENTATION LETTER FROM OF THE TRANSFEREE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CLASS SBCERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE EXEMPT PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS UNDER SECTION 406 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 DEPOSITORSERVICER, THE OWNER TRUSTEE, THE MASTER SERVICER COMPANY OR THE CERTIFICATE REGISTRAR TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (YF) AN AGENT OF A CERTIFICATION DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS SB-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE SUBJECT DEEMED TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS CONSENTED TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW. PROVISIONS OF THIS CLASS SB-II 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 DOCUMENTSPARAGRAPH. Certificate No. 1 Cut-off Date: June September 1, 2003 2005 Date of Trust Agreement: June 26September 23, 2003 2005 First Payment Date: Certificate Percentage Interest of July October 25, 2003 2005 this Certificate: 100% Assumed Final Payment Date: June October 25, 2028 2035 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 20032005-HS2 HS1 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. Residential Funding Corporation is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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 Each Certificateholder of this Class SB-II Certificate is will be deemed to have agreed to be bound by the restrictions set forth above. The Security Balance hereof in the Agreement to the effect that (i) each person holding or acquiring any Ownership Interest in this Certificate must be a United States Person and a Permitted Transferee, (ii) the transfer of any Ownership Interest in this Certificate will be reduced conditioned upon the delivery to the extent Indenture Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any Ownership Interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any Ownership Interest in this Certificate in violation of such restrictions, then the Depositor will have the right, in its sole discretion and without notice to the Certificateholder of this Certificate, to sell this Certificate to a purchaser selected by the Depositor, which purchaser may be the Depositor, or any affiliate of the distributions allocable to principalDepositor, on such terms and conditions as the Depositor may choose. No transfer of this Class SBR-II 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 has received (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 (a "Plan"), any person acting, directly or indirectly, on behalf of any such Plan plan or any Person person using the "plan assets," within the meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate such transferee is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel acceptable to and in form and substance satisfactory to the Depositor, the Owner Trustee, the Master Servicer and the Certificate Registrar, to the effect that the purchase or holding of this a Class SB-II R Certificate is permissible under applicable law, will not constitute or result in a non-exempt 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26September 23, 20032005, between Home Equity Loan Trust 20032005-HS2 HS1 (the "Trust") and JPMorgan Chase Bank, N.A., 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 Certificate is issued in the Certificate Percentage Interest above; however, the Certificate Percentage Interest of this Certificate may change in accordance with Section 3.12 of the Agreement. The Holder of this 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 Certificate is registered as the owner hereof for all purp
Appears in 1 contract
DISTRIBUTION INSTRUCTIONS. The assignee Assignee(s) should include the following for the information purposes of distribution: Address of the Certificate Paying AgentAssignee(s) for the purpose of receiving notices and distributions: Distribution shall be ____________________________________________________________. Distributions, if being made by wire transfer in immediately available funds funds, to _________________________________ for the account of ________________, account number __________ account number _____, or, if mailed by check, to ______________. Applicable statements should be mailed to __________________. ------------------------------ Signature of assignee This information is provided by ___________________________________________________________________________ the Assignee(s) named above, or agent ________________________________________________ as its (for authorization of wire transfer onlytheir) FORM OF CLASS SB-II CERTIFICATE agent. By: [Please print or type name(s)] Title: Taxpayer Identification Number: [THIS CLASS SB-II CERTIFICATE IS SUBORDINATED IN RIGHT A TEMPORARY REGULATION S GLOBAL CERTIFICATE FOR PURPOSES OF PAYMENT REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW. NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERM NOTES TERMS OF THE TRUST AND SERVICING AGREEMENT.]1 [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE VARIABLE FUNDING NOTES AS DESCRIBED DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE AGREEMENT NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS DEFINED HEREINIS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC). THIS CLASS SB-II CERTIFICATE , ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS ISSUED IN WRONGFUL INASMUCH AS THE PERCENTAGE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST SET FORTH BELOW; HOWEVER, THE PERCENTAGE INTEREST HEREIN.]2 [TRANSFERS OF THIS GLOBAL CERTIFICATE MAY CHANGE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH SECTION 3.12 OF THE AGREEMENTRESTRICTIONS SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.]3 1 Temporary Regulation S Global Certificate legend. THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION2 Legend required as long as DTC is the Depository under the Trust and Servicing Agreement. 3 Global Certificate legend. THIS CLASS SB-II CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDEDAMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN INSTITUTION THAT IS NOT A “U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) UPON INITIAL ISSUANCE ONLY TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE SUCH ACCREDITED INVESTORS AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE 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-II CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II 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 UNITED STATES OR ANY PERSON USING "PLAN ASSETS," WITHIN THE MEANING OF THE DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, TO ACQUIRE THIS CLASS SB-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II CERTIFICATE IS PERMISSIBLE UNDER OTHER 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, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSELJURISDICTION. THE TRANSFEREE OF THIS CLASS SB-II 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-II 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: June 1, 2003 Date of Trust Agreement: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 4 Legend required for certificate evidencing a fractional undivided interest in the Owner Trust Estate, the property of which consists primarily any part of the Home Equity Loans, created by RESIDENTIAL FUNDING RR Interest. NATIXIS COMMERCIAL MORTGAGE SECURITIES IITRUST 2018-OSS, INC. (hereinafter called the "Depositor," which term includes any successor entity under the Agreement referred to below). This Class SBCOMMERCIAL MORTGAGE PASS-II Certificate is payable solely from the assets of the Owner Trust EstateTHROUGH CERTIFICATES, and does not represent an obligation of or interest in the DepositorSERIES 2018-OSS, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 CLASS B
Appears in 1 contract
Sources: Trust and Servicing Agreement (UBS Commercial Mortgage Trust 2017-C7)
DISTRIBUTION INSTRUCTIONS. The assignee should include the following for the information of the Certificate Paying Agent: Distribution Registrar. Distributions shall be made by wire transfer in immediately available funds to for the account of account number _______________________ or, if mailed by check, to Applicable reports and statements should be mailed to_________________________________________________ for This information is provided by the account of ________________assignee named above, account number ______________, or, if mailed by check, to ______________. Applicable statements should be mailed to or ________________________________________________________ as its agent. ------------------------------ Signature of assignee or agent (for authorization of wire transfer only) FORM THIS CERTIFICATE EVIDENCES OWNERSHIP OF CLASS SB-II A REMIC REGULAR INTEREST. THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY, THE DEPOSITOR, THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR PRIVATE INSURER. DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL AMOUNT OF THIS CLASS SB-II CERTIFICATE MAY BE MADE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS CERTIFICATE IS SUBORDINATED SUBORDINATE IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS DEFINED IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN). THIS CLASS SB-II 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-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDEDAMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND OF OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF WITHIN THE UNITED STATES (AS DEFINED IN RULES 901 THROUGH 905 OF THE 1933 ACT (“REGULATION S”)) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S), IN THE ABSENCE OF SUCH REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR 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 SUBJECT TO, REGISTRATION UNDER SUCH SECURITIES LAWS. THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (A) UNTIL THE EXPIRATION OF THE APPLICABLE “DISTRIBUTION COMPLIANCE PERIOD” WITHIN THE MEANING OF REGULATION S, ANY OFFER, SALE, PLEDGE OR OTHER TRANSFER OF THIS CERTIFICATE SHALL NOT BE MADE IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON (EACH AS DEFINED IN REGULATION S), (B) IF THIS CERTIFICATE IS HELD WITHIN THE UNITED STATES OR SUCH HOLDER IS A U.S. PERSON OR THIS CERTIFICATES IS HELD FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON (EACH AS DEFINED IN REGULATION S) SUCH CERTIFICATE WAS ACQUIRED ONLY (1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (2) BY SUCH HOLDER AS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A OF THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OF THE SECURITIES ACT AND UNDER APPLICABLE LAWS AND IS TRANSFERRED (C) IT WILL NOT REOFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT TO THE DEPOSITOR, IN EACH CASE IN ACCORDANCE WITH THE PROVISIONS ANY APPLICABLE SECURITIES LAW OF SECTION 3.05 ANY STATE OF THE AMENDED UNITED STATES AND RESTATED ANY OTHER JURISDICTION. IN ADDITION, THE HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS CERTIFICATE, REPRESENTS, ACKNOWLEDGES AND AGREES THAT IT WILL NOT REOFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT IN A TRANSACTION THAT DOES NOT CAUSE THE TRUST OR THE MORTGAGE LOANS TO BE REQUIRED TO REGISTER UNDER THE INVESTMENT COMPANY ACT. EACH TRANSFEREE OF A CERTIFICATE WILL BE DEEMED TO REPRESENT AT TIME OF TRANSFER THAT SUCH TRANSFEREE IS EITHER (A) A QUALIFIED INSTITUTIONAL BUYER OR (B) A NON-U.S. PERSON AS DEFINED IN REGULATION S. ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS PROVIDED IN THE POOLING AND SERVICING AGREEMENT ("SHALL INDEMNIFY AND HOLD HARMLESS THE CERTIFICATE REGISTRAR, THE SECURITIES ADMINISTRATOR, THE DEPOSITOR, THE TRUSTEE AND THE TRUST FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING. TRANSFERS OF THE CERTIFICATES MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT"). NO ANY TRANSFER OF THIS CLASS SBCERTIFICATE IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT AND WILL BE NULL AND VOID AB INITIO AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE INITIAL PURCHASER OR SUBSEQUENT TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE TRUST, THE SECURITIES ADMINISTRATOR OR ANY INTERMEDIARY. IF THIS CERTIFICATE IS AN ERISA-II RESTRICTED CERTIFICATE SHALL BE MADE UNLESS OR IS NOT SUBJECT TO AN ERISA-QUALIFYING UNDERWRITING, THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE HOLDER AND ANY TRANSFEREE OF THIS CLASS SB-II CERTIFICATE WILL BE DEEMED TO THE EFFECT HAVE REPRESENTED BY VIRTUE OF ITS PURCHASE OR HOLDING OF THIS CERTIFICATE (OR INTEREST THEREIN) THAT EITHER (A) SUCH HOLDER OR TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT SUBJECT TO THE PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS SECTION 406 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 OR A PERSON ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF WHO IS USING “PLAN ASSETS” OF ANY SUCH PLAN OR ANY PERSON USING "PLAN ASSETS," WITHIN THE MEANING TO EFFECT SUCH ACQUISITION (EACH OF THE FOREGOING, A “PLAN INVESTOR”), (B (I) THE TRANSFEREE IS AN INSURANCE COMPANY, (II) THE SOURCE OF FUNDS USED TO PURCHASE OR HOLD THIS CERTIFICATE IS AN “INSURANCE COMPANY GENERAL ACCOUNT” (AS DEFINED IN U.S. DEPARTMENT OF LABOR REGULATIONS PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60), AND (III) THE CONDITIONS SET FORTH IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED OR (C) IT HAS PROVIDED THE OPINION OF COUNSEL AS SET FORTH IN SECTION 2510.3-101, TO ACQUIRE 3.03 OF THE POOLING AND SERVICING AGREEMENT. IF THIS CLASS SB-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (IIANY INTEREST THEREIN) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION ACQUIRED OR HELD BY ANY PERSON THAT DOES NOT SATISFY THE CONDITIONS DESCRIBED IN THE NAME PRECEDING PARAGRAPH, THEN THE LAST PERMITTED PRECEDING TRANSFEREE SHALL BE TREATED AS THE BENEFICIAL OWNER RETROACTIVE TO THE DATE OF SUCH TRANSFER OF THIS CERTIFICATE. IF THE REQUIREMENTS ARE NOT SATISFIED WITH RESPECT TO ALL OR A PORTION OF THE CERTIFICATES RECEIVED IN AN EXCHANGE, SUCH CERTIFICATES MUST BE SIMULTANEOUSLY TRANSFERRED TO A PERSON THAT IS NOT A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE . ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS CLASS SB-II CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE (OR RESULT INTEREST THEREIN) WAS EFFECTED IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 VIOLATION OF THE CODE (OR COMPARABLE PROVISIONS RESTRICTIONS IN SECTION 3.03 OF ANY SUBSEQUENT ENACTMENTS) THE POOLING AND WILL NOT SUBJECT SERVICING AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE CERTIFICATE REGISTRAR, 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, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE OF THIS CLASS SB-II 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-II CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE DEPOSITOR, THE MASTER SERVICER, THE INDENTURE TRUSTEESECURITIES ADMINISTRATOR, THE OWNER TRUSTEE CUSTODIAN, THE SERVICERS, THE SERVICING ADMINISTRATOR, ANY SUBSERVICERS, THE INITIAL PURCHASERS AND THE TRUST FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR ANY EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT SUCH ACQUISITION OR THE OTHER BASIC DOCUMENTSHOLDING. Evidencing a beneficial interest in a pool of residential mortgage loans and any other assets established by Initial Aggregate Certificate No. 1 Principal Initial Certificate Amount of the Class B-2 Principal Amount of this Certificates: $6,146,000 Certificate: $0 Certificate Interest Rate: Variable Cut-off Date: June April 1, 2003 Date of Trust Agreement: June 26, 2003 First Payment 2015 Final Scheduled Distribution Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 April 2046
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Five Oaks Investment Corp.)
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) FORM OF CLASS SBR-II III CERTIFICATES THIS CERTIFICATE THIS CLASS SBMAY NOT BE HELD BY OR TRANSFERRED TO A NON-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED HEREINBELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS ISSUED A "RESIDUAL INTEREST" IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERA "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE RESPECTIVELY, IN ACCORDANCE WITH SECTION 3.12 SECTIONS 860G AND 860D OF THE AGREEMENT. INTERNAL REVENUE CODE OF 1986 (THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 AGREEMENTCODE"). NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL MAY BE MADE TO ANY PERSON, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED TRANSFEREE PROVIDES EITHER (IA CERTIFICATION PURSUANT TO SECTION 3.05(b)(v)(B)(I) A REPRESENTATION LETTER FROM OF THE TRANSFEREE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CLASS SBCERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE EXEMPT PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS UNDER SECTION 406 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 DEPOSITORSERVICER, THE OWNER TRUSTEE, THE MASTER SERVICER COMPANY OR THE CERTIFICATE REGISTRAR TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (YF) AN AGENT OF A CERTIFICATION DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS SB-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE SUBJECT DEEMED TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS CONSENTED TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAWPROVISIONS OF THIS PARAGRAPH. THIS CLASS SB-II 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: June 1, 2003 Date of Trust Agreement: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June July 25, 2028 2033 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. Residential Funding Corporation is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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 Each Certificateholder of this Class SB-II Certificate is will be deemed to have agreed to be bound by the restrictions set forth above. The Security Balance hereof in the Agreement to the effect that (i) each person holding or acquiring any Ownership Interest in this Certificate must be a United States Person and a Permitted Transferee, (ii) the transfer of any Ownership Interest in this Certificate will be reduced conditioned upon the delivery to the extent Indenture Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any Ownership Interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any Ownership Interest in this Certificate in violation of such restrictions, then the Depositor will have the right, in its sole discretion and without notice to the Certificateholder of this Certificate, to sell this Certificate to a purchaser selected by the Depositor, which purchaser may be the Depositor, or any affiliate of the distributions allocable to principalDepositor, on such terms and conditions as the Depositor may choose. No transfer of this Class SBR-II III 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 has received (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 (a "Plan"), any person acting, directly or indirectly, on behalf of any such Plan plan or any Person person using the "plan assets," within the meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate such transferee is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel acceptable to and in form and substance satisfactory to the Depositor, the Owner Trustee, the Master Servicer and the Certificate Registrar, to the effect that the purchase or holding of this a Class SB-II R Certificate is permissible under applicable law, will not constitute or result in a non-exempt 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 Certificate is issued in the Certificate Percentage Interest above; however, the Certificate Percentage Interest of this Certificate may change in accordance with Section 3.12 of the Agreement. The Holder of this 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 Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee, t
Appears in 1 contract
Sources: Trust Agreement (Residential Funding Mortgage Securities Ii Inc)
DISTRIBUTION INSTRUCTIONS. The assignee should include the following for the information purposes of the Certificate Paying Agentdistribution: Distribution Distributions shall be made made, by wire transfer or otherwise, 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 This information is provided by ______________________________________, the assignee named above, or agent (for authorization of wire transfer only) ____________________________________, as its agent. EXHIBIT A-9 ----------- FORM OF CLASS SB-II B-2 CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS SUBORDINATED A "REGULAR INTEREST" IN RIGHT A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF PAYMENT THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE TERM NOTES SENIOR CERTIFICATES, THE RESIDUAL CERTIFICATES AND THE VARIABLE FUNDING NOTES AS CLASS B- 1 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED REFERRED TO HEREIN). THIS CLASS SB-II 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-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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-II CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN RETIREMENT ARRANGEMENT (EACH A "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 THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN. Series 1997-LB6, Class B-2 Pass-Through Rate: 7.00% per annum Date of Pooling and Servicing Agreement and Cut-off Date: November 1, 1997 First Distribution Date: December 26, 1997 No. _____ Aggregate Certificate Principal Balance of Class B-2 Certificates as of the Issue Date: $7,544,000 Denomination: $______________ Master Servicers: Long Beach Mortgage Company and Ameriquest Mortgage Company Trustee: Norwest Bank Minnesota, National Association Issue Date: November 25, 1997 CUSIP: 79548K YB 8 DISTRIBUTIONS IN REDUCTION 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING PRINCIPAL BALANCE OF THIS CLASS SB-II 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 DEPOSITORMAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OWNER TRUSTEE, OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE MASTER SERVICER OR AMOUNT SHOWN ABOVE AS THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE DENOMINATION OF THIS CLASS SBCERTIFICATE. ASSET-II BACKED CERTIFICATE SHALL BE SUBJECT TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NONevidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund") consisting primarily of a pool of conventional, one- to four-FOREIGN STATUS CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAWfamily, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed and sold by SALOMON BROTHERS MORTGAGE SECURITIES VII, INC. THIS CLASS SB-II CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN OR OBLIGATION OF THE SELLERSALOMON BROTHERS MORTGAGE SECURITIES VII, THE DEPOSITORINC., THE MASTER SERVICERSERVICERS, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN . NEITHER THIS CERTIFICATE NOR THE AGREEMENT UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE OTHER BASIC DOCUMENTSUNITED STATES. Certificate No. 1 Cut-off Date: June 1, 2003 Date This certifies that ____________________ is the registered owner of Trust Agreement: June 26, 2003 First Payment Date: Certificate a Percentage Interest (obtained by dividing the denomination of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 evidencing a fractional undivided interest in Certificate by the Owner Trust Estate, the property of which consists primarily aggregate Certificate Principal Balance of the Home Equity LoansClass B-2 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class B-2 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, created by RESIDENTIAL FUNDING MORTGAGE SECURITIES IIdated as specified above (the "Agreement"), INC. among Salomon Brothers Mortgage Securities VII, Inc. (hereinafter called the "Depositor," which term includes any successor entity under the Agreement referred to belowAgreement). This Class SB-II 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, Servicers and the Indenture Trustee, the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. Pursuant to the terms of the Agreement, a distribution distributions 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 a "Payment Distribution Date"), commencing on the first Payment First Distribution Date specified above, to the Person in whose name this Class SB-II 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 product of the Percentage Interest evidenced by this Class SB-II Certificate (based on and the Certificate Percentage Interest stated on the face hereon) of the Certificate Distribution Amount, if any, amount required to be distributed to the Holders of Class B-2 Certificates on such Payment DateDistribution Date pursuant to the Agreement. Distributions on All distributions to the Holder of this Class SB-II Certificate under the Agreement will be made as provided in or caused to be made by or on behalf of the Agreement by the Certificate Paying Agent Trustee by wire transfer or check mailed in immediately available funds to the Certificateholder account of record the Person entitled thereto if such Person shall have so notified the Trustee in the Certificate Register without the presentation or surrender of this Class SB-II Certificate or the making of any notation hereon. Pursuant writing at least five Business Days prior to the Agreement, Record Date immediately prior to such Distribution Date and is the Trust has issued five Classes registered owner of Certificates, designated as the Class SB-I B-2 Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided aggregate initial Certificate Principal Balance of which is in the Agreement and notwithstanding the above, the final distribution on this Class SB-II Certificate will be made after due notice by the Certificate Paying Agent excess of the pendency lesser of such distribution and only upon presentation and surrender of this Class SB-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") $5,000,000 or (ii) if this Class SBtwo-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II Certificate is permissible under applicable law, will not constitute or result in a prohibited transaction under Section 406 of ERISA or Section 4975 thirds of the Code (or comparable provisions of any subsequent enactments) and will not subject the Depositor, the Owner Trustee, the Master Servicer or the aggregate initial Certificate Registrar to any obligation or liability in addition to those undertaken in the Agreement, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II Certificate is one of a duly authorized issue of Certificates designated as Home Equity Loan-Backed Certificates Principal Balance of the Series specified hereon (herein collectively called the "Certificates"). All terms used in this Class SB-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 Class
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset-Backed Certificates Series 1997-Lb6)
DISTRIBUTION INSTRUCTIONS. The assignee should include the following for the information of the Certificate Paying Agent: Distribution Registrar. Distributions shall be made by wire transfer in immediately available funds to ------------------------------------------------------------------------------ for the account of ___________________________________________________________ for the account of ________________, account number ______________, _ or, if mailed by check, to ______________. _______ ------------------------------------------------------------------------------ Applicable reports and statements should be mailed to ________________________ ----------------------------------------------------------------------------- This information is provided by _____________________________________________ the assignee named above, or ____________________________________ as its agent. ------------------------------ Signature of assignee or agent (for authorization of wire transfer only) EXHIBIT B-2 FORM OF CLASS SB-II RESIDUAL CERTIFICATE THIS CLASS SB-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN)A REMIC RESIDUAL INTEREST CERTIFICATE. THIS CLASS SB-II CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY, THE DEPOSITOR, THE TRUSTEE, OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR PRIVATE INSURER. THIS CERTIFICATE IS ISSUED IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVER, THE PERCENTAGE INTEREST NOT ENTITLED TO DISTRIBUTIONS OF THIS CERTIFICATE MAY CHANGE IN ACCORDANCE WITH SECTION 3.12 OF THE AGREEMENTPRINCIPAL AND WILL NOT ACCRUE INTEREST. THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS WILL BE ENTITLED ONLY TO ANY CHANGE CERTAIN LIMITED DISTRIBUTIONS AS PROVIDED IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTIONTHE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. THIS CLASS SB-II CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT. THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDEDAMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE AND SECURITIES LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT BE RESOLD SUBJECT TO, REGISTRATION. THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR TRANSFERRED UNLESS IT IS REGISTERED OTHERWISE TRANSFER SUCH CERTIFICATE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE 1933 ACT, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE 1933 ACT THAT IS ACQUIRING THE CERTIFICATE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE 1933 ACT OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT, SUBJECT TO THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN THE POOLING AND LAWS SERVICING AGREEMENT. NEITHER THIS CERTIFICATE, NOR ANY BENEFICIAL INTEREST IN THIS CERTIFICATE, MAY BE TRANSFERRED, SOLD, PLEDGED, OR OTHERWISE DISPOSED OF UNLESS PRIOR TO SUCH DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE AN AFFIDAVIT STATING (A) THAT THE PROPOSED TRANSFEREE IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE LAWS NOT A "DISQUALIFIED ORGANIZATION" WITHIN THE MEANING OF SECTION 860E(E)(5) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") 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-II CERTIFICATE SHALL BE MADE UNLESS NOT PURCHASING THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER ON BEHALF OF A DISQUALIFIED ORGANIZATION, (IB) A REPRESENTATION LETTER FROM THAT THE PROPOSED TRANSFEREE OF THIS CLASS SB-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE (1) 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 (2) IS NOT INVESTING THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF ASSETS OF ANY SUCH PLAN, (3) IS NOT A PLAN SUBJECT TO CODE SECTION 4975 OR (4) A PERSON OR ENTITY THAT IS USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR ANY PERSON USING "OTHER PLAN ASSETS," WITHIN THE MEANING OF THE DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, TO ACQUIRE THIS CLASS SB-II CERTIFICATE CERTIFICATE, (EACHC) THAT NO PURPOSE OF SUCH TRANSFER IS TO AVOID OR IMPEDE THE ASSESSMENT OR COLLECTION OF TAX, A "PLAN INVESTOR"), OR AND (IID) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME CASE OF A PLAN INVESTORNON-U.S. PERSON, EITHER (X) IS A NON-U.S. PERSON THAT HOLDS A RESIDUAL CERTIFICATE IN CONNECTION WITH THE CONDUCT OF A TRADE OR BUSINESS WITHIN THE UNITED STATES AND HAS FURNISHED THE TRANSFEROR AND THE TRUSTEE WITH AN OPINION OF COUNSEL TO EFFECTIVE INTERNAL REVENUE SERVICE FORM 4224 OR SUCCESSOR FORM AT THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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) TIME 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 AGREEMENTMANNER REQUIRED BY THE CODE. IN ADDITION, OR (Y) THIS CERTIFICATE MAY NOT BE HELD BY A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSELNOMINEE. THE TRANSFEREE OF THIS FINANCE AMERICA SECURITIES, LLC MORTGAGE LOAN TRUST [ ] PASS-THROUGH CERTIFICATE, CLASS SB-II 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-II CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLERR Evidencing a beneficial interest in a pool consisting primarily of certain fixed and adjustable rate, THE DEPOSITORfully amortizing and balloon, THE MASTER SERVICERconventional, THE INDENTURE TRUSTEEfirst lien residential mortgage loans and other assets in a trust fund established by FINANCE AMERICA SECURITIES, THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT OR THE OTHER BASIC DOCUMENTS. Certificate No. 1 LLC Percentage Interest: 100% Cut-off Date: June 1, 2003 Date of Trust Agreement: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 [ ] Number [ ]
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Finance America Securities LLC)
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 I-2 FORM OF CLASS SBR-II CERTIFICATE THIS CLASS SBCERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED HEREINBELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS ISSUED A "RESIDUAL INTEREST" IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERA "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE RESPECTIVELY, IN ACCORDANCE WITH SECTION 3.12 SECTIONS 860G AND 860D OF THE AGREEMENT. INTERNAL REVENUE CODE OF 1986 (THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 AGREEMENTCODE"). NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL MAY BE MADE TO ANY PERSON, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED TRANSFEREE PROVIDES EITHER (I) A REPRESENTATION LETTER FROM CERTIFICATION PURSUANT TO SECTION 3.05 OF THE TRANSFEREE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CLASS SBCERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE EXEMPT PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS UNDER SECTION 406 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 DEPOSITORSERVICER, THE OWNER TRUSTEE, THE MASTER SERVICER COMPANY OR THE CERTIFICATE REGISTRAR TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (YF) AN AGENT OF A CERTIFICATION DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS SB-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE SUBJECT DEEMED TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS CONSENTED TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW. PROVISIONS OF THIS CLASS SB-II 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 DOCUMENTSPARAGRAPH. Certificate No. 1 Class R-II Certificate Percentage Interest: 100% Cut-off Off Date: June March 1, 2003 Date of Trust Agreement: June 26March 30, 2003 2004 First Payment Date: Certificate Percentage Interest of July 25April 26, 2003 this Certificate: 100% Assumed 2004 Final Payment Date: June 25, 2028 [ ] GMACM HOME EQUITY LOAN-BACKED CERTIFICATE CERTIFICATE, SERIES 20032004-HS2 HE2 evidencing a fractional undivided interest in GMACM Mortgage Loan Trust 2004-HE2 (the Owner Trust Estate"Issuer"), the property of which consists primarily of the Home Equity Mortgage 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-II 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 SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliatesAffiliates. This Class SB-II Certificate is not guaranteed or insured by any governmental agency or instrumentality or by the Depositor, the SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliates. None of the Depositor, the SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee, GMAC Mortgage Group, Inc. Trustee or any of their affiliates 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 Auer & Co. GMAC Mortgage Corporation is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II Certificate (as set forth on the face hereof) in certain distributions with respect to the Owner Trust Estate, consisting primarily of the Home Equity Mortgage Loans, created by Residential Funding Asset Mortgage Securities IIProducts, Inc. (the "Depositor"). The Trust (as defined herein) was created pursuant to a Trust Agreement trust agreement dated as specified above of March 30, 2004 (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 Capitalized terms used herein that are not otherwise defined shall have the meanings assigned ascribed thereto in Appendix A to the Agreementindenture dated as of March 30, 2004, between the Trust and the Indenture Trustee. This Class SB-II Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder Certificateholder of this Class SB-II Certificate by virtue of the acceptance hereof assents and by which such Holder Certificateholder is bound. Pursuant to the terms of the Agreement, a distribution will be made on the 25th day of each month March, June, September and December 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-II 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-II Certificate (based on the Certificate Percentage Interest stated on the face hereon) of the Certificate Distribution Amountamount, if any, required to be distributed to Holders Certificateholders of Certificates on such Payment Date. Distributions on this Class SB-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II Certificate at the office or agency maintained Corporate Trust Office of the Certificate Registrar. This Certificate has no Certificate Balance. Each Certificateholder of this Certificate will be deemed to have agreed to be bound by the Certificate Registrar for that purpose restrictions set forth in the City Agreement to the effect that (i) each person holding or acquiring any Ownership Interest in this Certificate must be a United States Person and State a Permitted Transferee, (ii) the transfer of New York. The initial Security Balance any Ownership Interest in this Certificate will be conditioned upon the delivery to the Indenture Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any Ownership Interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any Ownership Interest in this Certificate in violation of such restrictions, then the Depositor will have the right, in its sole discretion and without notice to the Certificateholder of this Class SB-II Certificate, to sell this Certificate is set forth above. The Security Balance hereof will to a purchaser selected by the Depositor, which purchaser may be reduced to the extent Depositor, or any affiliate of the distributions allocable to principalDepositor, on such terms and conditions as the Depositor may choose. No transfer of this Class SBR-II 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, Indenture Trustee has received either (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 Depositor and the Depositor. The Holder hereof desiring Servicer with respect to effect the permissibility of such transfer shallunder the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and does hereby agree toSection 4975 of the Internal Revenue Code (the "Code") and stating, indemnify among other things, that the Trust, transferee's acquisition of a Class R Certificate will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of 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 Code 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 (iii) 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 provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other person (including an investment manager, a named fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of or purchasing any such Plan or any Person using the Certificate with "plan assets," within the meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counselPlan. This Class SB-II Certificate is one of a duly authorized issue of Certificates designated as GMACM Home Equity Loan-Backed Certificates of the Series specified hereon (herein collectively called the "Certificates"). All terms used in The Certificateholder of this Class SB-II Certificate which are defined in the Agreement shall have the meanings assigned to them in the Agreement. The CertificateholderCertificate, by its acceptance of this Class SB-II Certificatehereof, 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-II Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement. The Holder Certificateholder of this Class SB-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders and the Credit Enhancer as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 TrustDepositor, 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 other 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 and the Credit Enhancer 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 any such 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 HolderCertificateholder, but the Owner Trustee shall be furnished with a letter from each Rating Agency to the Rating Agencies effect that the such amendment will not result in the downgrading or withdrawal of the rating then assigned to any Security if cause a Rating Event, determined without regard to the Policy and in the consent case of the Credit Enhancer shall be obtainedClass A-5 Notes. If the purpose of the any such amendment is to prevent the imposition of any federal or state taxes at any time that any Security is outstandingOutstanding, it shall not be necessary to obtain the consent of the any HolderCertificateholder, 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 and the consent of the Credit Enhancer shall be obtainedCertificateholder. 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 each Rating Agency to the Rating Agencies effect that the such amendment will not result in the downgrading or withdrawal of the rating then assigned to any Securitycause a Rating Event, if determined without regard to the Policy in the case of the Class A-5 Notes or (b) the consent of Holders Certificateholders 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 Enhancerall Certificateholders affected thereby, or (ii) reduce the aforesaid percentage of Certificates the Holders Certificateholders of which are required to consent to any such amendment without the consent of the Holders Certificateholders 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II Certificate for registration of transfer at the offices or agencies Corporate Trust Office of the Certificate Registrar maintained in the City and State of New YorkRegistrar, accompanied by a written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder Certificateholder hereof or such HolderCertificateholder's attorney duly authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same Class and aggregate Certificate Percentage Interest will be issued to the designated transferee. The initial Certificate Registrar appointed under the Agreement is the Indenture Owner 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 Certificateholder surrendering the same. This Certificate is issued in the Percentage Interest above. No service charge will be made for any such registration of transfer or exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith. The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee, the Certificate Paying Agent, the Certificate Registrar or any such agent shall be affected by any notice to the contrary. This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware. The obligations created by the Agreement in respect of this Certificate and the Trust created thereby shall terminate upon the final distribution of all moneys or other property or proceeds of the Trust Estate in accordance with the terms of the Indenture and the Agreement. Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Owner Trustee, or an authenticating agent by manual signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose. [Signature Page Follows]
Appears in 1 contract
Sources: Trust Agreement (Residential Asset Mort Prod Inc Gmacm Home Eq L N Tr 04 He2)
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 I-2 FORM OF CLASS SBR-II CERTIFICATE THIS CLASS SBCERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED HEREINBELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS ISSUED A "RESIDUAL INTEREST" IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERA "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE RESPECTIVELY, IN ACCORDANCE WITH SECTION 3.12 SECTIONS 860G AND 860D OF THE AGREEMENT. INTERNAL REVENUE CODE OF 1986 (THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 AGREEMENTCODE"). NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL MAY BE MADE TO ANY PERSON, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED TRANSFEREE PROVIDES EITHER (I) A REPRESENTATION LETTER FROM CERTIFICATION PURSUANT TO SECTION 3.05 OF THE TRANSFEREE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CLASS SBCERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE EXEMPT PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS UNDER SECTION 406 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 DEPOSITORSERVICER, THE OWNER TRUSTEE, THE MASTER SERVICER COMPANY OR THE CERTIFICATE REGISTRAR TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (YF) AN AGENT OF A CERTIFICATION DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS SB-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE SUBJECT DEEMED TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS CONSENTED TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW. PROVISIONS OF THIS CLASS SB-II 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 DOCUMENTSPARAGRAPH. Certificate No. 1 Class R-II Certificate Percentage Interest: 100% Cut-off Off Date: June November 1, 2003 2004 Date of Trust Agreement: June 26November 22, 2003 2004 First Payment Date: Certificate Percentage Interest of July 25December 27, 2003 this Certificate: 100% Assumed 2004 Final Payment Date: June July 25, 2028 HOME EQUITY 2035 GMACM MORTGAGE LOAN-BACKED CERTIFICATE CERTIFICATE, SERIES 20032004-HS2 GH1 evidencing a fractional undivided interest in GMACM Mortgage Loan Trust 2004-GH1 (the Owner Trust Estate"Issuer"), the property of which consists primarily of the Home Equity Mortgage 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-II 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 SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliatesAffiliates. This Class SB-II Certificate is not guaranteed or insured by any governmental agency or instrumentality or by the Depositor, the SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliates. None of the Depositor, the SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee, GMAC Mortgage Group, Inc. Trustee or any of their affiliates 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 Auer & Co. GMAC Mortgage Corporation is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II Certificate (as set forth on the face hereof) in certain distributions with respect to the Owner Trust Estate, consisting primarily of the Home Equity Mortgage Loans, created by Residential Funding Asset Mortgage Securities IIProducts, Inc. (the "Depositor"). The Trust (as defined herein) was created pursuant to a Trust Agreement trust agreement dated as specified above of November 22, 2004 (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 Capitalized terms used herein that are not otherwise defined shall have the meanings assigned ascribed thereto in Appendix A to the Agreementindenture dated as of November 22, 2004, between the Trust and the Indenture Trustee. This Class SB-II Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder Certificateholder of this Class SB-II Certificate by virtue of the acceptance hereof assents and by which such Holder Certificateholder is bound. Pursuant to the terms of the Agreement, a distribution will be made on the 25th day of each month March, June, September and December 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-II 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-II Certificate (based on the Certificate Percentage Interest stated on the face hereon) of the Certificate Distribution Amountamount, if any, required to be distributed to Holders Certificateholders of Certificates on such Payment Date. Distributions on this Class SB-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II Certificate at the office or agency maintained designated by the Certificate Registrar for that purpose in the City and State of New York. The initial Security Balance This Certificate has no Certificate Balance. Each Certificateholder of this Class SB-II Certificate is will be deemed to have agreed to be bound by the restrictions set forth above. The Security Balance hereof in the Agreement to the effect that (i) each person holding or acquiring any Ownership Interest in this Certificate must be a United States Person and a Permitted Transferee, (ii) the transfer of any Ownership Interest in this Certificate will be reduced conditioned upon the delivery to the extent Indenture Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any Ownership Interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any Ownership Interest in this Certificate in violation of such restrictions, then the Depositor will have the right, in its sole discretion and without notice to the Certificateholder of this Certificate, to sell this Certificate to a purchaser selected by the Depositor, which purchaser may be the Depositor, or any affiliate of the distributions allocable to principalDepositor, on such terms and conditions as the Depositor may choose. No transfer of this Class SBR-II 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, Indenture Trustee has received either (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 Depositor and the Depositor. The Holder hereof desiring Servicer with respect to effect the permissibility of such transfer shallunder the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and does hereby agree toSection 4975 of the Internal Revenue Code (the "Code") and stating, indemnify among other things, that the Trust, transferee's acquisition of a Class R Certificate will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of 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 Code 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 (iii) 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 provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other person (including an investment manager, a named fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of or purchasing any such Plan or any Person using the Certificate with "plan assets," within the meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counselPlan. This Class SB-II Certificate is one of a duly authorized issue of Certificates designated as Home Equity GMACM Mortgage Loan-Backed Certificates of the Series specified hereon (herein collectively called the "Certificates"). All terms used in The Certificateholder of this Class SB-II Certificate which are defined in the Agreement shall have the meanings assigned to them in the Agreement. The CertificateholderCertificate, by its acceptance of this Class SB-II Certificatehereof, 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-II Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement. The Holder Certificateholder of this Class SB-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 TrustDepositor, 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 other 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 any such 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 HolderCertificateholder, but the Owner Trustee shall be furnished with a letter from each Rating Agency to the Rating Agencies effect that the such 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 obtainedcause a Rating Event. If the purpose of the any such amendment is to prevent the imposition of any federal or state taxes at any time that any Security is outstandingOutstanding, it shall not be necessary to obtain the consent of the any HolderCertificateholder, but the Owner Trustee shall be furnished with an Opinion of Counsel that such amendment is necessary or helpful to prevent the imposition of such taxes and is not materially adverse to any Holder and the consent of the Credit Enhancer shall be obtainedCertificateholder. 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 each Rating Agency to the Rating Agencies effect that the such amendment will not result in the downgrading or withdrawal of the rating then assigned to any Security, if determined without regard to the Policy cause a Rating Event or (b) the consent of Holders Certificateholders 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 Enhancerall Certificateholders affected thereby, or (ii) reduce the aforesaid percentage of Certificates the Holders Certificateholders of which are required to consent to any such amendment without the consent of the Holders Certificateholders 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 Certificateholder hereof or such HolderCertificateholder's attorney duly authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same Class and aggregate Certificate Percentage Interest will be issued to the designated transferee. The initial Certificate Registrar appointed under the Agreement is the Indenture Owner 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 Certificateholder surrendering the same. This Certificate is issued in the Percentage Interest above. No service charge will be made for any such registration of transfer or exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith. The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee, the Certificate Paying Agent, the Certificate Registrar or any such agent shall be affected by any notice to the contrary. This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware. The obligations created by the Agreement in respect of this Certificate and the Trust created thereby shall terminate upon the final distribution of all moneys or other property or proceeds of the Trust Estate in accordance with the terms of the Indenture and the Agreement. Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Owner Trustee, or an authenticating agent by manual signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose.
Appears in 1 contract
Sources: Trust Agreement (GMACM Mortgage Loan Trust 2004-Gh1)
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) FORM OF CLASS SBR-II CERTIFICATES THIS CERTIFICATE THIS CLASS SBMAY NOT BE HELD BY OR TRANSFERRED TO A NON-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED HEREINBELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS ISSUED A "RESIDUAL INTEREST" IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERA "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE RESPECTIVELY, IN ACCORDANCE WITH SECTION 3.12 SECTIONS 860G AND 860D OF THE AGREEMENT. INTERNAL REVENUE CODE OF 1986 (THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 AGREEMENTCODE"). NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL MAY BE MADE TO ANY PERSON, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED TRANSFEREE PROVIDES EITHER (IA CERTIFICATION PURSUANT TO SECTION 3.05(b)(v)(B)(I) A REPRESENTATION LETTER FROM OF THE TRANSFEREE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CLASS SBCERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE EXEMPT PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS UNDER SECTION 406 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 DEPOSITORSERVICER, THE OWNER TRUSTEE, THE MASTER SERVICER COMPANY OR THE CERTIFICATE REGISTRAR TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (YF) AN AGENT OF A CERTIFICATION DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS SB-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE SUBJECT DEEMED TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS CONSENTED TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW. PROVISIONS OF THIS CLASS SB-II 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 DOCUMENTSPARAGRAPH. Certificate No. 1 Cut-off Date: June November 1, 2003 2005 Date of Trust Agreement: June 26November 29, 2003 2005 First Payment Date: Certificate Percentage Interest of July 25December 27, 2003 2005 this Certificate: 100% Assumed Final Payment Date: June 25December 26, 2028 2035 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 20032005-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. Residential Funding Corporation is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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 Each Certificateholder of this Class SB-II Certificate is will be deemed to have agreed to be bound by the restrictions set forth above. The Security Balance hereof in the Agreement to the effect that (i) each person holding or acquiring any Ownership Interest in this Certificate must be a United States Person and a Permitted Transferee, (ii) the transfer of any Ownership Interest in this Certificate will be reduced conditioned upon the delivery to the extent Indenture Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any Ownership Interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any Ownership Interest in this Certificate in violation of such restrictions, then the Depositor will have the right, in its sole discretion and without notice to the Certificateholder of this Certificate, to sell this Certificate to a purchaser selected by the Depositor, which purchaser may be the Depositor, or any affiliate of the distributions allocable to principalDepositor, on such terms and conditions as the Depositor may choose. No transfer of this Class SBR-II 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 has received (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 (a "Plan"), any person acting, directly or indirectly, on behalf of any such Plan plan or any Person person using the "plan assets," within the meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate such transferee is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel acceptable to and in form and substance satisfactory to the Depositor, the Owner Trustee, the Master Servicer and the Certificate Registrar, to the effect that the purchase or holding of this a Class SB-II R Certificate is permissible under applicable law, will not constitute or result in a non-exempt 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26November 29, 20032005, between Home Equity Loan Trust 20032005-HS2 (the "Trust") and JPMorgan Chase Bank, N.A., 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 Certificate is issued in the Certificate Percentage Interest above; however, the Certificate Percentage Interest of this Certificate may change in accordance with Section 3.12 of the Agreement. The Holder of this 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 Certificate is registered as the owner hereof for all purposes, and
Appears in 1 contract
DISTRIBUTION INSTRUCTIONS. The assignee should include the following for the information of the Certificate Paying Agent: Distribution Registrar. Distributions shall be made by wire transfer in immediately available funds to ------------------------------------------------------------------------------ for the account of ___________________________________________________________ for the account of number ________________, account number ______________, _ or, if mailed by check, to _________________ -----------------------------------------------------------------------------. Applicable reports and statements should be mailed to ________________________ -----------------------------------------------------------------------------. ------------------------------ Signature of This information is provided by _____________________________________ the assignee or agent (for authorization of wire transfer only) name EXHIBIT A-5 FORM OF CLASS SB-II B CERTIFICATE THIS CLASS SB-II CERTIFICATE IS SUBORDINATED A FASIT REGULAR INTEREST CERTIFICATE. THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY, THE DEPOSITOR, THE TRUSTEE, OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR PRIVATE INSURER. DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE MAY BE MADE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE TRUST AGREEMENT (AS DEFINED REFERRED TO HEREIN). THIS CLASS SB-II 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-I CERTIFICATE HEREBY CONSENTS BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE 1933 ACT THAT IS ACQUIRING THE CERTIFICATE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE 1933 ACT, SUBJECT TO THE TRUSTEE'S RIGHT PRIOR TO ANY CHANGE SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF A CERTIFICATE OF TRANSFER IN ITS CERTIFICATE PERCENTAGE INTEREST THE FORM APPEARING IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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-II CERTIFICATE SHALL BE MADE REGISTERED UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER PROSPECTIVE TRANSFEREE PROVIDES THE TRUSTEE AND THE DEPOSITOR WITH (IA) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II CERTIFICATE CERTIFICATION TO THE EFFECT THAT SUCH TRANSFEREE (1) IS NOT NEITHER AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS SECTION 406 OR SECTION 407 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"), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY SUCH PLAN OR ANY NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (2) IF SUCH TRANSFEREE IS AN INSURANCE COMPANY, SUCH TRANSFEREE IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN AN "PLAN ASSETS,INSURANCE COMPANY GENERAL ACCOUNT" WITHIN THE MEANING (AS SUCH TERM IS DEFINED IN SECTION V(e) OF THE DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3PROHIBITED TRANSACTION CLASS EXEMPTION 95-101, TO ACQUIRE THIS CLASS SB60 ("PTCE 95-II CERTIFICATE (EACH, A "PLAN INVESTOR60"), ) AND THAT THE PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER PTCE 95-60; OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (XB) AN OPINION OF COUNSEL (A "BENEFIT PLAN OPINION") SATISFACTORY TO THE TRUSTEE AND THE DEPOSITOR, AND UPON WHICH THE TRUSTEE AND THE DEPOSITOR SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II SUCH CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, BY THE PROSPECTIVE TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE PLAN ASSETS AND SUBJECT TO THE PROHIBITED TRANSACTION UNDER SECTION 406 PROVISIONS 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 TRUSTEE OR THE CERTIFICATE REGISTRAR DEPOSITOR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE TRUST AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE OR THE DEPOSITOR. [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (Y) A CERTIFICATION "DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE FORM NAME OF EXHIBIT G CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, INASMUCH AS THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE OF THIS CLASS SB-II 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-II CERTIFICATE DOES NOT REPRESENT REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST IN OR OBLIGATION OF THE SELLERHEREIN.] AMERICAN RESIDENTIAL EAGLE CERTIFICATE TRUST 1998-1 MORTGAGE-BACKED CALLABLE CERTIFICATES, THE DEPOSITORSERIES 1998-1 CLASS B Evidencing a beneficial interest in a single Collateralized Callable Mortgage Bond issued by American Residential Eagle Bond Trust 1998-1 and other assets in a trust fund established by AMERICAN RESIDENTIAL EAGLE, 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 DOCUMENTSINC. Initial Aggregate Certificate No. 1 Initial Certificate Principal Amount of the Class B Principal Amount of this Certificates: $17,365,000.00 Certificate: $17,365,000.00 Certificate Cut-off Date: June May 1, 2003 Date of Trust Agreement1998 Interest Rate: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 Variable
Appears in 1 contract
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) FORM OF CLASS SB-II CERTIFICATE THIS CLASS SB-II 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-II 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-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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-II CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE OF THIS CLASS SB-II 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-II 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: June 1, 2003 2004 Date of Trust Agreement: June 2629, 2003 2004 First Payment Date: Certificate Percentage Interest of July 2526, 2003 2004 this Certificate: 100% Assumed Final Payment Date: June 25, 2028 2034 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 20032004-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III II Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 2629, 20032004, between Home Equity Loan Trust 20032004-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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-II Certificate is issued in the Certificate Percentage Interest above; however, the Certificate Percentage Interest of this Class SB-II Certificate may change in accordance with S
Appears in 1 contract
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) FORM OF CLASS SBR-II CERTIFICATE THIS CLASS SBCERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED HEREINBELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS ISSUED A "RESIDUAL INTEREST" IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERA "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE RESPECTIVELY, IN ACCORDANCE WITH SECTION 3.12 SECTIONS 860G AND 860D OF THE AGREEMENT. INTERNAL REVENUE CODE OF 1986 (THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 AGREEMENTCODE"). NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL MAY BE MADE TO ANY PERSON, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED TRANSFEREE PROVIDES EITHER (I) A REPRESENTATION LETTER FROM CERTIFICATION PURSUANT TO SECTION 3.05 OF THE TRANSFEREE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CLASS SBCERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE EXEMPT PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS UNDER SECTION 406 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 DEPOSITORSERVICER, THE OWNER TRUSTEE, THE MASTER SERVICER COMPANY OR THE CERTIFICATE REGISTRAR TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (YF) AN AGENT OF A CERTIFICATION DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS SB-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE SUBJECT DEEMED TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS CONSENTED TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW. PROVISIONS OF THIS CLASS SB-II 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 DOCUMENTSPARAGRAPH. Certificate No. 1 Class R-II Certificate Cut-off Off Date: June March 1, 2003 2002 Date of Trust Agreement: June March 26, 2003 2002 First Payment Date: Certificate Percentage Interest of July 25, 2003 this CertificateInterest: 100% Assumed April 25, 2002 Final Payment Date: June April 25, 2028 HOME EQUITY LOAN2027 G▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇-BACKED CERTIFICATE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇E, SERIES 20032002-HS2 HE2 evidencing a fractional undivided interest in GMACM Home Equity Loan Trust 2002-HE2 (the Owner Trust Estate"Issuer"), the property of which consists primarily of the Home Equity Mortgage 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-II 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 SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliatesAffiliates. This Class SB-II Certificate is not guaranteed or insured by any governmental agency or instrumentality or by the Depositor, the SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliates. None of the Depositor, the SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee, GMAC Mortgage Group, Inc. Trustee or any of their affiliates 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 Auer & Co. GMAC Mortgage Corporation is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II Certificate (as set forth on the face hereof) in certain distributions with respect to the Owner Trust Estate, consisting primarily of the Home Equity Mortgage Loans, created by Residential Funding Asset Mortgage Securities IIProducts, Inc. (the "Depositor"). The Trust (as defined herein) was created pursuant to a Trust Agreement trust agreement dated as specified above of March 26, 2002 (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 Capitalized terms used herein that are not otherwise defined shall have the meanings assigned ascribed thereto in Appendix A to the Agreementindenture dated as of March 26, 2002, between the Trust and the Indenture Trustee. This Class SB-II Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder Certificateholder of this Class SB-II Certificate by virtue of the acceptance hereof assents and by which such Holder Certificateholder is bound. Pursuant to the terms of the Agreement, a distribution will be made on the 25th day of each month March, June, September and December 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-II 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-II Certificate (based on the Certificate Percentage Interest stated on the face hereon) of the Certificate Distribution Amountamount, if any, required to be distributed to Holders Certificateholders of Certificates on such Payment Date. Distributions on this Class SB-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II Certificate at the office or agency maintained designated by the Certificate Registrar for that purpose in the City and State of New York. The initial Security Balance This Certificate has no Certificate Balance. Each Certificateholder of this Class SB-II Certificate is will be deemed to have agreed to be bound by the restrictions set forth above. The Security Balance hereof in the Agreement to the effect that (i) each person holding or acquiring any Ownership Interest in this Certificate must be a United States Person and a Permitted Transferee, (ii) the transfer of any Ownership Interest in this Certificate will be reduced conditioned upon the delivery to the extent Indenture Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any Ownership Interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any Ownership Interest in this Certificate in violation of such restrictions, then the Depositor will have the right, in its sole discretion and without notice to the Certificateholder of this Certificate, to sell this Certificate to a purchaser selected by the Depositor, which purchaser may be the Depositor, or any affiliate of the distributions allocable to principalDepositor, on such terms and conditions as the Depositor may choose. No transfer of this Class SBR-II 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, Indenture Trustee has received either (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 Depositor and the Depositor. The Holder hereof desiring Servicer with respect to effect the permissibility of such transfer shallunder the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and does hereby agree toSection 4975 of the Internal Revenue Code (the "Code") and stating, indemnify among other things, that the Trust, transferee's acquisition of a Class R Certificate will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of 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 Code 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 (iii) 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 provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other person (including an investment manager, a named fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of or purchasing any such Plan or any Person using the Certificate with "plan assets," within the meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counselPlan. This Class SB-II Certificate is one of a duly authorized issue of Certificates designated as GMACM Home Equity Loan-Backed Certificates of the Series specified hereon (herein collectively called the "Certificates"). All terms used in The Certificateholder of this Class SB-II Certificate which are defined in the Agreement shall have the meanings assigned to them in the Agreement. The CertificateholderCertificate, by its acceptance of this Class SB-II Certificatehereof, 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-II Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement. The Holder Certificateholder of this Class SB-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders and the Enhancer as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 TrustDepositor, 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 other 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 and the Enhancer 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 any such 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 HolderCertificateholder, but the Owner Trustee shall be furnished with a letter from each Rating Agency to the Rating Agencies effect that the such amendment will not result in the downgrading or withdrawal of the rating then assigned to any Security cause a Rating Event, if determined without regard to the Policy and the consent of the Credit Enhancer shall be obtainedPolicy. If the purpose of the any such amendment is to prevent the imposition of any federal or state taxes at any time that any Security is outstandingOutstanding, it shall not be necessary to obtain the consent of the any HolderCertificateholder, but the Owner Trustee and the 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 and the consent of the Credit Enhancer shall be obtainedCertificateholder. 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 each Rating Agency to the Rating Agencies effect that the such amendment will not result in the downgrading or withdrawal of the rating then assigned to any Securitycause a Rating Event, if determined without regard to the Policy or (b) the consent of Holders Certificateholders 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 Enhancerall Certificateholders affected thereby, or (ii) reduce the aforesaid percentage of Certificates the Holders Certificateholders of which are required to consent to any such amendment without the consent of the Holders Certificateholders 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 Certificateholder hereof or such HolderCertificateholder's attorney duly authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same Class and aggregate Certificate Percentage Interest will be issued to the designated transferee. The initial Certificate Registrar appointed under the Agreement is the Indenture Owner 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 Certificateholder surrendering the same. This Certificate is issued in the Percentage Interest above. No service charge will be made for any such registration of transfer or exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith. The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee, the Certificate Paying Agent, the Certificate Registrar or any such agent shall be affected by any notice to the contrary. This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware. The obligations created by the Agreement in respect of this Certificate and the Trust created thereby shall terminate upon the final distribution of all moneys or other property or proceeds of the Trust Estate in accordance with the terms of the Indenture and the Agreement. Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Owner Trustee, or an authenticating agent by manual signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose.
Appears in 1 contract
Sources: Trust Agreement (Residential Asset Mortgage Products Inc)
DISTRIBUTION INSTRUCTIONS. The assignee should include the following for the information of the Certificate Paying Agent: Distribution Registrar. Distributions shall be made by wire transfer in immediately available funds to for the account of account number _______________________ or, if mailed by check, to Applicable reports and statements should be mailed to_________________________________________________ for This information is provided by the account of ________________assignee named above, account number ______________, or, if mailed by check, to ______________. Applicable statements should be mailed to or __________________. ------------------------------ Signature of assignee or agent (for authorization of wire transfer only) FORM OF CLASS SB-II CERTIFICATE THIS CLASS SB-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN)_________________________________________as its agent. THIS CLASS SB-II CERTIFICATE EVIDENCES OWNERSHIP OF A REMIC RESIDUAL INTEREST. THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS ISSUED IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERNOT GUARANTEED BY, THE PERCENTAGE INTEREST DEPOSITOR, THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER OR ANY AFFILIATE OF THIS CERTIFICATE MAY CHANGE IN ACCORDANCE WITH SECTION 3.12 ANY OF THE AGREEMENT. THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO THEM AND IS NOT INSURED OR GUARANTEED BY ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTIONGOVERNMENTAL AGENCY OR PRIVATE INSURER. THIS CLASS SB-II CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDEDAMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE AND OR OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR 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 SUBJECT TO, REGISTRATION UNDER SUCH SECURITIES LAWS. THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) TO PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO THE DEPOSITOR OR AN AFFILIATE (AS DEFINED IN RULE 405 UNDER THE 1933 ACT) OR (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE 1933 ACT THAT IS ACQUIRING THE CERTIFICATE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND UNDER APPLICABLE LAWS NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION VIOLATION OF THE 1933 ACT, SUBJECT TO THE CERTIFICATE REGISTRAR'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN THE POOLING AND SERVICING AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE DEPOSITOR AND THE CERTIFICATE REGISTRAR, ON BEHALF OF THE TRUSTEE THAT SUCH TRANSFEREE IS TRANSFERRED NOT A “DISQUALIFIED ORGANIZATION” WITHIN THE MEANING OF SECTION 860E(e)(5) OF THE CODE AND WILL NOT BE A “DISQUALIFIED ORGANIZATION” AS OF THE DATE OF TRANSFER, AND THAT THE TRANSFEREE IS NOT ACQUIRING THIS CERTIFICATE FOR THE ACCOUNT OF, OR AS AGENT (INCLUDING A BROKER, NOMINEE, OR OTHER MIDDLEMAN) FOR, ANY PERSON OR ENTITY FROM WHICH IT HAS NOT RECEIVED A TRANSFER AFFIDAVIT SUBSTANTIALLY IN ACCORDANCE WITH THE FORM OF THE TRANSFER AFFIDAVIT PROVIDED BY SUCH TRANSFEREE. FOR THESE PURPOSES, A “DISQUALIFIED ORGANIZATION” MEANS THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL ENTITY), ANY COOPERATIVE ORGANIZATION FURNISHING ELECTRIC ENERGY OR PROVIDING TELEPHONE SERVICE TO PERSONS IN RURAL AREAS AS DESCRIBED IN CODE SECTION 1381(a)(2)(C), ANY “ELECTING LARGE PARTNERSHIP” WITHIN THE MEANING OF SECTION 775 OF THE CODE, OR ANY ORGANIZATION (OTHER THAN A FARMERS’ COOPERATIVE DESCRIBED IN CODE SECTION 521) THAT IS EXEMPT FROM FEDERAL INCOME TAX UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX ON UNRELATED BUSINESS INCOME IMPOSED BY CODE SECTION 511. SUCH AFFIDAVIT SHALL INCLUDE CERTAIN REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND ITS STATUS AS A NON-US PERSON (IF APPLICABLE). NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF SECTION 3.05 OF THE AMENDED AND RESTATED TRUST AGREEMENT ("THE AGREEMENT")THIS PARAGRAPH. NO TRANSFER OF THIS CLASS SB-II CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN ANY EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT SUBJECT TO THE PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("“ERISA"”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "“CODE"”), OR ANY PERSON ACTING(INCLUDING AN INSURANCE COMPANY INVESTING ITS GENERAL ACCOUNT, DIRECTLY AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR INDIRECTLY, ON BEHALF A TRUSTEE OF ANY SUCH PLAN) WHO IS USING “PLAN ASSETS” OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION. EACH INVESTOR IN THIS CERTIFICATE WILL BE DEEMED TO REPRESENT THAT IT IS IN COMPLIANCE WITH THE FOREGOING AND WILL BE FURTHER DEEMED TO REPRESENT, WARRANT AND COVENANT THAT IT WILL NOT SELL, PLEDGE OR ANY PERSON USING "PLAN ASSETS," WITHIN THE MEANING OTHERWISE TRANSFER SUCH ERISA-RESTRICTED CERTIFICATE IN VIOLATION OF THE DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, TO ACQUIRE THIS CLASS SB-II FOREGOING. ANY PURPORTED CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OWNER WHOSE ACQUISITION OR HOLDING OF THIS CLASS SB-II CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE (OR RESULT INTEREST THEREIN) WAS EFFECTED IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 VIOLATION OF THE CODE (OR COMPARABLE PROVISIONS RESTRICTIONS IN SECTION 3.03 OF ANY SUBSEQUENT ENACTMENTS) THE POOLING AND WILL NOT SUBJECT SERVICING AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE CERTIFICATE REGISTRAR, 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, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE OF THIS CLASS SB-II 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-II CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE DEPOSITOR, THE MASTER SERVICER, THE INDENTURE TRUSTEESECURITIES ADMINISTRATOR, THE OWNER TRUSTEE CUSTODIAN, THE SERVICERS, THE SERVICING ADMINISTRATOR, ANY SUBSERVICERS, THE INITIAL PURCHASERS AND THE TRUST FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR ANY EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT SUCH ACQUISITION OR THE OTHER BASIC DOCUMENTSHOLDING. Certificate No. 1 Evidencing a beneficial interest in a pool of residential mortgage loans and any other assets established by Percentage Interest of this Cut-off Date: June April 1, 2003 Date of Trust Agreement: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this 2015 Certificate: 100% Assumed Final Payment Scheduled Distribution Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 April 2046
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Five Oaks Investment Corp.)
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) FORM OF CLASS SBR-II III CERTIFICATES THIS CERTIFICATE THIS CLASS SBMAY NOT BE HELD BY OR TRANSFERRED TO A NON-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED HEREINBELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS ISSUED A "RESIDUAL INTEREST" IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERA "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE RESPECTIVELY, IN ACCORDANCE WITH SECTION 3.12 SECTIONS 860G AND 860D OF THE AGREEMENT. INTERNAL REVENUE CODE OF 1986 (THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 AGREEMENTCODE"). NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL MAY BE MADE TO ANY PERSON, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED TRANSFEREE PROVIDES EITHER (IA CERTIFICATION PURSUANT TO SECTION 3.05(b)(v)(B)(I) A REPRESENTATION LETTER FROM OF THE TRANSFEREE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CLASS SBCERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE EXEMPT PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS UNDER SECTION 406 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 DEPOSITORSERVICER, THE OWNER TRUSTEE, THE MASTER SERVICER COMPANY OR THE CERTIFICATE REGISTRAR TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (YF) AN AGENT OF A CERTIFICATION DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS SB-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE SUBJECT DEEMED TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS CONSENTED TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW. PROVISIONS OF THIS CLASS SB-II 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 DOCUMENTSPARAGRAPH. Certificate No. 1 Cut-off Date: June March 1, 2003 Date of Trust Agreement: June 26March 27, 2003 First Payment Date: Certificate Percentage Interest of July April 25, 2003 this Certificate: 100% Assumed Final Payment Date: June February 25, 2028 2033 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 HS1 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. Residential Funding Corporation is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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 Each Certificateholder of this Class SB-II Certificate is will be deemed to have agreed to be bound by the restrictions set forth above. The Security Balance hereof in the Agreement to the effect that (i) each person holding or acquiring any Ownership Interest in this Certificate must be a United States Person and a Permitted Transferee, (ii) the transfer of any Ownership Interest in this Certificate will be reduced conditioned upon the delivery to the extent Indenture Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any Ownership Interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any Ownership Interest in this Certificate in violation of such restrictions, then the Depositor will have the right, in its sole discretion and without notice to the Certificateholder of this Certificate, to sell this Certificate to a purchaser selected by the Depositor, which purchaser may be the Depositor, or any affiliate of the distributions allocable to principalDepositor, on such terms and conditions as the Depositor may choose. No transfer of this Class SBR-II III 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 has received (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 (a "Plan"), any person acting, directly or indirectly, on behalf of any such Plan plan or any Person person using the "plan assets," within the meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate such transferee is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel acceptable to and in form and substance satisfactory to the Depositor, the Owner Trustee, the Master Servicer and the Certificate Registrar, to the effect that the purchase or holding of this a Class SB-II R Certificate is permissible under applicable law, will not constitute or result in a non-exempt 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26March 27, 2003, between Home Equity Loan Trust 2003-HS2 HS1 (the "Trust") and JPMorgan Chase Bank, 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 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 related 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 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 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 related 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 Certificate is issued in the Certificate Percentage Interest above; however, the Certificate Percentage Interest of this Certificate may change in accordance with Section 3.12 of the Agreement. The Holder of this 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 Certificate is registered as the owner hereof for all purposes,
Appears in 1 contract
Sources: Trust Agreement (Residential Funding Mortgage Securities Ii Inc)
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) FORM OF CLASS SB-II CERTIFICATE THIS CLASS SB-II 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-II 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-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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-II CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE OF THIS CLASS SB-II 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-II 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: June November 1, 2003 2005 Date of Trust Agreement: June 26November 29, 2003 2005 First Payment Date: Certificate Percentage Interest of July 25December 27, 2003 2005 this Certificate: 100% Assumed Final Payment Date: June 25December 26, 2028 2035 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 20032005-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer Pramwave & Co. is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five four Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III II Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26November 29, 20032005, between Home Equity Loan Trust 20032005-HS2 (the "Trust") and JPMorgan Chase Bank, N.A., 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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-II Certificate is issued in the Certificate Percentage Interest above; however, the Certificate Percentage Interest of this Class SB-II Certificate may change in accordance with Section 3
Appears in 1 contract
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 ____________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 I-2 FORM OF CLASS SBR-II CERTIFICATE THIS CLASS SBCERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED HEREINBELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS ISSUED A "RESIDUAL INTEREST" IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERA "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE RESPECTIVELY, IN ACCORDANCE WITH SECTION 3.12 SECTIONS 860G AND 860D OF THE AGREEMENT. INTERNAL REVENUE CODE OF 1986 (THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 AGREEMENTCODE"). NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL MAY BE MADE TO ANY PERSON, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED TRANSFEREE PROVIDES EITHER (I) A REPRESENTATION LETTER FROM CERTIFICATION PURSUANT TO SECTION 3.05 OF THE TRANSFEREE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CLASS SBCERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE EXEMPT PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS UNDER SECTION 406 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 DEPOSITORSERVICER, THE OWNER TRUSTEE, THE MASTER SERVICER COMPANY OR THE CERTIFICATE REGISTRAR TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (YF) AN AGENT OF A CERTIFICATION DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS SB-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE SUBJECT DEEMED TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS CONSENTED TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW. PROVISIONS OF THIS CLASS SB-II 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 DOCUMENTSPARAGRAPH. Certificate No. 1 Class R-II Certificate Percentage Interest: 100% Cut-off Off Date: June 1, 2003 2005 Date of Trust Agreement: June 2629, 2003 2005 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed 2005 Final Payment Date: June November 25, 2028 2035 GMACM HOME EQUITY LOAN-BACKED CERTIFICATE CERTIFICATE, SERIES 20032005-HS2 HE2 evidencing a fractional undivided interest in GMACM Home Equity Loan Trust 2005-HE2 (the Owner Trust Estate"Trust"), the property of which consists primarily of the Home Equity Mortgage 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-II 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 SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliatesAffiliates. This Class SB-II Certificate is not guaranteed or insured by any governmental agency or instrumentality or by the Depositor, the SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee or GMAC Mortgage Group, Inc. or any of their affiliates. None of the Depositor, the SellerSellers, the Master Servicer, the Indenture Trustee, Trustee or the Owner Trustee, GMAC Mortgage Group, Inc. Trustee or any of their affiliates 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 Auer & Co. GMAC Mortgage Corporation is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II Certificate (as set forth on the face hereof) in certain distributions with respect to the Owner Trust Estate, consisting primarily of the Home Equity Mortgage Loans, created by Residential Funding Asset Mortgage Securities IIProducts, Inc. (the "Depositor"). The Trust (as defined herein) was created pursuant to a Trust Agreement trust agreement dated as specified above of June 29, 2005 (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 Capitalized terms used herein that are not otherwise defined shall have the meanings assigned ascribed thereto in Appendix A to the Agreementindenture dated as of June 29, 2005, between the Trust and the Indenture Trustee. This Class SB-II Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder Certificateholder of this Class SB-II Certificate by virtue of the acceptance hereof assents and by which such Holder Certificateholder is bound. Pursuant to the terms of the Agreement, a distribution will be made on the 25th day of each month March, June, September and December 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-II 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-II Certificate (based on the Certificate Percentage Interest stated on the face hereon) of the Certificate Distribution Amountamount, if any, required to be distributed to Holders Certificateholders of Certificates on such Payment Date. Distributions on this Class SB-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II Certificate at the office or agency maintained Corporate Trust Office of the Certificate Registrar. This Certificate has no Certificate Balance. Each Certificateholder of this Certificate will be deemed to have agreed to be bound by the Certificate Registrar for that purpose restrictions set forth in the City Agreement to the effect that (i) each person holding or acquiring any Ownership Interest in this Certificate must be a United States Person and State a Permitted Transferee, (ii) the transfer of New York. The initial Security Balance any Ownership Interest in this Certificate will be conditioned upon the delivery to the Indenture Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any Ownership Interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any Ownership Interest in this Certificate in violation of such restrictions, then the Depositor will have the right, in its sole discretion and without notice to the Certificateholder of this Class SB-II Certificate, to sell this Certificate is set forth above. The Security Balance hereof will to a purchaser selected by the Depositor, which purchaser may be reduced to the extent Depositor, or any affiliate of the distributions allocable to principalDepositor, on such terms and conditions as the Depositor may choose. No transfer of this Class SBR-II 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, Indenture Trustee has received either (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 Depositor and the Depositor. The Holder hereof desiring Servicer with respect to effect the permissibility of such transfer shallunder the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and does hereby agree toSection 4975 of the Internal Revenue Code (the "Code") and stating, indemnify among other things, that the Trust, transferee's acquisition of a Class R Certificate will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of 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 Code 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 (iii) 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 provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other person (including an investment manager, a named fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of or purchasing any such Plan or any Person using the Certificate with "plan assets," within the meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counselPlan. This Class SB-II Certificate is one of a duly authorized issue of Certificates designated as GMACM Home Equity Loan-Backed Certificates of the Series specified hereon (herein collectively called the "Certificates"). All terms used in The Certificateholder of this Class SB-II Certificate which are defined in the Agreement shall have the meanings assigned to them in the Agreement. The CertificateholderCertificate, by its acceptance of this Class SB-II Certificatehereof, 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-II Certificate or the Agreement or, except as expressly provided in the Agreement, subject to any liability under the Agreement. The Holder Certificateholder of this Class SB-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders and the Enhancer as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 TrustDepositor, 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 other 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 and the Enhancer 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 any such 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 HolderCertificateholder, but the Owner Trustee shall be furnished with a letter from each Rating Agency to the Rating Agencies effect that the such amendment will not result in the downgrading or withdrawal of the rating then assigned to any Security if cause a Rating Event, determined without regard to the Policy and the consent of the Credit Enhancer shall be obtainedPolicy. If the purpose of the any such amendment is to prevent the imposition of any federal or state taxes at any time that any Security is outstandingOutstanding, it shall not be necessary to obtain the consent of the any HolderCertificateholder, but the Owner Trustee and the 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 and the consent of the Credit Enhancer shall be obtainedCertificateholder. 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 each Rating Agency to the Rating Agencies effect that the such amendment will not result in the downgrading or withdrawal of the rating then assigned to any Securitycause a Rating Event, if determined without regard to the Policy or (b) the consent of Holders Certificateholders 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 Enhancerall Certificateholders affected thereby, or (ii) reduce the aforesaid percentage of Certificates the Holders Certificateholders of which are required to consent to any such amendment without the consent of the Holders Certificateholders 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II Certificate for registration of transfer at the offices or agencies Corporate Trust Office of the Certificate Registrar maintained in the City and State of New YorkRegistrar, accompanied by a written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder Certificateholder hereof or such HolderCertificateholder's attorney duly authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same Class and aggregate Certificate Percentage Interest will be issued to the designated transferee. The initial Certificate Registrar appointed under the Agreement is the Indenture Owner 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 Certificateholder surrendering the same. This Certificate is issued in the Percentage Interest above. No service charge will be made for any such registration of transfer or exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith. The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee, the Certificate Paying Agent, the Certificate Registrar or any such agent shall be affected by any notice to the contrary. This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware. The obligations created by the Agreement in respect of this Certificate and the Trust created thereby shall terminate upon the final distribution of all moneys or other property or proceeds of the Trust Estate in accordance with the terms of the Indenture and the Agreement. Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Owner Trustee, or an authenticating agent by manual signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose.
Appears in 1 contract
Sources: Trust Agreement (Gmacm Home Equity Loan Trust 2005-He2)
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 ___________ 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) FORM OF CLASS SB-II CERTIFICATE THIS CLASS SB-II 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-II 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-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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-II CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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, OR (Y) A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE OF THIS CLASS SB-II 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-II 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: June September 1, 2003 2005 Date of Trust Agreement: June 26September 23, 2003 2005 First Payment Date: Certificate Percentage Interest of July October 25, 2003 2005 this Certificate: 100% Assumed Final Payment Date: June October 25, 2028 2035 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 20032005-HS2 HS1 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer Pramwave & Co. is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five four Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III II Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26September 23, 20032005, between Home Equity Loan Trust 20032005-HS2 HS1 (the "Trust") and JPMorgan Chase Bank, N.A., 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 require
Appears in 1 contract
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) FORM OF CLASS SBR-II CERTIFICATES THIS CERTIFICATE THIS CLASS SBMAY NOT BE HELD BY OR TRANSFERRED TO A NON-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES AS DESCRIBED IN THE AGREEMENT UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED HEREINBELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-II CERTIFICATE IS ISSUED A "RESIDUAL INTEREST" IN THE PERCENTAGE INTEREST SET FORTH BELOW; HOWEVERA "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, THE PERCENTAGE INTEREST OF THIS CERTIFICATE MAY CHANGE RESPECTIVELY, IN ACCORDANCE WITH SECTION 3.12 SECTIONS 860G AND 860D OF THE AGREEMENT. INTERNAL REVENUE CODE OF 1986 (THE HOLDER OF THIS CLASS SB-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THIS CLASS SB-II 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 AGREEMENTCODE"). NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL MAY BE MADE TO ANY PERSON, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED TRANSFEREE PROVIDES EITHER (IA CERTIFICATION PURSUANT TO SECTION 3.05(b)(v)(B)(I) A REPRESENTATION LETTER FROM OF THE TRANSFEREE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CLASS SBCERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE EXEMPT PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS UNDER SECTION 406 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 DEPOSITORSERVICER, THE OWNER TRUSTEE, THE MASTER SERVICER COMPANY OR THE CERTIFICATE REGISTRAR TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (YF) AN AGENT OF A CERTIFICATION DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU OF SUCH OPINION OF COUNSEL. THE TRANSFEREE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS SB-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE SUBJECT DEEMED TO UNITED STATES FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS CONSENTED TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAWPROVISIONS OF THIS PARAGRAPH. THIS CLASS SB-II 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: June 1, 2003 Date of Trust Agreement: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June July 25, 2028 2033 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. Residential Funding Corporation is the registered ow▇▇▇ owner of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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 Each Certificateholder of this Class SB-II Certificate is will be deemed to have agreed to be bound by the restrictions set forth above. The Security Balance hereof in the Agreement to the effect that (i) each person holding or acquiring any Ownership Interest in this Certificate must be a United States Person and a Permitted Transferee, (ii) the transfer of any Ownership Interest in this Certificate will be reduced conditioned upon the delivery to the extent Indenture Trustee of, among other things, an affidavit to the effect that it is a United States Person and Permitted Transferee, (iii) any attempted or purported transfer of any Ownership Interest in this Certificate in violation of such restrictions will be absolutely null and void and will vest no rights in the purported transferee, and (iv) if any person other than a United States Person and a Permitted Transferee acquires any Ownership Interest in this Certificate in violation of such restrictions, then the Depositor will have the right, in its sole discretion and without notice to the Certificateholder of this Certificate, to sell this Certificate to a purchaser selected by the Depositor, which purchaser may be the Depositor, or any affiliate of the distributions allocable to principalDepositor, on such terms and conditions as the Depositor may choose. No transfer of this Class SBR-II 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 has received (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 (a "Plan"), any person acting, directly or indirectly, on behalf of any such Plan plan or any Person person using the "plan assets," within the meaning of the Department of Labor regulations at 29 C.F.R. ss.2510.3-101, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate such transferee is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel acceptable to and in form and substance satisfactory to the Depositor, the Owner Trustee, the Master Servicer and the Certificate Registrar, to the effect that the purchase or holding of this a Class SB-II R Certificate is permissible under applicable law, will not constitute or result in a non-exempt 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 Certificate is issued in the Certificate Percentage Interest above; however, the Certificate Percentage Interest of this Certificate may change in accordance with Section 3.12 of the Agreement. The Holder of this 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 Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee, the
Appears in 1 contract
Sources: Trust Agreement (Residential Funding Mortgage Securities Ii Inc)
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 __________. By:______________________________ 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 FORM OF CLASS SB-II B-__ CERTIFICATE THIS CLASS SB-II CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES AND THE VARIABLE FUNDING NOTES TO CERTAIN OTHER CLASSES OF CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN)TRUST AGREEMENT. THIS CLASS SB-II CERTIFICATE IS NOT TRANSFERABLE EXCEPT UPON SATISFACTION OF THE CONDITIONS IN SECTION 3.14 OF THE TRUST AGREEMENT. THIS 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-I CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS CERTIFICATE PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION. THE TRUST REPRESENTED BY THIS CLASS SB-II CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDEDAMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A U.S. PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF RULE 3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT LIMITED TO, THE DEPOSITOR, AN AFFILIATE THEREOF, UNITED NATIONAL BANK OR AN AFFILIATE THEREOF) IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR 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")SECURITIES LAWS. NO TRANSFER OF THIS CLASS SB-II CERTIFICATE OR ANY BENEFICIAL INTEREST HEREIN SHALL BE MADE TO ANY PERSON UNLESS THE OWNER TRUSTEE HAS RECEIVED A CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CLASS SB-II CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE (I) IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a) OF THE CODE; (II) IS NOT A PERSON WHICH IS AN EMPLOYEE BENEFIT PLAN, TRUST OR OTHER PLAN ACCOUNT SUBJECT TO THE PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS TITLE I 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-II CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, EITHER (X) AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB-II 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 A GOVERNMENTAL PLAN, DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (ANY SUBSEQUENT ENACTMENTSSUCH PERSON BEING A "PLAN") AND WILL (III) IS NOT SUBJECT AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE ACCOUNT OR GENERAL ACCOUNT, WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE DEPOSITORENTITY. THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF UNLESS, PRIOR TO SUCH DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE OWNER TRUSTEE, THE MASTER SERVICER OR TRUSTEE AND THE CERTIFICATE REGISTRAR A CERTIFICATE STATING THAT SUCH TRANSFEREE (A) AGREES TO ANY OBLIGATION OR LIABILITY IN ADDITION BE BOUND BY AND TO THOSE UNDERTAKEN IN ABIDE BY THE AGREEMENT, OR TRANSFER RESTRICTIONS APPLICABLE TO THIS CERTIFICATE; (YB) A CERTIFICATION IN IS NOT AN ENTITY THAT WILL HOLD THIS CERTIFICATE AS NOMINEE TO FACILITATE THE FORM OF EXHIBIT G TO THE AGREEMENT IN LIEU CLEARANCE AND SETTLEMENT OF SUCH OPINION SECURITY THROUGH ELECTRONIC BOOK-ENTRY CHANGES IN ACCOUNTS OF COUNSEL. PARTICIPATING ORGANIZATIONS; AND (C) UNDERSTANDS THAT IT MUST TAKE INTO ACCOUNT ITS PERCENTAGE INTEREST OF THE TRANSFEREE OF TAXABLE INCOME RELATING TO THIS CLASS SB-II 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. LAWCERTIFICATE. THIS CLASS SB-II CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE DEPOSITOR, THE MASTER SERVICER, THE INDENTURE OWNER TRUSTEE, THE CO-OWNER TRUSTEE, THE INDENTURE 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: June 1, 2003 Date of Trust Agreement: June 26, 2003 First Payment Date: Certificate Percentage Interest of July 25, 2003 this Certificate: 100% Assumed Final Payment Date: June 25, 2028 HOME EQUITY LOAN-BACKED CERTIFICATE SERIES 2003-HS2 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-II 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, Inc. or any of their affiliates. This Class SB-II 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, Inc. or any of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee, GMAC Mortgage Group, Inc. 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 Auer & Co. is the registered ow▇▇▇ of the Certificate Percentage Interest evidenced by this Class SB-II 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-II 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-II 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-II 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-II 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-II 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-II Certificate or the making of any notation hereon. Pursuant to the Agreement, the Trust has issued five Classes of Certificates, designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I Certificates, the Class R-II Certificates and the Class R-III Certificates. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Class SB-II 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-II 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-II 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-II 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 (a "Plan"), 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, to effect such acquisition (collectively, a "Plan Investor") or (ii) if this Class SB-II Certificate is presented for registration in the name of a Plan Investor, either (x) an opinion of counsel to the effect that the purchase or holding of this Class SB-II 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, or (y) a certification in the form of Exhibit G to the Agreement in lieu of such opinion of counsel. This Class SB-II 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-II 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-II 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-II 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-II Certificate acknowledges and agrees that its rights to receive distributions in respect of this Class SB-II Certificate are subordinated to the rights of the Noteholders as described in the Indenture, dated as of June 26, 2003, between Home Equity Loan Trust 2003-HS2 (the "Trust") and JPMorgan Chase Bank, 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 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 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 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-II Certificate is registerable in the Certificate Register upon surrender of this Class SB-II 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 .
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Sources: Trust Agreement (Bear Stearns Asset Backed Securities Inc)