EXECUTION COPY
RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
_________________________________________
AMENDED AND RESTATED TRUST AGREEMENT
Dated as of May 30, 2007
__________________________________________
Home Equity Loan-Backed Certificates,
Series 2007-HSA3
Table of Contents
Section
Page
ARTICLE 1
Definitions
Section 1.01. Definitions...............................................................1
Section 1.02. Other Definitional Provisions.............................................1
ARTICLE II
Organization
Section 2.01. Name......................................................................2
Section 2.02. Office....................................................................2
Section 2.03. Purposes and Powers.......................................................2
Section 2.04. Appointment of Owner Trustee..............................................3
Section 2.05. Initial Capital Contribution of Owner Trust Estate........................3
Section 2.06. Declaration of Trust......................................................3
Section 2.07. Liability of the Holders of the Certificates..............................4
Section 2.08. Title to Trust Property...................................................4
Section 2.09. Situs of Trust............................................................4
Section 2.10. Representations and Warranties of the Depositor...........................5
Section 2.11. Payment of Trust Fees.....................................................5
ARTICLE III
Conveyance Of The Home Equity Loans; Certificates
Section 3.01. Conveyance of The Home Equity Loans.......................................6
Section 3.02. Initial Ownership.........................................................6
Section 3.03. The Certificates..........................................................6
Section 3.04. Authentication of Certificates............................................6
Section 3.05. Registration of and Limitations on Transfer And Exchange of
Certificates..............................................................7
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates........................12
Section 3.07. Persons Deemed Certificateholders........................................13
Section 3.08. Access to List of Certificateholders' Names And Addresses................13
Section 3.09. Maintenance of Office or Agency..........................................13
Section 3.10. Certificate Paying Agent.................................................13
Section 3.11. Cooperation..............................................................15
Section 3.12. Additional Certificate Security Balances Upon Issuance of Capped
Funding Notes............................................................15
Section 3.13. Subordination............................................................16
Section 3.14. No Priority Among Certificates...........................................16
ARTICLE IV
Authority And Duties Of Owner Trustee
Section 4.01. General Authority........................................................16
Section 4.02. General Duties...........................................................16
Section 4.03. Action Upon Instruction..................................................17
Section 4.04. No Duties Except as Specified Under Specified Documents or In
Instructions.............................................................17
Section 4.05. Restrictions.............................................................18
Section 4.06. Prior Notice To Certificateholders and The Credit Enhancer With
Respect To Certain Matters...............................................18
Section 4.07. Action by Certificateholders with Respect to Certain Matters.............19
Section 4.08. Action By Certificateholders with Respect to Bankruptcy..................19
Section 4.09. Restrictions on Certificateholders' Power................................19
Section 4.10. Majority Control.........................................................19
Section 4.11. Doing Business In Other Jurisdictions....................................19
Section 4.12. Removal of Home Equity Loans.............................................19
ARTICLE V
Application Of Trust Funds
Section 5.01. Distributions............................................................20
Section 5.02. Method Of Payment........................................................21
Section 5.03. Signature On Returns.....................................................22
Section 5.04. Statements To Certificateholders.........................................22
Section 5.05. Tax Reporting............................................................22
Section 5.06. Reports to the Master Servicer...........................................22
Section 5.07 Derivative Contracts.....................................................22
ARTICLE VI
Concerning The Owner Trustee
Section 6.01. Acceptance of Trusts And Duties..........................................23
Section 6.02. Furnishing of Documents..................................................25
Section 6.03. Representations and Warranties...........................................25
Section 6.04. Reliance; Advice of Counsel..............................................25
Section 6.05. Not Acting in Individual Capacity........................................26
Section 6.06. Owner Trustee Not Liable for Certificates or Related Documents...........26
Section 6.07. Owner Trustee May Own Certificates and Notes.............................26
ARTICLE VII
Compensation Of Owner Trustee
Section 7.01. Owner Trustee's Fees And Expenses........................................27
Section 7.02. Indemnification..........................................................27
ARTICLE VIII
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement...........................................28
Section 8.02. Additional Termination Requirements......................................29
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee...............................30
Section 9.02. Replacement of Owner Trustee.............................................30
Section 9.03. Successor Owner Trustee..................................................31
Section 9.04. Merger or Consolidation of Owner Trustee.................................31
Section 9.05. Appointment of Co-Trustee or Separate Trustee............................31
ARTICLE X
Miscellaneous
Section 10.01. Amendments...............................................................33
Section 10.02. No Legal Title to Owner Trust Estate.....................................34
Section 10.03. Limitations on Rights of Others..........................................34
Section 10.04. Notices..................................................................35
Section 10.05. Severability.............................................................35
Section 10.06. Separate Counterparts....................................................35
Section 10.07. Successors and Assigns...................................................35
Section 10.08. No Petition..............................................................35
Section 10.09. No Recourse..............................................................36
Section 10.10. Headings.................................................................36
Section 10.11. Governing Law............................................................36
Section 10.12. Integration..............................................................36
Section 10.13. Rights of Credit Enhancer to Exercise Rights of Certificateholders.......36
ARTICLE XI
Compliance with Reg AB
Section 11.01. Intent of the Parties; Reasonableness....................................30
Section 11.02. Additional Representations and Warranties of Wilmington..................31
Section 11.03. Information to Be Provided by Wilmington.................................31
Section 11.04. Indemnification; Remedies................................................33
Signatures
EXHIBIT
Exhibit A - ...Form of Class SB Certificate A-1
Exhibit B - ...Certificate of Trust of Home Equity Loan Trust 2007-HSA3 B-1
Exhibit C - ...Form of 144A Investment Representation C-1
Exhibit D - ...Form of Investor Representation Letter D-1
Exhibit E - ..Form of Transferor Representation Letter E-1
Exhibit F - ...Form of Certificate of Non-Foreign Status F-1
Exhibit G - ...Form of ERISA Representation Letter G-1
Exhibit H - ...Form of Representation Letter H-1
Exhibit I -...Form of Class R Certificates I-1
Exhibit J-1 - Form of Transfer Affidavit and Agreement J-1-1
Exhibit J-2 - Form of Transferor Certificate J-2-1
This Amended and Restated Trust Agreement, dated as of May 30, 2007 (as amended from
time to time, this "Trust Agreement"), between RESIDENTIAL FUNDING MORTGAGE SECURITIES II,
INC., a Delaware corporation, as depositor (the "Depositor") and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as owner trustee (the "Owner Trustee"),
WITNESSETH THAT:
WHEREAS, the Depositor and the Owner Trustee entered into a trust agreement dated as
of May 29, 2007, in connection with the formation of a Delaware statutory trust (the
"Original Trust Agreement"); and
WHEREAS, the Depositor and the Owner Trustee wish to amend and restate the Original
Trust Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the
Depositor and the Owner Trustee agree as follows:
ARTICLE I
Definitions
Section 1.01. Definitions. For all purposes of this Trust Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires, capitalized
terms not otherwise defined herein shall have the meanings assigned to such terms in
Appendix A to the Indenture dated May 30, 2007 (the "Indenture"), between Home Equity
Loan Trust 2007-HSA3, as issuer, and LaSalle Bank National Association, as indenture
trustee. All other capitalized terms used herein shall have the meanings specified herein.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Trust Agreement shall have the defined meanings when
used in any certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As used in this Trust Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this Trust
Agreement or in any such certificate or other document, and accounting terms partly defined
in this Trust Agreement or in any such certificate or other document to the extent not
defined, shall have the respective meanings given to them under generally accepted
accounting principles. To the extent that the definitions of accounting terms in this Trust
Agreement or in any such certificate or other document are inconsistent with the meanings of
such terms under generally accepted accounting principles, the definitions contained in this
Trust Agreement or in any such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar import when
used in this Trust Agreement shall refer to this Trust Agreement as a whole and not to any
particular provision of this Trust Agreement; Article, Section and Exhibit references
contained in this Trust Agreement are references to Articles, Sections and Exhibits in or to
this Trust Agreement unless otherwise specified; the term "including" shall mean "including
without limitation"; and the term "proceeds" shall have the meaning ascribed thereto in the
UCC.
(d) The definitions contained in this Trust Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement, instrument
or statute as from time to time amended, modified or supplemented and includes (in the case
of agreements or instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted successors and
assigns.
ARTICLE II
Organization
Section 2.01. Name. The trust created hereby (the "Trust") shall be known as "Home
Equity Loan Trust 2007-HSA3," in which name the Owner Trustee may conduct the business of
the Trust, make and execute contracts and other instruments on behalf of the Trust and xxx
and be sued.
Section 2.02. Office. The office of the Trust shall be in care of the Owner Trustee
at the Corporate Trust Office or at such other address in Delaware as the Owner Trustee may
designate by written notice to the Certificateholders, the Credit Enhancer and the Depositor.
Section 2.03. Purposes and Powers. The purpose of the Trust is to engage in the
following activities:
(a) to issue the Notes pursuant to the Indenture and the Certificates pursuant to
this Trust Agreement and to sell the Notes and the Certificates;
(b) to purchase the Home Equity Loans and to pay the organizational, start-up and
transactional expenses of the Trust;
(c) to assign, grant, transfer, pledge and convey the Home Equity Loans pursuant
to the Indenture and to hold, manage and distribute to the Certificateholders pursuant to
Section 5.01 any portion of the Home Equity Loans released from the Lien of, and remitted to
the Trust pursuant to the Indenture;
(d) to enter into and perform its obligations under the Basic Documents to which
it is to be a party;
(e) to engage in those activities, including entering into agreements, that are
necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or
connected therewith, including, without limitation, to accept additional contributions of
equity that are not subject to the Lien of the Indenture; and
(f) subject to compliance with the Basic Documents, to engage in such other
activities as may be required in connection with conservation of the Owner Trust Estate and
the making of distributions to the Certificateholders and the Noteholders and payments to
the Credit Enhancer.
The Trust is hereby authorized to engage in the foregoing activities. The Trust shall not
engage in any activity other than in connection with the foregoing or other than as required
or authorized by the terms of this Trust Agreement or the Basic Documents while any Note is
outstanding without the consent of the Certificateholders of Certificates evidencing a
majority of the aggregate Certificate Percentage Interest of each Class of Certificates, the
Noteholders of Notes representing a majority of the aggregate Security Balances of the
Notes, the Credit Enhancer and the Indenture Trustee.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby appoints the Owner
Trustee as trustee of the Trust effective as of the date hereof, to have all the rights,
powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Owner Trust Estate. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Trust, as of the date hereof,
the sum of $1. In consideration of the delivery by the Owner Trustee, on behalf of the
Trust, of the Securities to the Depositor or its designee, upon the order of the Depositor,
the Owner Trustee hereby acknowledges receipt in trust from the Depositor, as of the Closing
Date, and concurrently with the execution and delivery hereof, the Depositor does hereby
transfer, assign, set over and otherwise convey to the Trust, without recourse, but subject
to the other terms and provisions of this Trust Agreement, all of the right, title and
interest of the Depositor in and to the Owner Trust Estate. The foregoing transfer,
assignment, set over and conveyance does not, and is not intended to, result in a creation
or an assumption by the Trust of any obligation of the Depositor or any other Person in
connection with the Trust Estate or under any agreement or instrument relating thereto,
except as specifically set forth herein.
The Owner Trustee, on behalf of the Trust, acknowledges the conveyance to the Trust
by the Depositor, as of the Closing Date, of the Owner Trust Estate, including all right,
title and interest of the Depositor in and to the Owner Trust Estate. Concurrently with
such conveyance and in exchange therefor, the Trust has pledged the Trust Estate to the
Indenture Trustee and has executed the Certificates and the Notes and caused them to be duly
authenticated and delivered.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares that it shall
hold the Owner Trust Estate in trust upon and subject to the conditions set forth herein for
the use and benefit of the Certificateholders, subject to the obligations of the Trust under
the Basic Documents. It is the intention of the parties hereto that the Trust constitute a
statutory trust under the Statutory Trust Statute and that this Trust Agreement constitute
the governing instrument of such statutory trust. Effective as of the date hereof, the
Owner Trustee shall have all rights, powers and duties set forth herein and in the Statutory
Trust Statute with respect to accomplishing the purposes of the Trust. It is the intention
of the parties hereto that solely for federal, state and local income and franchise tax
purposes, for so long as 100% of the Class SB-II Certificates are held by a single person or
entity, the Trust (other than the portion of the Trust constituting the REMICs) shall be
treated as a disregarded entity, with the Owner Trust Estate, exclusive of the portion of
the Owner Trust Estate constituting the REMICs, being treated as assets of the single person
or entity, and the Class II Notes being treated as debt of the single person or entity, and
the provisions of this Trust Agreement shall be interpreted to further this intention. It
is the intention of the parties hereto that an election to be treated as a REMIC ("REMIC I")
for federal income tax purposes be made with respect to the Home Equity Loans in Loan Group
I together with the proceeds of the Home Equity Loans in Loan Group I and the proceeds of
the Group I Policy on deposit in the Certificate Distribution Account, the Custodial Account
and the Payment Account, for purposes of the REMIC Provisions. It is also the intention of
the parties hereto that a second election to be treated as a REMIC be made with respect to
the REMIC I Regular Interests ("REMIC II"). The Issuer will provide for the administration
of REMIC I and REMIC II pursuant to Article XI of the Indenture. If more than one person
owns the Class SB-II Certificates, then it is the intention of the parties hereto, that
solely for federal, state and local income and franchise tax purposes the Trust, exclusive
of the portion of the Owner Trust Estate constituting the REMICs, shall be treated as a
partnership, with the assets of the partnership being the Owner Trust Estate, exclusive of
the assets of the REMICs, the partners of the partnership being the Holders of the Class
SB-II Certificates and the Class II Notes being debt of the partnership and the provisions of
this Trust Agreement shall be interpreted to further this intention. The parties agree
that, unless otherwise required by appropriate tax authorities, the Owner Trustee will file
or cause to be filed annual or other necessary returns, reports and other forms as provided
by the original Certificateholder consistent with the characterization of the Trust as an
entity wholly owned by the Depositor or an affiliate thereof, or if two or more persons own
the Class SB-II Certificates, as a partnership for such tax purposes and as provided by
holders of such Certificates.
Section 2.07. Liability of the Holders of the Certificates. The Holders of the
Certificates shall be liable for any entity level taxes imposed on the Trust.
Section 2.08. Title to Trust Property. Legal title to the Owner Trust Estate shall
be vested at all times in the Trust as a separate legal entity except where applicable law
in any jurisdiction requires title to any part of the Owner Trust Estate to be vested in a
trustee or trustees, in which case title shall be deemed to be vested in the Owner Trustee,
a co-trustee and/or a separate trustee, as the case may be.
Section 2.09. Situs of Trust. The Trust will be located and administered in the
State of Delaware. All bank accounts maintained by the Owner Trustee on behalf of the Trust
shall be located in the State of Delaware or the State of New York. The Trust shall not
have any employees in any state other than Delaware; provided, however, that nothing herein
shall restrict or prohibit the Owner Trustee from having employees within or without the
State of Delaware or taking actions outside the State of Delaware in order to comply with
Section 2.03. Payments will be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York. The only office of the
Trust will be at the Corporate Trust Office in Delaware.
Section 2.10. Representations and Warranties of the Depositor. The Depositor hereby
represents and warrants to the Owner Trustee that:
(a) The Depositor is duly organized and validly existing as a corporation
in good standing under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties are currently owned
and such business is presently conducted.
(b) The Depositor is duly qualified to do business as a foreign corporation
in good standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its property or the conduct of its
business shall require such qualifications and in which the failure to so qualify
would have a material adverse effect on the business, properties, assets or condition
(financial or other) of the Depositor and the ability of the Depositor to perform
under this Trust Agreement.
(c) The Depositor has the power and authority to execute and deliver this
Trust Agreement and to carry out its terms; the Depositor has full power and
authority to sell and assign the property to be sold and assigned to and deposited
with the Trust as part of the Trust and the Depositor has duly authorized such sale
and assignment and deposit to the Trust by all necessary corporate action; and the
execution, delivery and performance of this Trust Agreement have been duly authorized
by the Depositor by all necessary corporate action.
(d) The consummation of the transactions contemplated by this Trust
Agreement and the fulfillment of the terms hereof do not conflict with, result in any
material breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a material default under, the articles of incorporation or
bylaws of the Depositor, or any material indenture, agreement or other instrument to
which the Depositor is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor's knowledge, any
order, rule or regulation applicable to the Depositor of any court or of any federal
or state regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties.
Section 2.11. Payment of Trust Fees. The Owner Trustee shall pay the Trust's fees
and expenses incurred with respect to the performance of the Trust's duties under the
Indenture.
ARTICLE III
Conveyance of the Home Equity Loans; Certificates
Section 3.01. Conveyance of the Home Equity Loans. The Depositor, concurrently with
the execution and delivery hereof, does hereby transfer, convey, sell and assign to the
Trust, on behalf of the Holders of the Notes and the Certificates and the Credit Enhancer,
without recourse, all its right, title and interest in and to the Home Equity Loans. The
Depositor will also provide the Trust with the Group I Policy and the Group II Policy.
The Depositor, as assignee of Residential Funding under the Purchase Agreement,
hereby assigns to the Issuer all of its right, title and interest in respect of the Purchase
Agreement applicable to a Home Equity Loan. Insofar as the Purchase Agreement relates to
the representations and warranties made by Residential Funding in respect of such Home
Equity Loan and any remedies provided thereunder for any breach of such representations and
warranties, the Depositor acknowledges that such right, title and interest may be enforced
by or on behalf of the Issuer.
The parties hereto intend that, for non-tax purposes, the transaction set forth
herein be a sale by the Depositor to the Trust of all of its right, title and interest in
and to the Home Equity Loans. In the event that, for non-tax purposes, the transaction set
forth herein is not deemed to be a sale, the Depositor hereby grants to the Trust a security
interest in all of its right, title and interest in, to and under the Owner Trust Estate,
all distributions thereon and all proceeds thereof; and this Trust Agreement shall
constitute a security agreement under applicable law.
Section 3.02. Initial Ownership. Upon the formation of the Trust by the contribution
by the Depositor pursuant to Section 2.05 and until the conveyance of the Home Equity Loans
pursuant to Section 3.01 and the issuance of the Certificates, the Depositor shall be the
sole Certificateholder.
Section 3.03. The Certificates. The Certificates shall be issued in minimum
denominations of a Certificate Percentage Interest of 10.0000% and integral multiples of
0.0001% in excess thereof; provided, however, that Certificates may be issued in minimum
denominations of less than 10.0000% in accordance with the provisions of Section 3.12. The
Class SB-I Certificates and Class SB-II Certificates shall be issued in substantially the
form attached hereto as Exhibit A. The Class R-I Certificates and Class R-II Certificates
shall be issued in substantially the form attached hereto as Exhibit I.
The Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee and authenticated in the manner
provided in Section 3.04. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Trust, shall be validly issued and entitled to the benefit of this
Trust Agreement, notwithstanding that such individuals or any of them shall have ceased to
be so authorized prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of authentication and delivery of such Certificates. A Person
shall become a Certificateholder and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such Person's acceptance of a Certificate
duly registered in such Person's name, pursuant to Section 3.05.
A transferee of a Certificate shall become a Certificateholder and shall be entitled
to the rights and subject to the obligations of a Certificateholder hereunder upon such
transferee's acceptance of a Certificate duly registered in such transferee's name pursuant
to and upon satisfaction of the conditions set forth in Section 3.05.
Section 3.04. Authentication of Certificates. Concurrently with the acquisition of
the Home Equity Loans by the Trust, the Owner Trustee or the Certificate Paying Agent shall
cause each Class of the Certificates in an initial Certificate Percentage Interest of
100.00% to be executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Depositor, signed by its chairman of the board, its president or any
vice president, without further corporate action by the Depositor, in authorized
denominations. No Certificate shall entitle its holder to any benefit under this Trust
Agreement or be valid for any purpose unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in Exhibit A or Exhibit I
hereto, executed by the Owner Trustee or the Certificate Paying Agent, by manual signature;
such authentication shall constitute conclusive evidence that such Certificate shall have
been duly authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
Section 3.05. Registration of and Limitations on Transfer and Exchange of
Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 3.09, a Certificate Register in which, subject to
such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for
the registration of Certificates and of transfers and exchanges of Certificates as herein
provided. The Indenture Trustee shall be the initial Certificate Registrar. If the
Certificate Registrar resigns or is removed, the Owner Trustee shall appoint a successor
Certificate Registrar.
Subject to satisfaction of the conditions set forth below, upon surrender for
registration of transfer of any Certificate at the office or agency maintained pursuant to
Section 3.09, the Owner Trustee shall execute, authenticate and deliver (or shall cause the
Certificate Registrar as its authenticating agent to authenticate and deliver), in the name
of the designated transferee or transferees, one or more new Certificates of the same Class
in authorized denominations of a like aggregate amount dated the date of authentication by
the Owner Trustee or any authenticating agent. At the option of a Certificateholder,
Certificates may be exchanged for other Certificates of the same Class of authorized
denominations of a like aggregate amount upon surrender of the Certificates to be exchanged
at the office or agency maintained pursuant to Section 3.09.
Every Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Certificateholder or such Certificateholder's
attorney duly authorized in writing. Each Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the Certificate
Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or exchange of
Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
Except as described below, each holder of a Class SB-II Certificate or a Class R
Certificate shall establish its non-foreign status by submitting to the Certificate Paying
Agent an IRS Form W-9 and the Certificate of Non-Foreign Status (in substantially the form
attached hereto as Exhibit F).
A Class SB-II Certificate or Class R Certificate may be transferred to a
Certificateholder unable to establish its non-foreign status as described in the preceding
paragraph only if such Certificateholder provides an Opinion of Counsel, which Opinion of
Counsel shall not be an expense of the Trust, the Owner Trustee, the Certificate Registrar
or the Depositor, satisfactory to the Depositor and the Credit Enhancer, that such transfer
(1) will not affect the tax status of the Trust and (2) will not adversely affect the
interests of any Certificateholder, Noteholder or the Credit Enhancer, including, without
limitation, as a result of the imposition of any United States federal withholding taxes on
the Trust (except to the extent that such withholding taxes would be payable solely from
amounts otherwise distributable to the Certificate of the prospective transferee). If such
transfer occurs and such foreign Certificateholder becomes subject to such United States
federal withholding taxes, any such taxes will be withheld by the Indenture Trustee. Each
holder of a Class SB-II Certificate or a Class R Certificate unable to establish its
non-foreign status shall submit to the Certificate Paying Agent a copy of its Form W-8 and
shall resubmit such Form W-8-BEN or such successor form as required by then-applicable
regulations and shall resubmit such form every three years or with such frequency as
required by then-applicable regulations.
(b)(i) No transfer, sale, pledge or other disposition of a Certificate shall be made
unless such transfer, sale, pledge or other disposition is exempt from the registration
requirements of the Securities Act and any applicable state securities laws or is made in
accordance with said Act and laws. In the event of any such transfer, the Certificate
Registrar or the Depositor shall prior to such transfer require the transferee (A) to either
(i) execute an investment letter in substantially the form attached hereto as Exhibit C (or
in such form and substance reasonably satisfactory to the Certificate Registrar and the
Depositor) which investment letters shall not be an expense of the Trust, the Owner Trustee,
the Certificate Registrar, the Master Servicer or the Depositor and which investment letter
states that, among other things, such transferee (a) is a "qualified institutional buyer" as
defined under Rule 144A, acting for its own account or the accounts of other "qualified
institutional buyers" as defined under Rule 144A, and (b) is aware that the proposed
transferor intends to rely on the exemption from registration requirements under the
Securities Act, provided by Rule 144A or (ii) (a) deliver to the Certificate Registrar and
the Depositor a written Opinion of Counsel acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis therefor, from
said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel
shall not be an expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Master Servicer or the Depositor and (b) execute a representation letter, substantially in
the form of Exhibit D hereto, and to cause the transferor to execute a representation
letter, substantially in the form of Exhibit E hereto, each acceptable to and in form and
substance satisfactory to the Certificate Registrar and the Depositor certifying the facts
surrounding such transfer, which representation letters shall not be an expense of the
Trust, the Owner Trustee, the Certificate Registrar, the Master Servicer or the Depositor
and (B) in the case of a Class SB-II Certificate or Class R Certificate to execute the
Certificate of Non-Foreign Status (in substantially the form attached hereto as Exhibit F)
acceptable to and in form and substance reasonably satisfactory to the Certificate Registrar
and the Depositor, which certificate shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar or the Depositor. If the Certificateholder is unable to
provide a Certificate of Non-Foreign Status, the Certificateholder must provide an Opinion
of Counsel as described in the preceding paragraph. The Certificateholder desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trust, the Owner
Trustee, the Certificate Registrar, the Master Servicer, the Credit Enhancer and the
Depositor against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
(ii) No transfer of Certificates or any interest therein shall be made to any
employee benefit plan or certain other retirement plans and arrangements, including
individual retirement accounts and annuities, Xxxxx plans and bank collective investment
funds and insurance company general or separate accounts in which such plans, accounts or
arrangements are invested, that are subject to Title I of ERISA, or Section 4975 of the Code
(collectively, "Plan"), any Person acting, directly or indirectly, on behalf of any such
Plan or any Person acquiring such Certificates with "plan assets" of a Plan within the
meaning of the Department of Labor regulation promulgated at 29 C.F.R.ss.2510.3-101 ("Plan
Assets") unless the Depositor, the Owner Trustee, the Certificate Registrar and the Master
Servicer are provided with an Opinion of Counsel which establishes to the satisfaction of
the Depositor, the Owner Trustee, the Certificate Registrar and the Master Servicer that the
purchase of Certificates is permissible under applicable law, will not constitute or result
in any prohibited transaction under ERISA or Section 4975 of the Code and will not subject
the Depositor, the Owner Trustee, the Certificate Registrar or the Master Servicer to any
obligation or liability (including obligations or liabilities under ERISA or Section 4975 of
the Code) in addition to those undertaken in this Trust Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Owner Trustee, the Certificate Registrar or
the Master Servicer. Neither an Opinion of Counsel nor a certification will be required in
connection with the initial transfer of any such Certificate by the Depositor to an
affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall be
deemed to have represented that such affiliate is not a Plan or a Person investing Plan
Assets of any Plan) and the Owner Trustee shall be entitled to conclusively rely upon a
representation (which, upon the request of the Owner Trustee, shall be a written
representation) from the Depositor of the status of such transferee as an affiliate of the
Depositor.
(iii) In addition, no transfer of a Class SB-II Certificate shall be permitted, and
no such transfer shall be registered by the Certificate Registrar or be effective hereunder,
unless evidenced by an Opinion of Counsel addressed to the Certificate Registrar and the
Credit Enhancer, which establishes that such transfer or the registration of such transfer
would not cause the Trust to be classified as a publicly traded partnership, an association
taxable as a corporation or a taxable mortgage pool for federal and relevant state income
tax purposes, which Opinion of Counsel shall not be an expense of the Certificate Registrar
and shall be an expense of the proposed transferee. No Opinion of Counsel will be required
if such transfer is made to a nominee of an existing beneficial holder of a Certificate.
(iv) In addition, no transfer, sale, assignment, pledge or other disposition of a
Certificate shall be made unless the proposed transferee executes a representation letter
substantially in the form of Exhibit D, or substantially in the form of Exhibit H hereto,
that (1) the transferee is acquiring the Certificate for its own behalf and is not acting as
agent or custodian for any other Person or entity in connection with such acquisition and
(2) if the transferee is a partnership, grantor trust or S corporation for federal income
tax purposes, the Certificates acquired are not more than 50% of the assets of the
partnership, grantor trust or S corporation.
(v) In addition, with respect to each Class R Certificate, (i) Each Person who has
or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the
acceptance or acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Certificate Paying Agent or its
designee under clause (vii)(A) below to deliver payments to a Person other than such Person
and to negotiate the terms of any mandatory sale under clause (vii)(B) below and to execute
all instruments of transfer and to do all other things necessary in connection with any such
sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate
shall be a Permitted Transferee and shall promptly notify the Owner Trustee of
any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Class R
Certificate, the Certificate Registrar shall require delivery to it, and shall
not register the Transfer of any Class R Certificate until its receipt of, (I)
an affidavit and agreement (a "Transfer Affidavit and Agreement," in the form
attached hereto as Exhibit J-1) from the proposed Transferee, in form and
substance satisfactory to the Master Servicer, representing and warranting,
among other things, that it is a Permitted Transferee, that it is not
acquiring its Ownership Interest in the Class R Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent for any Person
who is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Class R Certificate, it will endeavor to remain a
Permitted Transferee, and that it has reviewed the provisions of this Section
3.05 and agrees to be bound by them, and (II) a certificate, in the form
attached hereto as Exhibit J-2, from the Certificateholder of a Class R
Certificate wishing to transfer the Class R Certificate, in form and substance
satisfactory to the Master Servicer, representing and warranting, among other
things, that no purpose of the proposed Transfer is to impede the assessment
or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee under clause (B) above, if a Responsible Officer of the Certificate
Registrar who is assigned to this Agreement has actual knowledge that the
proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership
Interest in a Class R Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest in a
Class R Certificate and (y) not to transfer its Ownership Interest unless it
provides a certificate to the Certificate Registrar in the form attached
hereto as Exhibit J-2.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by
purchasing an Ownership Interest in such Certificate, agrees to give the
Certificate Registrar written notice that it is a "pass-through interest
holder" within the meaning of Temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a
Class R Certificate, if it is, or is holding an Ownership Interest in a Class
R Certificate on behalf of, a "pass-through interest holder."
(vi) The Certificate Registrar will register the Transfer of any Class R
Certificate only if it shall have received the Transfer Affidavit and Agreement, a
certificate of the Certificateholder of a Class R Certificate requesting such transfer in
the form attached hereto as Exhibit G and all of such other documents as shall have been
reasonably required by the Certificate Registrar as a condition to such registration.
Transfers of the Class R Certificates to Non-United States Persons and Disqualified
Organizations (as defined in Section 860E(e)(5) of the Code) are prohibited.
(vii) (A) If any Disqualified Organization shall become a holder of a Class R
Certificate, then the last preceding Permitted Transferee shall be restored, to the extent
permitted by law, to all rights and obligations as Certificateholder of a Class R
Certificate thereof retroactive to the date of registration of such Transfer of such Class R
Certificate. If a Non-United States Person shall become a holder of a Class R Certificate,
then the last preceding United States Person shall be restored, to the extent permitted by
law, to all rights and obligations as Certificateholder of a Class R Certificate thereof
retroactive to the date of registration of such Transfer of such Class R Certificate. If a
transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury
Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding Permitted
Transferee shall be restored, to the extent permitted by law, to all rights and obligations
as Certificateholder of a Class R Certificate thereof retroactive to the date of
registration of such Transfer of such Class R Certificate. The Certificate Registrar shall
be under no liability to any Person for any registration of Transfer of a Class R
Certificate that is in fact not permitted by this Section 3.05 or for making any payments
due on such Certificate to the holder thereof or for taking any other action with respect to
such holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Certificateholder of a Class
R Certificate in violation of the restrictions in this Section 3.05 and to the extent
that the retroactive restoration of the rights of the Certificateholder of such Class
R Certificate as described in clause (vii)(A) above shall be invalid, illegal or
unenforceable, then the Master Servicer shall have the right, without notice to the
holder or any prior holder of such Class R Certificate, to sell such Class R
Certificate to a purchaser selected by the Master Servicer on such terms as the
Master Servicer may choose. Such purported Transferee shall promptly endorse and
deliver each Class R Certificate in accordance with the instructions of the Master
Servicer. Such purchaser may be the Master Servicer itself or any Affiliate of the
Master Servicer. The proceeds of such sale, net of the commissions (which may
include commissions payable to the Master Servicer or its Affiliates), expenses and
taxes due, if any, will be remitted by the Master Servicer to such purported
Transferee. The terms and conditions of any sale under this clause (vii)(B) shall be
determined in the sole discretion of the Master Servicer, and the Master Servicer
shall not be liable to any Person having an Ownership Interest in a Class R
Certificate as a result of its exercise of such discretion.
(viii) The REMIC Administrator shall make available all information necessary
to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest
in a Class R Certificate to any Person who is a Disqualified Organization, including
the information regarding "excess inclusions" of such Class R Certificates required
to be provided to the Internal Revenue Service and certain Persons as described in
Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a result
of any regulated investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the Code that
holds an Ownership Interest in a Class R Certificate having as among its record
holders at any time any Person who is a Disqualified Organization. Reasonable
compensation for providing such information may be required by the REMIC
Administrator before it will provide such information to any such potentially
affected Person.
(ix) The provisions of this Section 3.05 set forth prior to this clause (ix)
may be modified, added to or eliminated, provided that there shall have been
delivered to the Owner Trustee the following:
(A) written notification from each Rating Agency to the effect that
the modification, addition to or elimination of such provisions will not cause
such Rating Agency to downgrade its then-current ratings, if any, if
determined without regard to the Group I Policy and Group II Policy, of any
Class of the Notes below the lower of the then-current rating or the rating
assigned to such Notes as of the Closing Date by such Rating Agency, if
determined without regard to the Group I Policy and Group II Policy; and
(B) subject to Section 11.01(f) of the Indenture, an Officers'
Certificate of the Master Servicer stating that the Master Servicer has
received an Opinion of Counsel, in form and substance satisfactory to the
Master Servicer and the Credit Enhancer, to the effect that such modification,
addition to or absence of such provisions will not cause any portion of any of
the REMICs to cease to qualify as a REMIC and will not cause (x) any portion
of any of the REMICs to be subject to an entity-level tax caused by the
Transfer of any Class R Certificate to a Person that is a Disqualified
Organization or (y) a Certificateholder or another Person to be subject to a
REMIC-related tax caused by the Transfer of a Class R Certificate to a Person
that is not a Permitted Transferee.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates. If (i) any
mutilated Certificate shall be surrendered to the Certificate Registrar, or if the
Certificate Registrar shall receive evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (ii) there shall be delivered to the Certificate Registrar and
the Owner Trustee such security or indemnity as may be required by them to save each of them
and the Issuer from harm, then in the absence of notice to the Certificate Registrar or the
Owner Trustee that such Certificate has been acquired by a bona fide purchaser, the Owner
Trustee shall execute on behalf of the Trust and the Owner Trustee or the Certificate Paying
Agent, as the Trust's authenticating agent, shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and denomination. In connection with the issuance of any new Certificate
under this Section 3.06, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant to this Section
3.06 shall constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.
Section 3.07. Persons Deemed Certificateholders. Prior to due presentation of a
Certificate for registration of transfer, the Owner Trustee, the Certificate Registrar or
any Certificate Paying Agent may treat the Person in whose name any Certificate is
registered in the Certificate Register as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 5.02 and for all other purposes whatsoever, and
none of the Trust, the Owner Trustee, the Certificate Registrar or any Paying Agent shall be
bound by any notice to the contrary.
Section 3.08. Access to List of Certificateholders' Names and Addresses. The
Certificate Registrar shall furnish or cause to be furnished to the Depositor or the Owner
Trustee, within 15 days after receipt by the Certificate Registrar of a written request
therefor from the Depositor or the Owner Trustee, a list, in such form as the Depositor or
the Owner Trustee, as the case may be, may reasonably require, of the names and addresses of
the Certificateholders as of the most recent Record Date. Each Holder, by receiving and
holding a Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Registrar or the Owner Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such information was
derived.
Section 3.09. Maintenance of Office or Agency. The Owner Trustee, on behalf of the
Trust, shall maintain in the City of Chicago, Illinois an office or offices or agency or
agencies where Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Owner Trustee in respect of the Certificates and
the Basic Documents may be served. The Owner Trustee initially designates the Corporate
Trust Office of the Indenture Trustee as its office for such purposes. The Owner Trustee
shall give prompt written notice to the Depositor, the Credit Enhancer and the
Certificateholders of any change in the location of the Certificate Register or any such
office or agency.
Section 3.10. Certificate Paying Agent. (a) The Certificate Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution Account on behalf
of the Trust in accordance with the provisions of the Certificates and Section 5.01 hereof
from payments remitted to the Certificate Paying Agent by the Indenture Trustee pursuant to
Section 3.05 of the Indenture. The Trust hereby appoints the Indenture Trustee as
Certificate Paying Agent and the Indenture Trustee hereby accepts such appointment and
further agrees that it will be bound by the provisions of this Trust Agreement relating to
the Certificate Paying Agent and shall:
(i) hold all sums held by it for the payment of amounts due with respect to
the Certificates in trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust of which it
has actual knowledge in the making of any payment required to be made with respect to the
Certificates;
(iii) at any time during the continuance of any such default, upon the
written request of the Owner Trustee, forthwith pay to the Owner Trustee on behalf of the
Trust all sums so held in Trust by such Certificate Paying Agent;
(iv) immediately resign as Certificate Paying Agent and forthwith pay to the
Owner Trustee on behalf of the Trust all sums held by it in trust for the payment of
Certificates if at any time it ceases to meet the standards required to be met by the
Certificate Paying Agent at the time of its appointment;
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Certificates of any applicable withholding
taxes imposed thereon and with respect to any applicable reporting requirements in
connection therewith; and
(vi) deliver to the Owner Trustee a copy of the report to Certificateholders
prepared with respect to each Payment Date by the Master Servicer pursuant to Section 4.01
of the Servicing Agreement.
(b) The Trust may revoke such power and remove the Certificate Paying Agent if the
Owner Trustee determines in its sole discretion that the Certificate Paying Agent shall have
failed to perform its obligations under this Trust Agreement in any material respect. The
Indenture Trustee shall be permitted to resign as Certificate Paying Agent upon 30 days'
written notice to the Owner Trustee; provided the Indenture Trustee is also resigning as
Paying Agent under the Indenture at such time. In the event that the Indenture Trustee
shall no longer be the Certificate Paying Agent under this Trust Agreement and Paying Agent
under the Indenture, the Owner Trustee shall appoint a successor to act as Certificate
Paying Agent (which shall be a bank or trust company) and which shall also be the successor
Paying Agent under the Indenture. The Owner Trustee shall cause such successor Certificate
Paying Agent or any additional Certificate Paying Agent appointed by the Owner Trustee to
execute and deliver to the Owner Trustee an instrument to the effect set forth in this
Section 3.10 as it relates to the Certificate Paying Agent. The Certificate Paying Agent
shall return all unclaimed funds to the Trust and upon removal of a Certificate Paying Agent
such Certificate Paying Agent shall also return all funds in its possession to the Trust.
The provisions of Sections 6.01, 6.04, 6.05, 6.06, 7.01 and 7.02 shall apply to the
Certificate Paying Agent to the extent applicable. Any reference in this Trust Agreement to
the Certificate Paying Agent shall include any co-paying agent unless the context requires
otherwise.
(c) The Certificate Paying Agent shall establish and maintain with itself the
Certificate Distribution Account in which the Certificate Paying Agent shall deposit, on the
same day as it is received from the Indenture Trustee, each remittance received by the
Certificate Paying Agent with respect to payments made pursuant to the Indenture. The
Certificate Paying Agent shall make all distributions of Certificate Distribution Amounts on
the Certificates, from moneys on deposit in the Certificate Distribution Account.
Section 3.11. Cooperation. The Owner Trustee shall cooperate in all respects with
any reasonable request by the Credit Enhancer for action to preserve or enforce the Credit
Enhancer's rights or interest under this Trust Agreement or the Insurance Agreement,
consistent with this Trust Agreement and without limiting the rights of the
Certificateholders as otherwise expressly set forth in this Trust Agreement.
Section 3.12. Additional Certificate Security Balances Upon Issuance of Capped
Funding Notes. (a) On any date on which Variable Funding Notes are exchanged for Capped
Funding Notes pursuant to Section 4.01(d) of the Indenture, the Security Balance of one or
more Class SB-II Certificates shall be increased in an amount equal to the Additional
Certificate Security Balance as required pursuant to the Opinion of Counsel required to be
delivered pursuant to Section 4.01(d) of the Indenture in connection with the issuance of
Capped Funding Notes. In addition, on any Payment Date on which the Additional Balance
Differential for such Payment Date if added to the aggregate Security Balance of the
Variable Funding Notes (after application of any principal payments to be made thereon on
such Payment Date) would cause the aggregate Security Balance thereof to exceed the Maximum
Variable Funding Balance, then the Security Balance of one or more Certificates shall be
increased by the amount of such excess.
(b) 100.00% of the value of the Additional Certificate Security Balance shall be
added to any Class SB-II Certificate held by the Seller or an Affiliate thereof without the
consent of the other Certificateholders; or if no such Class SB-II Certificate exists, a new
Class SB-II Certificate or Class SB-II Certificates shall be issued at the direction of the
Seller or an Affiliate thereof having in the aggregate a Security Balance equal to such
100.00% of such value. Alternatively, the Depositor may allocate any portion of such value
to a Class SB-II Certificateholder other than the Depositor or an Affiliate thereof,
provided that such Certificateholder provides its written consent to the Depositor and the
Owner Trustee.
(c) Following such increase, the Certificate Percentage Interest of each Class
SB-II Certificate shall be recalculated, the numerator of which shall be the value thereof
including the respective value of the portion of the Additional Certificate Security Balance
added thereto pursuant to this Section 3.12, and the denominator of which shall be the value
of all the Class SB-II Certificates following such increase. The Owner Trustee shall issue
new Class SB-II Certificates with new Certificate Percentage Interests to each Holder of the
Class SB-II Certificates, with such Certificate Percentage Interests calculated to four
decimal places. In addition, the new Class SB-II Certificates may be issued in minimum
denominations of 0.0001% and integral multiples of 0.0001% in excess thereof. This
subsection, and subsections (d) and (e) below, shall not apply in the event that any
Additional Certificate Security Balance is allocated in accordance with subsection (b)
either (i) at any time when there is only one Class SB-II Certificateholder, or (ii) at any
time when there is more than one Class SB-II Certificateholder if such Additional
Certificate Security Balance is allocated on a pro rata basis among all Class SB-II
Certificates.
(d) For purposes of the foregoing, the "value" of any Class SB-II Certificate or
any Additional Certificate Security Balance added thereto shall be determined by the Seller
in its sole discretion based on reasonable cash flow assumptions and valuation methods, and
any such determination shall be binding on the Certificateholders. If the Seller is unable
to determine the "value," the Owner Trustee shall determine the "value" using the same
assumptions and methods.
(e) The Owner Trustee, the Indenture Trustee and the Issuer agree to cooperate
with each other and the Depositor and the Seller and to cause no unreasonable delay in
adjusting the Certificate Percentage Interests of the Class SB-II Certificates pursuant to
this Section 3.12 and the issuing of Capped Funding Notes in connection with Section 4.01(d)
of the Indenture.
Section 3.13. Subordination. Except as otherwise provided in the Basic Documents,
for so long as any Notes are outstanding or unpaid, the Certificateholders will generally be
subordinated in right of payment, under the Certificates or otherwise, to payments to the
Noteholders under, or otherwise related to, the Indenture. If an Event of Default has
occurred and is continuing under the Indenture, the Certificates will be fully subordinated
to obligations owing by the Trust to the Noteholders and the Credit Enhancer under, or
otherwise related to, the Indenture, and no distributions will be made on the Certificates
until the Noteholders and the Indenture Trustee and the Credit Enhancer have been
irrevocably paid in full.
Section 3.14. No Priority Among Certificates. All Certificateholders shall rank
equally as to amounts distributable upon the liquidation, dissolution or winding up of the
Trust, with no preference or priority being afforded to any Certificateholders over any
other Certificateholders, except that amounts distributable to the Group I Certificates will
be distributed first to the Class SB-I Certificates, in an amount equal to the Class SB-I
Distribution Amount for such Payment Date and the Class SB-I Distribution Amount for any
previous Payment Date to the extent not previously paid, before being distributed to the
Class R-I Certificates, and amounts distributable to the Class SB-II Certificates will be
distributed to the Class SB-II Certificates.
ARTICLE IV
Authority and Duties of Owner Trustee
Section 4.01. General Authority. The Owner Trustee is authorized and directed to
execute and deliver the Basic Documents to which the Trust is to be a party and each
certificate or other document attached as an exhibit to or contemplated by the Basic
Documents to which the Trust is to be a party and any amendment or other agreement or
instrument described herein, in each case, in such form as the Owner Trustee shall approve,
as evidenced conclusively by the Owner Trustee's execution thereof. In addition to the
foregoing, the Owner Trustee is obligated to take all actions required of the Trust pursuant
to the Basic Documents.
Section 4.02. General Duties. The Owner Trustee shall be responsible to administer
the Trust pursuant to the terms of this Trust Agreement and the Basic Documents to which the
Trust is a party and in the interest of the Certificateholders, subject to the Basic
Documents and in accordance with the provisions of this Trust Agreement.
Section 4.03. Action upon Instruction. (a) Subject to this Article IV and in
accordance with the terms of the Basic Documents, the Certificateholders may by written
instruction direct the Owner Trustee in the management of the Trust. Such direction may be
exercised at any time by written instruction of the Certificateholders pursuant to this
Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be required to take
any action hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to result in
liability on the part of the Owner Trustee or is contrary to the terms hereof or of any
Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative courses of
action permitted or required by the terms of this Trust Agreement or under any Basic
Document, or in the event that the Owner Trustee is unsure as to the application of any
provision of this Trust Agreement or any Basic Document or any such provision is ambiguous
as to its application, or is, or appears to be, in conflict with any other applicable
provision, or in the event that this Trust Agreement permits any determination by the Owner
Trustee or is silent or is incomplete as to the course of action that the Owner Trustee is
required to take with respect to a particular set of facts, the Owner Trustee shall promptly
give notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders (with a copy to the Credit Enhancer) requesting instruction as to the
course of action to be adopted, and to the extent the Owner Trustee acts in good faith in
accordance with any written instructions received from Holders of Certificates representing
a majority of the Security Balance of each Class of Certificates, the Owner Trustee shall
not be liable on account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement or the Basic Documents, as it shall deem
to be in the best interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for such action or inaction.
Section 4.04. No Duties Except as Specified under Specified Documents or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of, or otherwise deal with the
Owner Trust Estate, or to otherwise take or refrain from taking any action under, or in
connection with, any document contemplated hereby to which the Owner Trustee is a party,
except as expressly provided (i) in accordance with the powers granted to and the authority
conferred upon the Owner Trustee pursuant to this Trust Agreement, (ii) in accordance with
the Basic Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 4.03; and no implied duties or obligations shall be
read into this Trust Agreement or any Basic Document against the Owner Trustee. The Owner
Trustee shall have no responsibility for filing any financing or continuation statement in
any public office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to prepare or file any Securities and
Exchange Commission filing for the Trust or to record this Trust Agreement or any Basic
Document. The Owner Trustee nevertheless agrees that it will, at its own cost and expense,
promptly take all action as may be necessary to discharge any liens on any part of the Owner
Trust Estate that result from actions by, or claims against, the Owner Trustee that are not
related to the ownership or the administration of the Owner Trust Estate.
Section 4.05. Restrictions. (a) The Owner Trustee shall not take any action (x)
that is inconsistent with the purposes of the Trust set forth in Section 2.03 or (y) that,
to the actual knowledge of the Owner Trustee, would result in the Trust becoming taxable as
a corporation or a taxable mortgage pool for federal income tax purposes or would cause
REMIC I or REMIC II to fail to qualify as a REMIC at any time that any of the Notes or
Certificates are outstanding or any obligations are due and owing to the Credit Enhancer
under the Insurance Agreement. The Certificateholders shall not direct the Owner Trustee to
take action that would violate the provisions of this Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the Trust's properties
or assets, including those included in the Trust Estate, to any person unless (a) it shall
have received an Opinion of Counsel to the effect that such transaction will not have any
material adverse tax consequence to the Trust or any Certificateholder and (b) such
conveyance or transfer shall not violate the provisions of Section 3.16(b) of the Indenture.
Section 4.06. Prior Notice to Certificateholders and the Credit Enhancer with Respect
to Certain Matters. With respect to the following matters, the Owner Trustee shall not take
action unless, at least 30 days before the taking of such action, the Owner Trustee shall
have notified the Certificateholders and the Credit Enhancer in writing of the proposed
action and Holders of Certificates representing a majority of the Security Balance thereof
and the Credit Enhancer shall not have notified the Owner Trustee in writing prior to the
30th day after such notice is given that such Certificateholders and the Credit Enhancer
have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims or lawsuits
brought in connection with the collection of cash distributions due and owing under the Home
Equity Loans) and the compromise of any action, claim or lawsuit brought by or against the
Trust (except with respect to the aforementioned claims or lawsuits for collection of cash
distributions due and owing under the Home Equity Loans);
(b) the election by the Trust to file an amendment to the Certificate of Trust
(unless such amendment is required to be filed under the Statutory Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in circumstances
where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in circumstances
where the consent of any Noteholder is not required and such amendment materially adversely
affects the interest of the Certificateholders; and
(e) the appointment pursuant to the Indenture of a successor Note Registrar,
Paying Agent or Indenture Trustee or pursuant to this Trust Agreement of a successor
Certificate Registrar or Certificate Paying Agent or the consent to the assignment by the
Note Registrar, Paying Agent, Indenture Trustee, Certificate Registrar or Certificate Paying
Agent of its obligations under the Indenture or this Trust Agreement, as applicable.
Section 4.07. Action by Certificateholders with Respect to Certain Matters. The
Owner Trustee shall not have the power, except upon the direction of Certificateholders
evidencing not less than a majority of the outstanding Security Balance of the Certificates,
and with the consent of the Credit Enhancer, to (a) remove the Master Servicer under the
Servicing Agreement pursuant to Section 7.01 thereof or (b) except as expressly provided in
the Basic Documents, sell the Home Equity Loans after the termination of the Indenture. The
Owner Trustee shall take the actions referred to in the preceding sentence only upon written
instructions signed by Certificateholders evidencing not less than a majority of the
outstanding Security Balance of the Certificates and with the consent of the Credit Enhancer.
Section 4.08. Action by Certificateholders with Respect to Bankruptcy. The Owner
Trustee shall not have the power to commence a voluntary proceeding in bankruptcy relating
to the Trust without the unanimous prior approval of all Certificateholders and with the
consent of the Credit Enhancer and the delivery to the Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder reasonably
believes that the Trust is insolvent.
Section 4.09. Restrictions on Certificateholders' Power. The Certificateholders
shall not direct the Owner Trustee to take or to refrain from taking any action if such
action or inaction would be contrary to any obligation of the Trust or the Owner Trustee
under this Trust Agreement or any of the Basic Documents or would be contrary to Section
2.03, nor shall the Owner Trustee be obligated to follow any such direction, if given.
Section 4.10. Majority Control. Except as expressly provided herein, any action that
may be taken by the Certificateholders under this Trust Agreement may be taken by the
Certificateholders evidencing not less than a majority of the outstanding Security Balance
of the Certificates. Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Trust Agreement shall be effective if signed
by Certificateholders evidencing not less than a majority of the outstanding Security
Balance of the Certificates at the time of the delivery of such notice.
Section 4.11. Doing Business in Other Jurisdictions. Notwithstanding anything
contained herein to the contrary, neither Wilmington Trust Company nor the Owner Trustee
shall be required to take any action in any jurisdiction other than in the State of Delaware
if the taking of such action will, even after the appointment of a co-trustee or separate
trustee in accordance with Section 9.05 hereof, (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration with or the taking
of any other action in respect of, any state or other governmental authority or agency of
any jurisdiction other than the State of Delaware; (ii) result in any fee, tax or other
governmental charge under the laws of the State of Delaware becoming payable by Wilmington
Trust Company, or (iii) subject Wilmington Trust Company to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by Wilmington Trust Company or the Owner
Trustee, as the case may be, contemplated hereby.
Section 4.12. Removal of Home Equity Loans. Certificateholders holding 100% of the
Certificate Percentage Interests of the Class SB-II Certificates may, by delivering a
written request to the Owner Trustee to such effect, cause the removal of Home Equity Loans
in Loan Group II from the Trust Estate in accordance with and subject to the provisions of
Section 3.15(b) of the Servicing Agreement. Promptly following receipt of any such request,
the Owner Trustee shall deliver to the Master Servicer the written notice and request
required to be delivered to the Master Servicer pursuant to Section 3.15(b) of the Servicing
Agreement. Any Group II Loans removed from the Trust Estate pursuant to Section 3.15(b) of
the Servicing Agreement shall be property of the Issuer and, upon the written request of the
Class SB-II Certificateholders holding 100% of the Certificate Percentage Interests of the
Class SB-II Certificates, be released to the Class SB-II Certificateholders as a dividend
and in accordance with the written instructions of such Certificateholders.
ARTICLE V
Application of Trust Funds
Section 5.01. Distributions. (a) On each Payment Date, the Certificate Paying Agent
shall distribute to the Certificateholders all funds on deposit in the Certificate
Distribution Account and available therefor (as provided in Section 3.05 of the Indenture),
as the Certificate Distribution Amount for such Payment Date. Any such amounts payable to
the holders of the Group I Certificates shall be distributed, first, to the
Certificateholders of the Class SB-I Certificates, in an amount equal to the Class SB-I
Distribution Amount for such Payment Date and the Class SB-I Distribution Amount for any
previous Payment Date to the extent not previously paid, and second, to the
Certificateholders of the Class R-I Certificates, any amounts remaining. All distributions
made pursuant to this Section to any Class of Certificates shall be distributed to the
Certificateholders of such Class pro rata based on the respective Percentage Interests
thereof.
(b) In the event that any withholding tax is imposed on the distributions (or
allocations of income) to a Certificateholder, such tax shall reduce the amount otherwise
distributable to the Certificateholder in accordance with this Section 5.01. The
Certificate Paying Agent is hereby authorized and directed to retain or cause to be retained
from amounts otherwise distributable to the Certificateholders sufficient funds for the
payment of any tax that is legally owed by the Trust (but such authorization shall not
prevent the Owner Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to a Certificateholder
shall be treated as cash distributed to such Certificateholder at the time it is withheld by
the Certificate Paying Agent and remitted to the appropriate taxing authority. If there is
a possibility that withholding tax is payable with respect to a distribution (such as a
distribution to a non-U.S. Certificateholder), the Certificate Paying Agent may in its sole
discretion withhold such amounts in accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the creditors of
the Trust, including the Noteholders and the Credit Enhancer.
(d) Allocations of profits and losses, as determined for federal income tax
purposes, shall be made among the Classes of Group I Certificates in accordance with the
REMIC provisions and within each Class of Certificates to the Certificateholders on a pro
rata basis based on the Certificate Percentage Interests thereof.
(e) [Reserved]
(f) On each Distribution Date, the following amounts, in the following order of
priority, shall be distributed by REMIC I to REMIC II on account of the REMIC I Regular
Interests:
(i) first, to the extent of the Available Distribution Amount, to the
Holders of REMIC I Regular Interest LT1, REMIC I Regular Interest LT2, REMIC I
Regular Interest LT3 and REMIC I Regular Interest LT4, pro rata, in an amount equal
to (A) their Uncertificated Accrued Interest for such Distribution Date, plus (B) any
amounts in respect thereof remaining unpaid from previous Payment Dates; and
(ii) second, on each Payment Date, to the Holders of REMIC I Regular
Interests after the distributions made pursuant to clause (i) above, allocated as
follows (except as provided below):
(i) to the Holders of the REMIC I Regular Interest LT2, REMIC I
Regular Interest LT3 and REMIC I Regular Interest LT4, their respective
Principal Distribution Amounts;
(ii) to the Holders of the REMIC I Regular Interest LT1 any
remainder until the Uncertificated Principal Balance thereof is reduced to
zero;
(iii) any remainder to the Holders of the REMIC I Regular Interest
LT2, REMIC I Regular Interest LT3 and REMIC I Regular Interest LT4 pro rata
according to their respective Uncertificated Principal Balances as reduced by
the distributions deemed made pursuant to (i) above, until their respective
Uncertificated Principal Balances are reduced to zero; and
(iv) any remaining amounts to the Holders of the Class R-I
Certificates.
(g) On each Payment Date, following the distributions made pursuant to clauses (i)
through (iv) of Section 3.05(a)(I) of the Indenture, the remaining amount shall be deemed
distributed by REMIC II first to REMIC II Regular Interest SB-IO until its accrued and
unpaid interest for the current and all prior Payment Dates shall have been reduced to zero,
second to the REMIC II Regular Interest SB-PO until the Uncertificated Principal Balance
thereof shall have been reduced to zero and third to the Class R-II Certificates any
remaining amount. From the amounts deemed distributed from REMIC II pursuant to the
preceding sentence, first the Class R-II Certificateholder and then the Class SB-I
Certificateholder (as the owner of REMIC II Regular Interests SB-IO and SB-PO) shall be
deemed to have paid the amounts required to be paid pursuant to clause (ix) of Section
3.05(a)(I).
Section 5.02. Method of Payment. Subject to Section 8.01(c), distributions required
to be made to Certificateholders on any Payment Date as provided in Section 5.01 shall be
made to each Certificateholder of record on the preceding Record Date either by wire
transfer, in immediately available funds, to the account of such Holder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall have provided
to the Certificate Registrar appropriate written instructions at least five Business Days
prior to such Payment Date or, if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register.
Section 5.03. Signature on Returns. The Owner Trustee shall sign on behalf of the
Trust the tax returns of the Trust. The REMIC Administrator, as agent for the Owner Trustee,
shall sign on behalf of the Trust the tax returns of REMIC I and REMIC II. The Owner
Trustee shall give the REMIC Administrator all such powers of attorney as are needed to
enable the REMIC Administrator to prepare and sign such tax returns. In the event that
approval from the applicable District Director of the Internal Revenue Service for the REMIC
Administrator or the Master Servicer to sign the tax returns is not forthcoming following
application, the REMIC Administrator shall prepare and the Owner Trustee shall sign the tax
returns for REMIC I and REMIC II or the Master Servicer shall prepare and the Owner Trustee
shall sign the tax returns for the Trust, as applicable.
Section 5.04. Statements to Certificateholders. On each Payment Date, the
Certificate Paying Agent shall make available on its website to each Certificateholder the
statement or statements provided to the Owner Trustee and the Certificate Paying Agent by
the Master Servicer pursuant to Section 4.01 of the Servicing Agreement with respect to such
Payment Date.
Section 5.05. Tax Reporting. So long as the Depositor or any Affiliate of the
Depositor owns 100% of the Certificates (the "Original Certificateholder"), then no separate
federal and state income tax returns and information returns or statements will be filed
with respect to the Trust, other than the portion of the Trust constituting the REMICs. If
the Original Certificateholder is no longer the sole Class SB-I Certificateholder, the
subsequent holders of the Class SB-I Certificates by their acceptance hereof, agree to
appoint the Original Certificateholder as their agent for the tax matters partner and the
Original Certificateholder, as agent for such holders, agrees to perform all duties
necessary to comply with federal and state income tax laws.
Any Class SB-II Certificateholder that holds 100% of the Class SB-II Certificates
agrees by its purchase of 100% of the Class SB-II Certificates to treat the Trust, other
than the portion of the Trust constituting the REMICs, as a disregarded entity wholly owned
by such Class SB-II Certificateholder for purposes of federal and state income tax,
franchise tax and any other tax measured in whole or in part by income, with the assets of
the Trust (other than the assets constituting the REMICs) being treated as being owned by
such Certificateholder, and the Class II Notes being debt of the Certificateholder.
Section 5.06. Reports to the Master Servicer. In connection with the preparation and
filing by the Master Servicer, on behalf of the Depositor and in respect of the Trust, of
periodic reports required to be filed under the provisions of the Exchange Act and the rules
and regulations of the Commission thereunder, the Depositor shall timely provide to the
Master Servicer all material information available to them which is required to be included
in such reports.
ARTICLE VI
Concerning the Owner Trustee
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts the trusts
hereby created and agrees to perform its duties hereunder with respect to such trusts but
only upon the terms of this Trust Agreement. The Owner Trustee and the Certificate Paying
Agent also agree to disburse all moneys actually received by it constituting part of the
Owner Trust Estate upon the terms of the Basic Documents and this Trust Agreement. The
Owner Trustee shall not be answerable or accountable hereunder or under any Basic Document
under any circumstances, except (i) for its own willful misconduct, negligence or bad faith
or negligent failure to act or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 6.03 expressly made by the Owner Trustee. In particular, but
not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) No provision of this Trust Agreement or any Basic Document shall require the
Owner Trustee to expend or risk funds or otherwise incur any financial liability in the
performance of any of its rights, duties or powers hereunder or under any Basic Document if
the Owner Trustee shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured or provided
to it;
(b) Under no circumstances shall the Owner Trustee be liable for indebtedness
evidenced by or arising under any of the Basic Documents, including the principal of and
interest on the Notes;
(c) The Owner Trustee shall not be responsible for or in respect of the validity
or sufficiency of this Trust Agreement or for the due execution hereof by the Depositor or
for the form, character, genuineness, sufficiency, value or validity of any of the Owner
Trust Estate, or for or in respect of the validity or sufficiency of the Basic Documents,
the Notes, the Certificates, other than the certificate of authentication on the
Certificates, if executed by the Owner Trustee and the Owner Trustee shall in no event
assume or incur any liability, duty, or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein or expressly agreed to in the
Basic Documents;
(d) The execution, delivery, authentication and performance by it of this Trust
Agreement will not require the authorization, consent or approval of, the giving of notice
to, the filing or registration with, or the taking of any other action with respect to, any
governmental authority or agency;
(e) The Owner Trustee shall not be liable for the default or misconduct of the
Depositor, the Indenture Trustee or the Master Servicer under any of the Basic Documents or
otherwise and the Owner Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Trust Agreement or the Basic Documents that are required
to be performed by the Indenture Trustee under the Indenture or the Seller under the Home
Equity Loan Purchase Agreement; and
(f) The Owner Trustee shall be under no obligation to exercise any of the rights
or powers vested in it or duties imposed by this Trust Agreement, or to institute, conduct
or defend any litigation under this Trust Agreement or otherwise or in relation to this
Trust Agreement or any Basic Document, at the request, order or direction of any of the
Certificateholders, unless such Certificateholders have offered to the Owner Trustee
security or indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee to
perform any discretionary act enumerated in this Trust Agreement or in any Basic Document
shall not be construed as a duty, and the Owner Trustee shall not be answerable for other
than its negligence, bad faith or willful misconduct in the performance of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish to the
Securityholders and the Credit Enhancer promptly upon receipt of a written reasonable
request therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the Trust under
the Basic Documents.
Section 6.03. Representations and Warranties. The Owner Trustee hereby represents
and warrants to the Depositor, for the benefit of the Certificateholders and the Credit
Enhancer, that:
(a) It is a banking corporation duly organized and validly existing in good
standing under the laws of the State of Delaware. It has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Trust Agreement;
(b) It has taken all corporate action necessary to authorize the execution and
delivery by it of this Trust Agreement, and this Trust Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver this Trust
Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance by it with any of
the terms or provisions hereof will contravene any federal or Delaware law, governmental
rule or regulation governing the banking or trust powers of the Owner Trustee or any
judgment or order binding on it, or constitute any default under its charter documents or
bylaws or any indenture, mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound;
(d) This Trust Agreement, assuming due authorization, execution and delivery by
the Owner Trustee and the Depositor, constitutes a valid, legal and binding obligation of
the Owner Trustee, enforceable against it in accordance with the terms hereof subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at law;
(e) The Owner Trustee is not in default with respect to any order or decree of any
court or any order, regulation or demand of any federal, state, municipal or governmental
agency, which default might have consequences that would materially and adversely affect the
condition (financial or other) or operations of the Owner Trustee or its properties or might
have consequences that would materially adversely affect its performance hereunder; and
(f) No litigation is pending or, to the best of the Owner Trustee's knowledge,
threatened against the Owner Trustee which would prohibit its entering into this Trust
Agreement or performing its obligations under this Trust Agreement.
Section 6.04. Reliance; Advice of Counsel. (a) The Owner Trustee shall incur no
liability to anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond, or other document or paper believed by
it to be genuine and believed by it to be signed by the proper party or parties. The Owner
Trustee may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such resolution has been
duly adopted by such body and that the same is in full force and effect. As to any fact or
matter the method of determination of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on a certificate, signed by the president or any
vice president or by the treasurer or other authorized officers of the relevant party, as to
such fact or matter and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in the
performance of its duties and obligations under this Trust Agreement or the Basic Documents,
the Owner Trustee (i) may act directly or through its agents, attorneys, custodians or
nominees (including persons acting under a power of attorney) pursuant to agreements entered
into with any of them, and the Owner Trustee shall not be liable for the conduct or
misconduct of such agents, attorneys, custodians or nominees (including persons acting under
a power of attorney) if such persons have been selected by the Owner Trustee with reasonable
care, and (ii) may consult with counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it at the expense of the Trust. The Owner
Trustee shall not be liable for anything done, suffered or omitted in good faith by it in
accordance with the opinion or advice of any such counsel, accountants or other such Persons
and not contrary to this Trust Agreement or any Basic Document.
Section 6.05. Not Acting in Individual Capacity. Except as provided in this Article
VI, in accepting the trusts hereby created Wilmington Trust Company acts solely as Owner
Trustee hereunder and not in its individual capacity, and all Persons having any claim
against the Owner Trustee by reason of the transactions contemplated by this Trust Agreement
or any Basic Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof.
Section 6.06. Owner Trustee Not Liable for Certificates or Related Documents. The
recitals contained herein and in the Certificates (other than the signatures of the Owner
Trustee on the Certificates) shall be taken as the statements of the Depositor, and the
Owner Trustee assumes no responsibility for the correctness thereof. The Owner Trustee
makes no representations as to the validity or sufficiency of this Trust Agreement, of any
Basic Document or of the Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents. The Owner Trustee shall at no time
have any responsibility or liability with respect to the sufficiency of the Owner Trust
Estate or its ability to generate the payments to be distributed to Certificateholders under
this Trust Agreement or the Noteholders under the Indenture, including, the compliance by
the Depositor or the Seller with any warranty or representation made under any Basic
Document or in any related document or the accuracy of any such warranty or representation,
or any action of the Certificate Paying Agent, the Certificate Registrar or the Indenture
Trustee taken in the name of the Owner Trustee.
Section 6.07. Owner Trustee May Own Certificates and Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates or Notes
and may deal with the Depositor, the Seller, the Certificate Paying Agent, the Certificate
Registrar and the Indenture Trustee in transactions with the same rights as it would have if
it were not Owner Trustee.
ARTICLE VII
Compensation of Owner Trustee
Section 7.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall receive as
compensation for its services hereunder such fees as have been separately agreed upon before
the date hereof, and the Owner Trustee shall be reimbursed for its reasonable expenses
hereunder and under the Basic Documents, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner Trustee may
reasonably employ in connection with the exercise and performance of its rights and its
duties hereunder and under the Basic Documents which shall be payable by the Master Servicer
pursuant to Section 3.09 of the Servicing Agreement.
Section 7.02. Indemnification. The holder of the majority of the Certificate
Percentage Interest of the Class SB Certificates in the aggregate shall indemnify, defend
and hold harmless the Owner Trustee and its successors, assigns, agents and servants
(collectively, the "Indemnified Parties") from and against, any and all liabilities,
obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and expenses) of any kind
and nature whatsoever (collectively, "Expenses") which may at any time be imposed on,
incurred by, or asserted against the Owner Trustee or any Indemnified Party in any way
relating to or arising out of this Trust Agreement, the Basic Documents, the Owner Trust
Estate, the administration of the Owner Trust Estate or the action or inaction of the Owner
Trustee hereunder, provided, that:
(a) the holder of the majority of the Certificate Percentage Interest of
the Certificates shall not be liable for or required to indemnify an Indemnified Party from
and against Expenses arising or resulting from the Owner Trustee's willful misconduct,
negligence or bad faith or as a result of any inaccuracy of a representation or warranty
contained in Section 6.03 expressly made by the Owner Trustee;
(b) with respect to any such claim, the Indemnified Party shall have given
the holder of the majority of the Certificate Percentage Interest of the Certificates
written notice thereof promptly after the Indemnified Party shall have actual knowledge
thereof;
(c) while maintaining control over its own defense, the holder of the
majority of the Certificate Percentage Interest of the Certificates shall consult with the
Indemnified Party in preparing such defense; and
(d) notwithstanding anything in this Trust Agreement to the contrary, the
holder of the majority of the Certificate Percentage Interest of the Certificates shall not
be liable for settlement of any claim by an Indemnified Party entered into without the prior
consent of the holder of the majority of the Certificate Percentage Interest of the
Certificates which consent shall not be unreasonably withheld.
The indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Trust Agreement. In the event
of any claim, action or proceeding for which indemnity will be sought pursuant to this
Section 7.02, the Owner Trustee's choice of legal counsel, if other than the legal counsel
retained by the Owner Trustee in connection with the execution and delivery of this Trust
Agreement, shall be subject to the approval of the holder of the majority of the Certificate
Percentage Interest of the Class SB Certificates in the aggregate, which approval shall not
be unreasonably withheld. In addition, upon written notice to the Owner Trustee and with
the consent of the Owner Trustee which consent shall not be unreasonably withheld, the
holder of the majority of the Certificate Percentage Interest of the Class SB Certificates
in the aggregate has the right to assume the defense of any claim, action or proceeding
against the Owner Trustee.
ARTICLE VIII
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement. (a) This Trust Agreement (other than
this Article VIII) and the Trust shall terminate and be of no further force or effect upon
the earliest of (i) the final distribution of all moneys or other property or proceeds of
the Owner Trust Estate in accordance with the terms of the Indenture and this Trust
Agreement or (ii) the purchase by the Master Servicer of all Home Equity Loans pursuant to
Section 8.08 of the Servicing Agreement; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States
to the Court of St. Xxxxx, living on the date hereof. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder shall not (x) operate to terminate
this Trust Agreement or the Trust or (y) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or proceeding in any
court for a partition or winding up of all or any part of the Trust or the Owner Trust
Estate or (z) otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date upon which
Certificateholders shall surrender their Certificates to the Certificate Paying Agent for
payment of the final distribution and cancellation, shall be given by the Certificate Paying
Agent by letter to Certificateholders and the Credit Enhancer mailed within five Business
Days of receipt of notice of such termination from the Owner Trustee, stating (i) the
Payment Date upon or with respect to which final payment of the Certificates shall be made
upon presentation and surrender of the Certificates at the office of the Certificate Paying
Agent therein designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Payment Date is not applicable, payments being made
only upon presentation and surrender of the Certificates at the office of the Certificate
Paying Agent therein specified. The Certificate Paying Agent shall give such notice to the
Owner Trustee and the Certificate Registrar at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the Certificate
Paying Agent shall cause to be distributed to Certificateholders amounts distributable on
such Payment Date pursuant to Section 5.01. No such termination is permitted if it would
result in a draw on either Policy unless the Credit Enhancer consents in writing.
In the event that all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the above
mentioned written notice, the Certificate Paying Agent shall give a second written notice to
the remaining Certificateholders to surrender their Certificates for cancellation and
receive the final distribution with respect thereto. Subject to applicable laws with
respect to escheat of funds, if within one year following the Payment Date on which final
payment of the Certificates was to have been made pursuant to Section 3.10, all the
Certificates shall not have been surrendered for cancellation, the Certificate Paying Agent
may take appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain subject to this
Trust Agreement. Any funds remaining in the Certificate Distribution Account after
exhaustion of such remedies shall be distributed by the Certificate Paying Agent to the
holder of the majority of the Certificate Percentage Interest of the Certificates.
(d) Upon the winding up of the Trust and its termination, the Owner Trustee shall
cause the Certificate of Trust to be cancelled by filing a certificate of cancellation with
the Secretary of State in accordance with the provisions of Section 3810(c) of the Statutory
Trust Statute.
Section 8.02. Additional Termination Requirements.
(a) REMIC I shall be terminated in accordance with the following additional requirements
including upon the exercise by the Master Servicer of an optional redemption of the Notes
pursuant to Section 8.08 of the Servicing Agreement, unless the Owner Trustee, the Credit
Enhancer and the Master Servicer have received an Opinion of Counsel (which Opinion of
Counsel shall not be an expense of the Owner Trustee or the Credit Enhancer) to the effect
that the failure of any REMIC to comply with the requirements of this Section 8.02 will not
(i) result in the imposition on the Trust Estate of taxes on "prohibited transactions," as
described in Section 860F of the Code, or (ii) cause either REMIC to fail to qualify as a
REMIC at any time that any Certificate is outstanding:
(i) The Master Servicer shall establish a 90-day liquidation period for such REMIC and
specify the first day of such period in a statement, which the Indenture Trustee shall
attach to REMIC I's final Tax Return pursuant to Treasury regulations Section 1.860F-1. The
Master Servicer also shall satisfy all of the requirements of a qualified liquidation for a
REMIC under Section 860F of the Code and regulations thereunder;
(ii) The Master Servicer shall notify the Owner Trustee and the Indenture Trustee at the
commencement of such 90-day liquidation period and, at or prior to the time of making of the
final payment on the Certificates, the Owner Trustee shall sell or otherwise dispose of all
of the remaining assets of the Trust Estate that are included in REMIC I in accordance with
the terms hereof; and
(iii) If the Master Servicer is exercising its right to purchase the assets of the Trust
Estate, the Master Servicer shall, during the 90-day liquidation period and at or prior to
the Final Payment Date, purchase all of the assets of the Trust Estate for cash.
Each Holder of a Security and the Owner Trustee hereby irrevocably approves and
appoints the Master Servicer as its attorney-in-fact to adopt a plan of complete liquidation
for such REMIC at the expense of the Trust Estate in accordance with the terms and
conditions of this Agreement.
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner Trustee shall at
all times be a corporation satisfying the provisions of Section 3807(a) of the Statutory
Trust Statute; authorized to exercise corporate trust powers; having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by federal or
state authorities; and having (or having a parent that has) long-term debt obligations with
a rating of at least A by Standard & Poor's, Moody's and/or Fitch Ratings. If such
corporation shall publish reports of condition at least annually pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the purpose of
this Section, the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of this Section 9.01, the Owner Trustee shall resign immediately in the
manner and with the effect specified in Section 9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at any time resign
and be discharged from the trusts hereby created by giving 30 days' prior written notice
thereof to the Credit Enhancer, the Indenture Trustee and the Depositor. Upon receiving
such notice of resignation, the Indenture Trustee shall promptly appoint a successor Owner
Trustee with the consent of the Credit Enhancer which will not be unreasonably withheld, by
written instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner
Trustee shall have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may petition any court of
competent jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 9.01 and shall fail to resign after written request therefor by the
Indenture Trustee, or if at any time the Owner Trustee shall be legally unable to act, or
shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of its
property shall be appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Indenture Trustee may and shall at the direction of the Credit
Enhancer remove the Owner Trustee. If the Indenture Trustee shall remove the Owner Trustee
under the authority of the immediately preceding sentence, the Indenture Trustee shall
promptly appoint a successor Owner Trustee acceptable to the Credit Enhancer by written
instrument, in duplicate, one copy of which instrument shall be delivered to the outgoing
Owner Trustee so removed and one copy to the successor Owner Trustee, and shall pay all fees
owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a successor Owner
Trustee pursuant to any of the provisions of this Section shall not become effective until
acceptance of appointment by the successor Owner Trustee pursuant to Section 9.03 and
payment of all fees and expenses owed to the outgoing Owner Trustee.
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee appointed
pursuant to Section 9.02 shall execute, acknowledge and deliver to the Indenture Trustee and
to its predecessor Owner Trustee an instrument accepting such appointment under this Trust
Agreement, and thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective, and such successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and obligations of
its predecessor under this Trust Agreement, with like effect as if originally named as Owner
Trustee. The predecessor Owner Trustee shall upon payment of its fees and expenses deliver
to the successor Owner Trustee all documents and statements and monies held by it under this
Trust Agreement; and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
No successor Owner Trustee shall accept appointment as provided in this Section 9.03
unless at the time of such acceptance such successor Owner Trustee shall be eligible
pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to this Section
9.03, the Indenture Trustee shall mail notice thereof to all Certificateholders, the Credit
Enhancer, the Noteholders and the Rating Agencies. If the Indenture Trustee shall fail to
mail such notice within 10 days after acceptance of such appointment by the successor Owner
Trustee, the successor Owner Trustee shall cause such notice to be mailed at the expense of
the Indenture Trustee.
Section 9.04. Merger or Consolidation of Owner Trustee. Any Person into which the
Owner Trustee may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Owner Trustee shall be a
party, or any Person succeeding to all or substantially all of the corporate trust business
of the Owner Trustee, shall be the successor of the Owner Trustee hereunder, without the
execution or filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, that such Person shall be
eligible pursuant to Section 9.01 and, provided, further, that the Owner Trustee shall mail
notice of such merger or consolidation to the Rating Agencies and the Credit Enhancer.
Section 9.05. Appointment of Co-Trustee or Separate Trustee. Notwithstanding any
other provisions of this Trust Agreement, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Owner Trust Estate may at the time
be located, the Owner Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons to act as co-trustee, jointly with the Owner
Trustee, or as separate trustee or trustees, of all or any part of the Owner Trust Estate,
and to vest in such Person, in such capacity, such title to the Trust or any part thereof
and, subject to the other provisions of this Section, such powers, duties, obligations,
rights and trusts as the Owner Trustee may consider necessary or desirable. No co-trustee
or separate trustee under this Trust Agreement shall be required to meet the terms of
eligibility pursuant to Section 9.01 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee and such
separate trustee or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Owner Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner Trustee;
(b) No trustee under this Trust Agreement shall be personally liable by reason of
any act or omission of any other trustee under this Trust Agreement; and
(c) The Owner Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be deemed to
have been given to each of the then separate trustees and co-trustees, as effectively as if
given to each of them. Every instrument appointing any separate trustee or co-trustee shall
refer to this Trust Agreement and the conditions of this Article IX. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the provisions of
this Trust Agreement, specifically including every provision of this Trust Agreement
relating to the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner Trustee as its
agent or attorney-in-fact with full power and authority, to the extent not prohibited by
law, to do any lawful act under or in respect of this Trust Agreement on its behalf and in
its name. If any separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE X
Miscellaneous
Section 10.01.Amendments. (a) This Trust Agreement may be amended from time to time
by the parties hereto as specified in this Section 10.01, with the prior written consent of
the Credit Enhancer, provided that any amendment, except as provided in subparagraph (e)
below, be accompanied by an Opinion of Counsel, to the Owner Trustee and the Credit Enhancer
to the effect that such amendment (i) complies with the provisions of this Section and (ii)
will not cause the Trust to be subject to an entity level tax or cause any of REMIC I or
REMIC II to fail to qualify as a REMIC for federal income tax purposes.
(b) If the purpose of the amendment (as detailed therein) is to correct any
mistake, eliminate any inconsistency, cure any ambiguity or deal with any matter not covered
in this Trust Agreement (i.e., to give effect to the intent of the parties), it shall not be
necessary to obtain the consent of any Holders, but the Owner Trustee and the Credit
Enhancer shall be furnished with (A) a letter from the Rating Agencies that the amendment
will not result in the downgrading or withdrawal of the rating then assigned to any Security
if determined without regard to the Policies and (B) an Opinion of Counsel to the effect
that such action will not adversely affect in any material respect the interests of any
Holders or the Credit Enhancer, and the consent of the Credit Enhancer shall be obtained.
(c) If the purpose of the amendment is to prevent the imposition of any federal or
state taxes at any time that any Security is outstanding (i.e., technical in nature), it
shall not be necessary to obtain the consent of any Holder, but the Owner Trustee and the
Credit Enhancer shall be furnished with an Opinion of Counsel that such amendment is
necessary or helpful to prevent the imposition of such taxes and is not materially adverse
to any Holder or the Credit Enhancer and the consent of the Credit Enhancer shall be
obtained.
(d) If the purpose of the amendment is to add or eliminate or change any provision
of the Trust Agreement other than as contemplated in (b) and (c) above, the amendment shall
require (A) the consent of the Credit Enhancer and an Opinion of Counsel to the effect that
such action will not adversely affect in any material respect the interests of any Holders
or the Credit Enhancer and (B) either (a) a letter from the Rating Agency that the amendment
will not result in the downgrading or withdrawal of the rating then assigned to any Security
if determined without regard to the Policies or (b) the consent of Holders of Certificates
evidencing a majority of the Certificate Percentage Interest of the Certificates and the
Indenture Trustee; provided, however, that no such amendment shall (i) reduce in any manner
the amount of, or delay the timing of, payments received that are required to be distributed
on any Certificate without the consent of the related Certificateholder and the Credit
Enhancer, or (ii) reduce the aforesaid percentage of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders of all such
Certificates then outstanding.
(e) If the purpose of the amendment is to provide for the holding of any of the
Certificates in book-entry form, it shall require the consent of Holders of all such
Certificates then outstanding; provided, that the Opinion of Counsel specified in
subparagraph (a) above shall not be required.
(f) If the purpose of the amendment is to provide for the issuance of additional
certificates representing an interest in the Trust, it shall not be necessary to obtain the
consent of any Holder, but the Owner Trustee and the Credit Enhancer shall be furnished with
(A) an Opinion of Counsel to the effect that such action will not adversely affect in any
material respect the interests of any Holders or the Credit Enhancer and (B) a letter from
the Rating Agencies that the amendment will not result in the downgrading or withdrawal of
the rating then assigned to any Security, if determined without regard to the Policies and
the consent of the Credit Enhancer shall be obtained.
(g) Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or consent to
each Certificateholder, the Indenture Trustee, the Credit Enhancer and each of the Rating
Agencies. It shall not be necessary for the consent of Certificateholders or the Indenture
Trustee pursuant to this Section 10.01 to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of
Certificateholders provided for in this Trust Agreement or in any other Basic Document) and
of evidencing the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any agreement to which
the Trust is a party, other than this Trust Agreement, the Owner Trustee shall be entitled
to receive and conclusively rely upon an Opinion of Counsel to the effect that such
amendment is authorized or permitted by the documents subject to such amendment and that all
conditions precedent in the Basic Documents for the execution and delivery thereof by the
Trust or the Owner Trustee, as the case may be, have been satisfied.
Promptly after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of State of the State of
Delaware.
Section 00.00.Xx Legal Title to Owner Trust Estate. The Certificateholders shall not
have legal title to any part of the Owner Trust Estate. The Certificateholders shall be
entitled to receive distributions with respect to their undivided beneficial interest
therein only in accordance with Articles V and VIII. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders to and in their
ownership interest in the Owner Trust Estate shall operate to terminate this Trust Agreement
or the trusts hereunder or entitle any transferee to an accounting or to the transfer to it
of legal title to any part of the Owner Trust Estate
Section 10.03.Limitations on Rights of Others. Except for Section 2.07, the
provisions of this Trust Agreement are solely for the benefit of the Owner Trustee, the
Depositor, the Certificateholders, the Credit Enhancer and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders, and nothing in this Trust Agreement
(other than Section 2.07), whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Owner Trust Estate or
under or in respect of this Trust Agreement or any covenants, conditions or provisions
contained herein.
Section 10.04.Notices. (a) Unless otherwise expressly specified or permitted by the
terms hereof, all notices shall be in writing and shall be deemed given upon receipt, if to
the Owner Trustee, addressed to Wilmington Trust Company, Corporate Trust Administration,
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration; if to the Depositor, addressed to Residential Funding
Mortgage Securities II, Inc., 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxx 00000; if to the Credit Enhancer, addressed to MBIA Insurance Corporation, 000
Xxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000, Attention: Insured Portfolio Management - Structured
Finance (RFMSII 2007-HSA3); if to the Rating Agencies, addressed to Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 Attention: Structured Finance Department - MBS, to Xxxxx'x Investors Service,
Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Fitch Ratings, Xxx Xxxxx
Xxxxxx Xxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000; or, as to each party, at such other
address as shall be designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a Certificateholder shall be
given by first-class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this Trust
Agreement shall be conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
(c) A copy of any notice delivered to the Owner Trustee or the Trust shall also be
delivered to the Depositor.
Section 10.05.Severability. Any provision of this Trust Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 10.06.Separate Counterparts. This Trust Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together constitute but one and the same
instrument.
Section 10.07.Successors and Assigns. All representations, warranties, covenants and
agreements contained herein shall be binding upon, and inure to the benefit of, each of the
Depositor, the Owner Trustee and its successors and each Certificateholder and its
successors and permitted assigns, all as herein provided and the Credit Enhancer. Any
request, notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such Certificateholder.
Section 00.00.Xx Petition. The Owner Trustee, by entering into this Trust Agreement
and each Certificateholder, by accepting a Certificate, hereby covenant and agree that they
will not at any time institute against the Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy proceedings under any
United States federal or state bankruptcy or similar law in connection with any obligations
to the Certificates, the Notes, this Trust Agreement or any of the Basic Documents.
Section 00.00.Xx Recourse. Each Certificateholder by accepting a Certificate
acknowledges that such Certificateholder's Certificates represent beneficial interests in
the Trust only and do not represent interests in or obligations of the Depositor, the
Seller, the Owner Trustee, the Indenture Trustee or any Affiliate thereof and no recourse
may be had against such parties or their assets, except as may be expressly set forth or
contemplated in this Trust Agreement, the Certificates or the Basic Documents.
Section 10.10.Headings. The headings of the various Articles and Sections herein are
for convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
Section 10.11.GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 10.12.Integration. This Trust Agreement constitutes the entire agreement
among the parties hereto pertaining to the subject matter hereof and supersedes all prior
agreements and understanding pertaining thereto.
Section 10.13.Rights of Credit Enhancer. (a) By accepting its Class SB Certificate
and Class R Certificate, each Class SB Certificateholder and each Class R
Certificateholder, respectively, agrees that unless a Credit Enhancer Default exists, the
Credit Enhancer shall have the right to exercise the voting rights of the Class SB
Certificateholders and Class R Certificateholders under this Agreement without any further
consent of the Class SB Certificateholders and Class R Certificateholders. Nothing in this
Section, however, shall alter or modify in any way, the fiduciary obligations of the Owner
Trustee to the Class SB Certificateholders or the Class R Certificateholders pursuant to
this Agreement, or create any fiduciary obligation of the Owner Trustee to the Credit
Enhancer. The Credit Enhancer is an express third-party beneficiary to this Agreement.
(b) From and after the date on which the Notes are no longer outstanding under the
Indenture and no amounts are owed to the Credit Enhancer pursuant to the terms of the
Insurance Agreement, including but not limited to, amounts owed to the Credit Enhancer in
respect of draws made on the Policies and for unpaid premiums, the Credit Enhancer shall
have no rights or benefits hereunder and all references to the Credit Enhancer in this
Trust Agreement shall be disregarded.
ARTICLE XI
COMPLIANCE WITH REGULATION AB
Section 11.01.Intent of the Parties; Reasonableness . The Depositor and Wilmington
acknowledge and agree that the purpose of this Article XI is to facilitate compliance by the
Depositor with the provisions of Regulation AB and related rules and regulations of the
Commission. The Depositor shall not exercise its right to request delivery of information
or other performance under these provisions other than in good faith, or for purposes other
than compliance with the Securities Act, the Exchange Act and the rules and regulations of
the Commission under the Securities Act and the Exchange Act. Wilmington acknowledges that
interpretations of the requirements of Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff, consensus among participants
in the mortgage-backed securities markets, advice of counsel, or otherwise, and agrees to
comply with reasonable requests made by the Depositor in good faith for delivery of
information under these provisions on the basis of evolving interpretations of Regulation
AB. Wilmington shall cooperate in good faith with any reasonable request by the Depositor
for information regarding Wilmington that is necessary or required, in the reasonable, good
faith determination of the Depositor, to permit the Depositor to comply with the provisions
of Regulation AB.
Section 11.02.Additional Representations and Warranties of Wilmington.
(a) Wilmington shall be deemed to represent and warrant to the Depositor as of the
date hereof and on each date on which information is provided to the Depositor under
Sections 11.01, 11.02(b) or 11.03 that, except as disclosed in writing to the Depositor prior
to such date: (i) it is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any other
Securitization Transaction due to any default of Wilmington; (ii) there are no aspects of
its financial condition that could have a material adverse effect on the performance by it
of its trustee obligations under the Trust Agreement or any other Securitization Transaction
as to which it is the trustee; (iii) there are no material legal or governmental proceedings
pending (or known to be contemplated) against it that would be material to Noteholders; (iv)
there are no relationships or transactions (as described in Item 1119(b) of Regulation AB)
relating to Wilmington with respect to the Depositor or any sponsor, issuing entity,
servicer, trustee, originator, significant obligor, enhancement or support provider or other
material transaction party (as each of such terms are used in Regulation AB) relating to the
Securitization Transaction contemplated by the Trust Agreement, as identified by the
Depositor to Wilmington in writing as of the Closing Date (each, a "Transaction Party") that
are outside the ordinary course of business or on terms other than would be obtained in an
arm's length transaction with an unrelated third party, apart from the Securitization
Transaction, and that are material to the investors' understanding of the Certificates; and
(v) Wilmington is not an affiliate (as contemplated by Item 1119(a) of Regulation AB) of any
Transaction Party. The Depositor shall notify Wilmington of any change in the identity of a
Transaction Party after the Closing Date at least five (5) Business Days prior to January 31
of each calendar year.
(b) If so requested by the Depositor on any date following the Closing Date,
Wilmington shall, within five Business Days following such request, confirm in writing the
accuracy of the representations and warranties set forth in paragraph (a) of this Section
or, if any such representation and warranty is not accurate as of the date of such
confirmation, provide the pertinent facts, in writing, to the Depositor. Any such request
from the Depositor shall not be given more than once each calendar quarter, unless the
Depositor shall have a reasonable basis for questioning the accuracy of any of the
representations and warranties.
Section 11.03.Information to Be Provided by Wilmington.
(a) For so long as the Notes are outstanding, for the purpose of satisfying the
Depositor's reporting obligation under the Exchange Act with respect to any class of Notes,
Wilmington shall provide to the Depositor a written description of (i) the commencement of,
a material development in or, if applicable, the termination of, any and all legal
proceedings against Wilmington or any and all proceedings of which any property of
Wilmington is the subject, that would be material to Noteholders; and (ii) any such
proceedings known to be contemplated by governmental authorities that would be material to
Noteholders. Wilmington shall also notify the Depositor, in writing, as promptly as
practicable following notice to or discovery by a Responsible Officer of Wilmington of any
material changes to proceedings described in the preceding sentence. In addition,
Wilmington will furnish to the Depositor, in writing, the necessary disclosure regarding
Wilmington describing such proceedings required to be disclosed under Item 1117 of
Regulation AB, for inclusion in reports filed by or on behalf of the Depositor pursuant to
the Exchange Act. The Depositor will allow Wilmington to review any disclosure relating to
material litigation against Wilmington prior to filing such disclosure with the Commission
to the extent the Depositor changes the information provided by Wilmington. Any
descriptions required with respect to legal proceedings, as well as updates to previously
provided descriptions, under this Section 11.03(a) shall be given no later than five
Business Days prior to the Determination Date following the month in which the relevant
event occurs.
(b) For so long as the Notes are outstanding, for the purpose of satisfying the
Depositor's reporting obligation under the Exchange Act with respect to any class of Notes,
Wilmington shall, no later than January 31 of each calendar year, (i) provide to the
Depositor such information regarding Wilmington as is required for the purpose of compliance
with Item 1119 of Regulation AB; provided, however, Wilmington shall not be required to
provide such information in the event that there has been no change to the information
previously provided by Wilmington to the Depositor; and (ii) as promptly as practicable
following notice to or discovery by a Responsible Officer of Wilmington of any changes to
such information, provide to the Depositor, in writing, such updated information. Such
information shall include, at a minimum, a description of any affiliation between Wilmington
and any of the following parties to the Securitization Transaction contemplated by the Trust
Agreement, as such parties and their affiliates are identified to Wilmington by the
Depositor in connection with the closing of each Securitization Transaction or, if there has
been a change in any such party, as such party is identified by the Depositor in a written
notice to Wilmington at least five (5) Business Days prior to January 31 of each calendar
year:
(1) the sponsor;
(2) any depositor;
(3) the issuing entity;
(4) any servicer;
(5) any other trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material party related to any Securitization Transaction.
In addition, Wilmington shall provide a description of whether there is, and if so
the general character of, any business relationship, agreement, arrangement, transaction or
understanding between Wilmington and any above-listed party that is entered into outside the
ordinary course of business or is on terms other than would be obtained in an arm's length
transaction with an unrelated third party, apart from the Securitization Transaction
contemplated by the Trust Agreement, that currently exists or that existed during the past
two years and that is material to an investor's understanding of the Notes.
(c) As of the related Payment Date with respect to each Report on Form 10-D with
respect to the Notes filed by or on behalf of the Depositor, and as of March 15 preceding
the date each Report on Form 10-K with respect to the Notes is filed, Wilmington shall be
deemed to represent and warrant that any information previously provided by Wilmington under
this Article XI is materially correct and does not have any material omissions unless
Wilmington has provided an update to such information.
Section 11.04.Indemnification; Remedies.
(a) Wilmington shall indemnify the Depositor, each affiliate of the Depositor,
Residential Funding and each affiliate of Residential Funding, and the respective present
and former directors, officers, employees and agents of each of the foregoing, and shall
hold each of them harmless from and against any claims, losses, liabilities (including
penalties), actions, suits, judgments, demands, damages, costs and expenses (including
reasonable fees and expenses of attorneys or, as necessary, consultants and auditors and
reasonable costs of investigations) that any of them may sustain arising out of or based
upon:
(i)(A) any untrue statement of a material fact contained or
alleged to be contained in any information, report, certification or other material provided
under Sections 11.01, 11.02 or 11.03 of this Article XI by or on behalf of Wilmington
(collectively, the "Wilmington Information"), or (B) the omission or alleged omission to
state in Wilmington Information a material fact required to be stated in Wilmington
Information or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or
(ii) any failure by Wilmington to deliver any information,
report, certification or other material when and as required under Sections 11.02 and 11.03.
(b) In the case of any failure of performance described in clause (ii) of Section
11.04(a), Wilmington shall (i) promptly reimburse the Depositor for all costs reasonably
incurred by the Depositor in order to obtain the information, report, certification or other
material not delivered by Wilmington as required and (ii) cooperate with the Depositor to
mitigate any damages that may result from such failure.
(c) The Depositor and Residential Funding shall indemnify Wilmington, each
affiliate of Wilmington and the respective present and former directors, officers, employees
and agents of Wilmington, and shall hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain arising out
of or based upon (i) any untrue statement of a material fact contained or alleged to be
contained in any information provided by or on behalf of the Depositor or Residential
Funding for inclusion in any report filed with Commission under the Exchange Act
(collectively, the "RFC Information"), or (ii) the omission or alleged omission to state in
the RFC Information a material fact required to be stated in the RFC Information or
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) Notwithstanding any provision in this Section 11.04 to the contrary, the
parties agree that none of Wilmington, the Depositor or Residential Funding shall be liable
to the other for any consequential or punitive damages whatsoever, whether in contract, tort
(including negligence and strict liability), or any other legal or equitable principle;
provided, however, that such limitation shall not be applicable with respect to third party
claims made against a party.
IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused their names to be
signed hereto by their respective officers thereunto duly authorized, all as of the day and
year first above written.
RESIDENTIAL FUNDING MORTGAGE
SECURITIES II, INC.
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title:
WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as
Owner Trustee, except with respect
to the representations and warranties
contained in Section 6.03 hereof,
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Sr Financial Services Officer
Acknowledged and Agreed:
LASALLE BANK NATIONAL ASSOCIATION
Indenture Trustee, as Certificate
Registrar and Certificate
Paying Agent
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
EXHIBIT A
FORM OF CLASS SB-I CERTIFICATE
THIS CLASS SB-I 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-I CERTIFICATE IS ISSUED IN THE CERTIFICATE PERCENTAGE INTEREST
SET FORTH BELOW; HOWEVER, THE CERTIFICATE 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CLASS SB-I CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE").
THIS CLASS SB-I 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-I CERTIFICATE SHALL BE MADE UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE
TRANSFEREE OF THIS CLASS SB-I 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-I CERTIFICATE, OF ANY SUCH PLAN (EACH, A "PLAN
INVESTOR") OR (II) IF THIS CLASS SB-I CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME
OF A PLAN INVESTOR, AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CLASS SB-I CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN
A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR
COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) AND WILL NOT SUBJECT THE DEPOSITOR, THE
OWNER TRUSTEE, THE MASTER SERVICER OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR
LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THE TRANSFEREE OF THIS CLASS SB-I 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-I 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:
May 1, 2007
Date of Trust Agreement:
May 29, 2007
First Payment Date: Certificate Percentage Interest of
June 25, 2007 this Certificate: 100%
Assumed Final Payment Date:
June 25, 2037
HOME EQUITY LOAN-BACKED CERTIFICATE
SERIES 2007-HSA3
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-I Certificate is payable solely from the assets of the Owner
Trust Estate, and does not represent an obligation of or interest in the Depositor, the
Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee or GMAC Mortgage
Group, LLC or any of their affiliates. This Class SB-I Certificate is not guaranteed or
insured by any governmental agency or instrumentality or by the Depositor, the Seller, the
Master Servicer, the Indenture Trustee, the Owner Trustee or GMAC Mortgage Group, LLC or any
of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture
Trustee, the Owner Trustee, GMAC Mortgage Group, LLC or any of their affiliates will have
any obligation with respect to any certificate or other obligation secured by or payable
from payments on the Certificates.
This certifies that Pramwave & Co. is the registered owner of the Certificate
Percentage Interest evidenced by this Class SB-I 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-I
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-I 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-I 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-I 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-I 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-I Certificate or the making of any notation
hereon. Pursuant to the Agreement, the Trust has issued four Classes of Certificates,
designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I
Certificates and the Class R-II Certificates.
Except as otherwise provided in the Agreement and notwithstanding the above,
the final distribution on this Class SB-I 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-I 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-I 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-I Certificate will be made unless such transfer
is exempt from the registration requirements of the Securities Act of 1933, as amended, and
any applicable state securities laws or is made in accordance with said Act and laws. In
the event that such a transfer is to be made, (i) the Certificate Registrar or the Depositor
may require an opinion of counsel acceptable to and in form and substance satisfactory to
the Certificate Registrar and the Depositor that such transfer is exempt (describing the
applicable exemption and the basis therefor) from or is being made pursuant to the
registration requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment letter in the form
described in the Agreement and (iii) the Certificate Registrar shall require the transferee
to execute an investment letter and a Certificate of Non-Foreign Status in the form
described by the Agreement (or if a Certificate of Non-Foreign Status is not provided, an
Opinion of Counsel as described in the Agreement), which investment letter and certificate
or Opinion of Counsel shall not be at the expense of the Trust, the Owner Trustee, the
Certificate Registrar or the Depositor. The Holder hereof desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Depositor, the
Master Servicer and the Certificate Registrar against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and state laws. In
connection with any such transfer, the Certificate Registrar (unless otherwise directed by
the Depositor) will also require either (i) a representation letter, in the form as
described by the Agreement, stating that the transferee is not an employee benefit or other
plan subject to the prohibited transaction restrictions or the fiduciary responsibility
requirements of ERISA or Section 4975 of the Code, any person acting, directly or
indirectly, on behalf of any such plan or any Person using the "plan assets," within the
meaning of the Department of Labor regulations at 29 C.F.R.ss.2510.3-101, of any such plan to
effect such acquisition (each, a "Plan Investor") or (ii) if this Class SB-I Certificate is
presented for registration in the name of a Plan Investor, an opinion of counsel to the
effect that the purchase or holding of this Class SB-I Certificate is permissible under
applicable law, will not constitute or result in a prohibited transaction under Section 406
of ERISA or Section 4975 of the Code (or comparable provisions of any subsequent enactments)
and will not subject the Depositor, the Owner Trustee, the Master Servicer or the
Certificate Registrar to any obligation or liability in addition to those undertaken in the
Agreement.
This Class SB-I 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-I 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-I 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-I 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-I Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Class SB-I Certificate are subordinated
to the rights of the Noteholders as described in the Indenture., dated as of May 30, 2007,
between Home Equity Loan Trust 2007-HSA3 (the "Trust") and LaSalle Bank National
Association, as Indenture Trustee (the "Indenture").
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not at any time institute against the Depositor or
the Trust, or join in any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, the Agreement or any of the Basic
Documents.
The Agreement permits the amendment thereof as specified below, provided that
any amendment be accompanied by the consent of the Credit Enhancer and an Opinion of Counsel
to the Owner Trustee to the effect that such amendment complies with the provisions of the
Agreement and will not cause the Trust to be subject to an entity level tax. If the purpose
of the amendment is to correct any mistake, eliminate any inconsistency, cure any ambiguity
or deal with any matter not covered, it shall not be necessary to obtain the consent of any
Holder, but the Owner Trustee and the Credit Enhancer shall be furnished with a letter from
the Rating Agencies that the amendment will not result in the downgrading or withdrawal of
the rating then assigned to any Security if determined without regard to the Policy and the
consent of the Credit Enhancer shall be obtained. If the purpose of the amendment is to
prevent the imposition of any federal or state taxes at any time that any Security is
outstanding, it shall not be necessary to obtain the consent of any Holder, but the Owner
Trustee and the Credit Enhancer shall be furnished with an Opinion of Counsel that such
amendment is necessary or helpful to prevent the imposition of such taxes and is not
materially adverse to any Holder or the Credit Enhancer and the consent of the Credit
Enhancer shall be obtained. If the purpose of the amendment is to add or eliminate or
change any provision of the Agreement, other than as specified in the preceding two
sentences, the amendment shall require either (a) a letter from the Rating Agencies that the
amendment will not result in the downgrading or withdrawal of the rating then assigned to
any Security, if determined without regard to the Policy or (b) the consent of Holders of a
majority of the Certificate Percentage Interests of the Certificates and the Indenture
Trustee; provided, however, that no such amendment shall (i) reduce in any manner the amount
of, or delay the time of, payments received that are required to be distributed on any
Certificate without the consent of the related Certificateholder and the Credit Enhancer, or
(ii) reduce the aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment without the consent of the Holders of all such Certificates
then outstanding.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Class SB-I Certificate is registerable in the Certificate
Register upon surrender of this Class SB-I 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-I Certificate is issued in the Certificate Percentage
Interest above; however, the Certificate Percentage Interest of this Class SB-I 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.
No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar and
any agent of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar
may treat the Person in whose name this Class SB-I Certificate is registered as the owner
hereof for all purposes, and none of the Owner Trustee, the Certificate Paying Agent, the
Certificate Registrar or any such agent shall be affected by any notice to the contrary.
This Class SB-I Certificate shall be governed by and construed in accordance
with the laws of the State of Delaware.
The obligations created by the Agreement in respect of the Certificates and
the Trust created thereby shall terminate upon the earliest of (i) the final distribution of
all moneys or other property or proceeds of the Owner Trust Estate in accordance with the
terms of the Indenture and the Agreement or (ii) the purchase by the Master Servicer of all
Home Equity Loans pursuant to Section 8.08 of the Servicing Agreement.
Unless the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual signature,
this Class SB-I Certificate shall not be entitled to any benefit under the Agreement or be
valid for any purpose.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Class SB-I Certificate to be duly executed.
HOME EQUITY LOAN TRUST 2007-HSA3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
Dated: May 30, 2007 By: ____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ______________________________
Authorized Signatory
or LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely,
as Authenticating Agent of the Trust
Dated: May 30, 2007
By: ______________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE___________________________________
_____________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
____________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably constituting and
appointing
______________________________________________________________________________to transfer
said Certificate on the books of the Certificate Registrar, with full power of substitution
in the premises.
Dated:
_____________________________________*/
Signature Guaranteed:
____________________________*/
_________________
*/ NOTICE: The signature to this assignment must correspond with the name as it appears
upon the face of the within Certificate in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the Certificate
Paying Agent:
Distribution shall be made by wire transfer in immediately available funds to
__________________________________________________________________________________________
for the account of _______________________________________________________, account number
______________, or, if mailed by check, to ______________.
Applicable statements should be mailed to __________________.
______________________________
Signature of assignee or agent
(for authorization of wire transfer only)
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, OF ANY SUCH PLAN (EACH, A "PLAN
INVESTOR") OR (II) IF THIS CLASS SB-II CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME
OF A PLAN INVESTOR, AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CLASS SB-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.
NO TRANSFER OF THIS CLASS SB-II CERTIFICATE SHALL BE MADE UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH
TRANSFER OR THE REGISTRATION OF SUCH TRANSFER WILL NOT CAUSE THE TRUST TO BE CLASSIFIED AS A
PUBLICLY TRADED PARTNERSHIP, AN ASSOCIATION TAXABLE AS A CORPORATION OR A TAXABLE MORTGAGE
POOL FOR FEDERAL AND RELEVANT STATE INCOME TAX PURPOSES.
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:
May 1, 2007
Date of Trust Agreement:
May 29, 2007
First Payment Date: Certificate Percentage Interest of
June 25, 2007 this Certificate: 100%
Assumed Final Payment Date:
May 25, 2037
HOME EQUITY LOAN-BACKED CERTIFICATE
SERIES 2007-HSA3
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, LLC 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, LLC or any
of their affiliates. None of the Depositor, the Seller, the Master Servicer, the Indenture
Trustee, the Owner Trustee, GMAC Mortgage Group, LLC or any of their affiliates will have
any obligation with respect to any certificate or other obligation secured by or payable
from payments on the Certificates.
This certifies that Pramwave & Co. is the registered owner of the Certificate
Percentage Interest evidenced by this Class SB-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 four Classes of Certificates,
designated as the Class SB-I Certificates, the Class SB-II Certificates, the Class R-I
Certificates and the Class R-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, any person acting, directly or
indirectly, on behalf of any such plan or any Person using the "plan assets," within the
meaning of the Department of Labor regulations at 29 C.F.R.ss.2510.3-101, of any such plan to
effect such acquisition (each, a "Plan Investor") or (ii) if this Class SB-II Certificate is
presented for registration in the name of a Plan Investor, an opinion of counsel to the
effect that the purchase or holding of this Class SB-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.
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 May 30, 2007,
between Home Equity Loan Trust 2007-HSA3 (the "Trust") and LaSalle Bank National
Association, as Indenture Trustee (the "Indenture").
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not at any time institute against the Depositor or
the Trust, or join in any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, the Agreement or any of the Basic
Documents.
The Agreement permits the amendment thereof as specified below, provided that
any amendment be accompanied by the consent of the Credit Enhancer and an Opinion of Counsel
to the Owner Trustee to the effect that such amendment complies with the provisions of the
Agreement and will not cause the Trust to be subject to an entity level tax. If the purpose
of the amendment is to correct any mistake, eliminate any inconsistency, cure any ambiguity
or deal with any matter not covered, it shall not be necessary to obtain the consent of any
Holder, but the Owner Trustee and the Credit Enhancer shall be furnished with a letter from
the Rating Agencies that the amendment will not result in the downgrading or withdrawal of
the rating then assigned to any Security if determined without regard to the Policy and the
consent of the Credit Enhancer shall be obtained. If the purpose of the amendment is to
prevent the imposition of any federal or state taxes at any time that any Security is
outstanding, it shall not be necessary to obtain the consent of any Holder, but the Owner
Trustee and the Credit Enhancer shall be furnished with an Opinion of Counsel that such
amendment is necessary or helpful to prevent the imposition of such taxes and is not
materially adverse to any Holder or the Credit Enhancer and the consent of the Credit
Enhancer shall be obtained. If the purpose of the amendment is to add or eliminate or
change any provision of the Agreement, other than as specified in the preceding two
sentences, the amendment shall require either (a) a letter from the Rating Agencies that the
amendment will not result in the downgrading or withdrawal of the rating then assigned to
any Security, if determined without regard to the Policy or (b) the consent of Holders of a
majority of the Certificate Percentage Interests of the Certificates and the Indenture
Trustee; provided, however, that no such amendment shall (i) reduce in any manner the amount
of, or delay the time of, payments received that are required to be distributed on any
Certificate without the consent of the related Certificateholder and the Credit Enhancer, or
(ii) reduce the aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment without the consent of the Holders of all such Certificates
then outstanding.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Class SB-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 3.12 of the Agreement. The Holder of this Class SB-II
Certificate hereby consents to any change in its Certificate Percentage Interest in
accordance with such Section.
No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar and
any agent of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar
may treat the Person in whose name this Class SB-II Certificate is registered as the owner
hereof for all purposes, and none of the Owner Trustee, the Certificate Paying Agent, the
Certificate Registrar or any such agent shall be affected by any notice to the contrary.
This Class SB-II Certificate shall be governed by and construed in accordance
with the laws of the State of Delaware.
The obligations created by the Agreement in respect of the Certificates and
the Trust created thereby shall terminate upon the earliest of (i) the final distribution of
all moneys or other property or proceeds of the Owner Trust Estate in accordance with the
terms of the Indenture and the Agreement or (ii) the purchase by the Master Servicer of all
Home Equity Loans pursuant to Section 8.08 of the Servicing Agreement.
Unless the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual signature,
this Class SB-II Certificate shall not be entitled to any benefit under the Agreement or be
valid for any purpose.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Class SB-II Certificate to be duly executed.
HOME EQUITY LOAN TRUST 2007-HSA3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
Dated: May 30, 2007 By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ______________________________
Authorized Signatory
or LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely,
as Authenticating Agent of the Trust
Dated: May 30, 2007
By: ______________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE___________________________________
_____________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
____________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably constituting and
appointing
______________________________________________________________________________to transfer
said Certificate on the books of the Certificate Registrar, with full power of substitution
in the premises.
Dated:_____________________
_____________________________________*/
Signature Guaranteed:
____________________________*/
_________________
*/ NOTICE: The signature to this assignment must correspond with the name as it appears
upon the face of the within Certificate in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the Certificate
Paying Agent:
Distribution shall be made by wire transfer in immediately available funds to
______________________________________________________________________________________________
for the account of __________________________________________________________, account number
______________, or, if mailed by check, to ______________.
Applicable statements should be mailed to __________________.
______________________________
Signature of assignee or agent
(for authorization of wire transfer only)
EXHIBIT B
TO THE TRUST AGREEMENT
CERTIFICATE OF TRUST
OF
HOME EQUITY LOAN TRUST 2007-HSA3
THIS Certificate of Trust of Home Equity Loan Trust 2007-HSA3 (the "Trust") is being
duly executed and filed by Wilmington Trust company, a Delaware banking corporation, as
owner trustee, to form a statutory trust under the Delaware Statutory Trust Act (12 Del. C
ss.3801 et seq.).
1. Name: The name of the statutory trust formed hereby is Home Equity Loan Trust
2007-HSA3.
2. Delaware Trustee: The name and business address of the owner trustee of the
Trust in the State of Delaware is Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration.
3. Effective Date: This Certificate of Trust shall be effective upon filing with
the Secretary of State.
IN WITNESS WHEREOF, the undersigned, being the sole owner trustee of the
Trust, has executed this Certificate of Trust.
WILMINGTON TRUST COMPANY,
as owner trustee
By:
Name:
Title:
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
(the "Rule 144A Securities")
The undersigned seller, as registered holder (the "Seller"), intends to
transfer the Rule 144A Securities described above to the undersigned buyer (the "Buyer").
1. In connection with such transfer and in accordance with the agreements
pursuant to which the Rule 144A Securities were issued, the Seller hereby certifies the
following facts: Neither the Seller nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A Securities, any interest
in the Rule 144A Securities or any other similar security to, or solicited any offer to buy
or accept a transfer, pledge or other disposition of the Rule 144A Securities, any interest
in the Rule 144A Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken any other
action, that would constitute a distribution of the Rule 144A Securities under the
Securities Act of 1933, as amended (the "1933 Act"), or that would render the disposition of
the Rule 144A Securities a violation of Section 5 of the 1933 Act or require registration
pursuant thereto, and that the Seller has not offered the Rule 144A Securities to any person
other than the Buyer or another "qualified institutional buyer" as defined in Rule 144A
under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the Owner
Trustee and the Depositor (as defined in the Amended and Restated Trust Agreement (the
"Agreement")) dated as of May 30, 2007 between Residential Funding Mortgage Securities II,
Inc., as Depositor and Wilmington Trust Company, as Owner Trustee pursuant to Section 3.05
of the Agreement, and LaSalle Bank National Association, as indenture trustee, as follows:
a. The Buyer understands that the Rule 144A Securities have not been
registered under the 1933 Act or the securities laws of any state.
b. The Buyer considers itself a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of investment in the Rule 144A Securities.
c. The Buyer has been furnished with all information regarding the Rule 144A
Securities that it has requested from the Seller, the Indenture Trustee, the Owner Trustee
or the Master Servicer.
d. Neither the Buyer nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A Securities, any interest
in the Rule 144A Securities or any other similar security to, or solicited any offer to buy
or accept a transfer, pledge or other disposition of the Rule 144A Securities, any interest
in the Rule 144A Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken any other
action, that would constitute a distribution of the Rule 144A Securities under the 1933 Act
or that would render the disposition of the Rule 144A Securities a violation of Section 5 of
the 1933 Act or require registration pursuant thereto, nor will it act, nor has it
authorized or will it authorize any person to act, in such manner with respect to the Rule
144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term is defined in
Rule 144A under the 1933 Act and has completed either of the forms of certification to that
effect attached hereto as Annex 1 or Annex 2. The Buyer is aware that the sale to it is
being made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A Securities for
its own account or the accounts of other qualified institutional buyers, understands that
such Rule 144A Securities may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for its own account
or for the account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the 1933 Act.
3. [only applicable to the Class SB Certificates] [The Buyer represents that:
(i) either (a) or (b) is satisfied, as marked below:
a. The Buyer is not any employee benefit plan or other plan
subject to Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986, as amended (the "Code") (each, a "Plan"), a
Person acting, directly or indirectly, on behalf of a Plan or any Person acquiring such
Certificates with "plan assets" of a Plan within the meaning of the Department of Labor
regulation promulgated at 29 C.F.R.ss.2510.3-101; or
b. The Buyer has provided the Depositor, the Owner Trustee, the
Certificate Registrar and the Master Servicer with an opinion of counsel, satisfactory to
the Depositor, the Owner Trustee, the Certificate Registrar and the Master Servicer, to the
effect that the purchase and holding of a Certificate by or on behalf of the Buyer is
permissible under applicable law, will not constitute or result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code (or comparable provisions of any
subsequent enactments) and will not subject the Depositor, the Owner Trustee, the
Certificate Registrar or the Master Servicer to any obligation or liability (including
liabilities under ERISA or Section 4975 of the Code) in addition to those undertaken in the
Trust Agreement, which opinion of counsel shall not be an expense of the Depositor, the
Owner Trustee, the Certificate Registrar or the Master Servicer; and
(ii) the Buyer is familiar with the prohibited transaction restrictions and
fiduciary responsibility requirements of Sections 406 and 407 of ERISA and Section 4975 of
the Code and understands that each of the parties to which this certification is made is
relying and will continue to rely on the statements made in this paragraph 3.]
4. This document may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so executed, shall be
deemed to be an original; such counterparts, together, shall constitute one and the same
document.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in Appendix A to the indenture dated as of May 30, 2007, between
the Trust and the Indenture Trustee.
IN WITNESS WHEREOF, each of the parties has executed this document as of the
date set forth below.
Print Name of Seller Print Name of Buyer
By: By:
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. No.
Date: Date:
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities Act of 1933
("Rule 144A") because (i) the Buyer owned and/or invested on a discretionary basis
$______________________(1) in securities (except for the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Buyer satisfies the criteria in the category marked
below.
Corporation, etc. The Buyer is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business trust, partnership,
or charitable organization described in Section 501(c)(3) of the Internal Revenue Code.
Bank. The Buyer (a) is a national bank or banking institution organized under the laws of
any State, territory or the District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
Savings and Loan. The Buyer (a) is a savings and loan association, building and loan
association, cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision over any such
institutions or is a foreign savings and loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements.
_______________________
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or invest on a
discretionary basis at least $10,000,000 in securities
Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
Insurance Company. The Buyer is an insurance company whose primary and predominant business
activity is the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner or a similar
official or agency of a State or territory or the District of Columbia.
State or Local Plan. The Buyer is a plan established and maintained by a State, its
political subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
ERISA Plan. The Buyer is an employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974.
Investment Adviser. The Buyer is an investment adviser registered under the Investment
Advisers Act of 1940.
SBIC. The Buyer is a Small Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958.
Business Development Company. The Buyer is a business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940.
Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust company and whose
participants are exclusively (a) plans established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political subdivisions,
for the benefit of its employees, or (b) employee benefit plans within the meaning of Title
I of the Employee Retirement Income Security Act of 1974, but is not a trust fund that
includes as participants individual retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an unsold
allotment to or subscription by the Buyer, if the Buyer is a dealer, (iii) bank deposit
notes and certificates of deposit, (iv) loan participations, (v) repurchase agreements, (vi)
securities owned but subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred to in the
preceding paragraph. Further, in determining such aggregate amount, the Buyer may have
included securities owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such subsidiaries are
managed under the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Rule 144A Securities are
relying and will continue to rely on the statements made herein because one or more sales to
the Buyer may be in reliance on Rule 144A.
___ ___ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees that,
in connection with any purchase of securities sold to the Buyer for the account of a third
party (including any separate account) in reliance on Rule 144A, the Buyer will only
purchase for the account of a third party that at the time is a "qualified institutional
buyer" within the meaning of Rule 144A. In addition, the Buyer agrees that the Buyer will
not purchase securities for a third party unless the Buyer has obtained a current
representation letter from such third party or taken other appropriate steps contemplated by
Rule 144A to conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this certification
is made of any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of Rule 144A Securities will constitute a reaffirmation of this
certification as of the date of such purchase.
Print Name of Buyer
By: __________________________________
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act of 1933 ("Rule 144A")
because Buyer is part of a Family of Investment Companies (as defined below), is such an
officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, and (ii) as marked below, the
Buyer alone, or the Buyer's Family of Investment Companies, owned at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year. For purposes of determining the amount of securities owned
by the Buyer or the Buyer's Family of Investment Companies, the cost of such securities was
used.
____ The Buyer owned $___________________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned in the
aggregate $______________ in securities (other than the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same investment
adviser or investment advisers that are affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser is a majority owned
subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of Investment
Companies, (ii) bank deposit notes and certificates of deposit, (iii) loan participations,
(iv) repurchase agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each of the
parties to which this certification is made are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein. Until such
notice, the Buyer's purchase of Rule 144A Securities will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
________________________________________
Print Name of Buyer
By:_____________________________________
Name:
Title:
IF AN ADVISER:
_________________________________________
Print Name of Buyer
Date:
EXHIBIT D
FORM OF INVESTOR REPRESENTATION LETTER
______________, 20__
Residential Funding Mortgage Securities II, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services: RFMSII 2007-HSA3
Re: Home Equity Loan-Backed Certificates
Series 2007-HSA3, [Class R-__] [Class SB-__]
Ladies and Gentlemen:
(the "Purchaser") intends to purchase from
(the "Seller") a ___% Certificate Percentage Interest of Certificates of Series 2007-HSA3
(the "Certificates"), issued pursuant to the Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of May 30, 2007, between Residential Funding Mortgage Securities
II, Inc. as depositor (the "Depositor") and Wilmington Trust Company, as owner trustee (the
"Owner Trustee"), as acknowledged and agreed by LaSalle Bank National Association, as
Certificate Registrar. All terms used herein and not otherwise defined shall have the
meanings set forth in the Trust Agreement. The Purchaser hereby certifies, represents and
warrants to, and covenants with, the Depositor and the Certificate Registrar that:
1. The Purchaser understands that (a) the Certificates have not been and
will not be registered or qualified under the Securities Act of 1933, as amended (the "Act")
or any state securities law, (b) the Depositor is not required to so register or qualify the
Certificates, (c) the Certificates may be resold only if registered and qualified pursuant
to the provisions of the Act or any state securities law, or if an exemption from such
registration and qualification is available, (d) the Trust Agreement contains restrictions
regarding the transfer of the Certificates and (e) the Certificates will bear a legend to
the foregoing effect.
2. The Purchaser is acquiring the Certificates for its own account for
investment only and not with a view to or for sale in connection with any distribution
thereof in any manner that would violate the Act or any applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business matters, and, in
particular, in such matters related to securities similar to the Certificates, such that it
is capable of evaluating the merits and risks of investment in the Certificates, (b) able to
bear the economic risks of such an investment and (c) an "accredited investor" within the
meaning of Rule 501(a) promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had an opportunity to
review (a) [a copy of the Private Placement Memorandum, dated _______, 20__, relating
to the Certificates (b)] a copy of the Trust Agreement and [b] [c] such other
information concerning the Certificates, the Home Equity Loans and the Depositor as
has been requested by the Purchaser from the Depositor or the Seller and is relevant
to the Purchaser's decision to purchase the Certificates. The Purchaser has had any
questions arising from such review answered by the Depositor or the Seller to the
satisfaction of the Purchaser. [If the Purchaser did not purchase the Certificates
from the Seller in connection with the initial distribution of the Certificates and
was provided with a copy of the Private Placement Memorandum (the "Memorandum")
relating to the original sale (the "Original Sale") of the Certificates by the
Depositor, the Purchaser acknowledges that such Memorandum was provided to it by the
Seller, that the Memorandum was prepared by the Depositor solely for use in
connection with the Original Sale and the Depositor did not participate in or
facilitate in any way the purchase of the Certificates by the Purchaser from the
Seller, and the Purchaser agrees that it will look solely to the Seller and not to
the Depositor with respect to any damage, liability, claim or expense arising out of,
resulting from or in connection with (a) error or omission, or alleged error or
omission, contained in the Memorandum, or (b) any information, development or event
arising after the date of the Memorandum.]
5. The Purchaser has not and will not nor has it authorized or will it
authorize any person to (a) offer, pledge, sell, dispose of or otherwise transfer any
Certificate, any interest in any Certificate or any other similar security to any person in
any manner, (b) solicit any offer to buy or to accept a pledge, disposition of other
transfer of any Certificate, any interest in any Certificate or any other similar security
from any person in any manner, (c) otherwise approach or negotiate with respect to any
Certificate, any interest in any Certificate or any other similar security with any person
in any manner, (d) make any general solicitation by means of general advertising or in any
other manner or (e) take any other action, that (as to any of (a) through (e) above) would
constitute a distribution of any Certificate under the Act, that would render the
disposition of any Certificate a violation of Section 5 of the Act or any state securities
law, or that would require registration or qualification pursuant thereto. The Purchaser
will not sell or otherwise transfer any of the Certificates, except in compliance with the
provisions of the Trust Agreement.
6. [only applicable to the Class SB Certificates] [The Purchaser represents:
(i) that either (a) or (b) is satisfied, as marked below:
____ a. The Purchaser is not any employee benefit plan or other
plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986, as amended (the "Code") (each, a "Plan"), a
Person acting, directly or indirectly, on behalf of a Plan or any Person acquiring such
Certificates with "plan assets" of a Plan within the meaning of the Department of Labor
regulation promulgated at 29 C.F.R.ss.2510.3-101; or
____ b. The Purchaser has provided the Depositor, the Owner
Trustee, the Certificate Registrar and the Master Servicer with an opinion of counsel,
satisfactory to the Depositor, the Owner Trustee, the Certificate Registrar and the Master
Servicer, to the effect that the purchase and holding of a Certificate by or on behalf of
the Purchaser is permissible under applicable law, will not constitute or result in a
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or comparable
provisions of any subsequent enactments) and will not subject the Depositor, the Owner
Trustee, the Certificate Registrar or the Master Servicer to any obligation or liability
(including liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Trust Agreement, which opinion of counsel shall not be an expense of the
Depositor, the Owner Trustee, the Certificate Registrar or the Master Servicer; and
(ii) the Purchaser is familiar with the prohibited transaction restrictions
and fiduciary responsibility requirements of Sections 406 and 407 of ERISA and Section 4975
of the Code and understands that each of the parties to which this certification is made is
relying and will continue to rely on the statements made in this paragraph 6.]
7. The Purchaser is acquiring the Certificate for its own behalf and is not
acting as agent or custodian for any other person or entity in connection with such
acquisition;
8. The Purchaser is not a partnership, grantor trust or S corporation for
federal income tax purposes, or, if the Purchaser is a partnership, grantor trust or S
corporation for federal income tax purposes, the Certificates are not more than 50% of the
assets of the partnership, grantor trust or S corporation.
9. The Purchaser is not a non-United States person.
Very truly yours,
By: _______________________________
Name:
Title:
EXHIBIT E
FORM OF TRANSFEROR REPRESENTATION LETTER
____________ , 20
Residential Funding Mortgage Securities II, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Home Equity Loan-Backed Certificates
Series 2007-HSA3
Ladies and Gentlemen:
(the "Purchaser") intends to purchase
the "Seller") a ___% Certificate Percentage Interest of [Certificates] of Series 2007-HSA3
(the "Certificates"), issued pursuant to the Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of May 30, 2007, between Residential Funding Mortgage Securities
II, Inc. as depositor (the "Depositor") and Wilmington Trust Company, as owner trustee (the
"Owner Trustee"), as acknowledged and agreed by LaSalle Bank National Association, as
Certificate Registrar. All terms used herein and not otherwise defined shall have the
meanings set forth in the Trust Agreement. The Seller hereby certifies, represents and
warrants to, and covenants with, the Depositor and the Certificate Registrar that:
Neither the Seller nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in any Certificate or any
other similar security to any person in any manner, (b) has solicited any offer to buy or to
accept a pledge, disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has otherwise
approached or negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any general
solicitation by means of general advertising or in any other manner, or (e) has taken any
other action, that (as to any of (a) through (e) above) would constitute a distribution of
the Certificates under the Securities Act of 1933 (the "Act"), that would render the
disposition of any Certificate a violation of Section 5 of the Act or any state securities
law, or that would require registration or qualification pursuant thereto. The Seller will
not act, in any manner set forth in the foregoing sentence with respect to any Certificate.
The Seller has not and will not sell or otherwise transfer any of the Certificates, except
in compliance with the provisions of the Trust Agreement.
Very truly yours,
By:__________________________________
Name:
Title
EXHIBIT F
CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status ("certificate") is delivered pursuant to
Section 3.05 of the Amended and Restated Trust Agreement, dated as of May 30, 2007 (the
"Trust Agreement"), between Residential Funding Mortgage Securities II, Inc., as depositor
and Wilmington Trust Company, as Owner Trustee, in connection with the acquisition of,
transfer to or possession by the undersigned, whether as beneficial owner (the "Beneficial
Owner"), or nominee on behalf of the Beneficial Owner of the Home Equity Loan-Backed
Certificates, Series 2007-HSA3 (the "Certificates"). Capitalized terms used but not defined
in this certificate have the respective meanings given them in the Trust Agreement.
Each holder must complete Part I, Part II (if the holder is a nominee), and in all
cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificates an IRS Form W-9 relating
to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the
Internal Revenue Code (relating to withholding tax on foreign partners) do not apply in
respect of the Certificate held by the undersigned, the undersigned hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is ) not a non-resident alien for purposes
of U.S. income taxation;
2. My (The Beneficial Owner's) name and home address are:
____________________________________________; and
3. My (The Beneficial Owner's) U.S. taxpayer identification number (Social
Security Number) is ___________________________.
B. Corporate, Partnership or Other Entity as Beneficial - Owner
1. (Name of the Beneficial Owner) is not a foreign
corporation, foreign partnership, foreign trust or foreign estate (as those terms are
defined in the Code and Treasury Regulations;
2. The Beneficial Owner's office address and place of incorporation (if
applicable) is _____________________________; and
3. The Beneficial Owner's U.S. employer identification number is
________________________________.
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the undersigned certifies
that this certificate has been made in reliance upon information contained in:
an IRS Form W-9
a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned agrees to
notify the Trust at least thirty (30) days prior to the date that the form relied upon
becomes obsolete, and (ii) in connection with change in Beneficial Owners, the undersigned
agrees to submit a new Certificate of Non-Foreign Status to the Trust promptly after such
change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees to notify the
Trust within sixty (60) days of the date that the Beneficial Owner becomes a foreign
person. The undersigned understands that this certificate may be disclosed to the Internal
Revenue Service by the Trust and any false statement contained therein could be punishable
by fines, imprisonment or both.
Under penalties of perjury, I declare that I have examined this certificate and to
the best of my knowledge and belief it is true, correct and complete and will further
declare that I will inform the Trust of any change in the information provided above, and,
if applicable, I further declare that I have the authority* to sign this document.
Name:______________________________
Title (if applicable):____________________
Signature and Date:_____________________
*NOTE: If signed pursuant to a power of attorney, the power of attorney must accompany this
certificate.
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
_____________, 200__
Residential Funding Mortgage
Securities II, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Residential Funding Company, LLC
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
[CERTIFICATE REGISTRAR]
Re: Residential Funding Mortgage Securities II, Inc.
Home Equity Loan-Backed Certificates, Series 2007-HSA3
Dear Sirs:
__________________________________ (the "Transferee") intends to acquire from
_____________________ (the "Transferor") a ___% Certificate Percentage Interest of
Residential Funding Mortgage Securities II, Inc. Home Equity Loan-Backed Certificates,
Series 2007-HSA3 (the "Certificates"), issued pursuant to an Amended and Restated Trust
Agreement (the "Trust Agreement") dated May 30, 2007 among Residential Funding Mortgage
Securities II, Inc., as depositor (the "Depositor") and Wilmington Trust Company, as trustee
(the "Owner Trustee"). Capitalized terms used herein and not otherwise defined shall have
the meanings assigned thereto in the Trust Agreement.
The Transferee hereby certifies, represents and warrants to, and covenants with, the
Depositor, the Owner Trustee, the Certificate Registrar and the Master Servicer that either:
(1) The Certificates (i) are not being acquired by, and will not be transferred
to, any employee benefit plan within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and bank collective
investment funds and insurance company general or separate accounts in which such plans,
accounts or arrangements are invested, that is subject to Section 406 of ERISA or Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code") (any of the foregoing, a
"Plan"), (ii) are not being acquired with "plan assets" of a Plan within the meaning of the
Department of Labor ("DOL") Regulations Section 2510.3-101, and (iii) will not be
transferred to any entity that is deemed to be investing in plan assets within the meaning
of the DOL Regulations Section 2510.3-101; or
(2) The Transferee is familiar with the prohibited transaction restrictions and
fiduciary responsibility requirements of Sections 406 and 407 of ERISA and Section 4975 of
the Code and understands that each of the parties to which this certification is made is
relying and will continue to rely on the statements made herein.
Very truly yours,
By: ___________________________________
Name:
Title
EXHIBIT H
FORM OF REPRESENTATION LETTER
_____________, 200__
Residential Funding Mortgage
Securities II, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Residential Funding Company, LLC
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
[CERTIFICATE REGISTRAR]
Re: Residential Funding Mortgage Securities II, Inc.
Home Equity Loan-Backed Certificates, Series 2007-HSA3
Dear Sirs:
__________________________________ (the "Transferee") intends to acquire from
_____________________ (the "Transferor") a ___% Certificate Percentage Interest of
Residential Mortgage Securities II, Inc. Home Equity Loan-Backed Certificates, Series
2007-HSA3 (the "Certificates"), issued pursuant to a Amended and Restated Trust Agreement
(the "Trust Agreement") dated May 30, 2007 among Residential Funding Mortgage Securities II,
Inc., as depositor (the "Depositor") and Wilmington Trust Company, as trustee (the "Owner
Trustee"). Capitalized terms used herein and not otherwise defined shall have the meanings
assigned thereto in the Trust Agreement.
The Transferee hereby certifies, represents and warrants to, and covenants with, the
Depositor, the Owner Trustee, the Certificate Registrar and the Master Servicer that:
(1) the Transferee is acquiring the Certificate for its own behalf and is not
acting as agent or custodian for any other person or entity in connection with such
acquisition; and
(2) the Transferee is not a partnership, grantor trust or S corporation for
federal income tax purposes, or, if the Transferee is a partnership, grantor trust or S
corporation for federal income tax purposes, the Certificates are not more than 50% of the
assets of the partnership, grantor trust or S corporation.
Very truly yours,
By:_________________________________
Name:
Title:
EXHIBIT I
FORM OF CLASS R-I CERTIFICATES
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON OR A
DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A
"REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE PROVIDES
EITHER A CERTIFICATION PURSUANT TO SECTION 3.05(b)(ii) OF THE AGREEMENT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE SERVICER, THE COMPANY OR THE 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 (F) AN AGENT OF A 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 CERTIFICATE REGISTER OR 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 THIS PARAGRAPH.
Certificate No. 1
Cut-off Date:
May 1, 2007
Date of Trust Agreement:
May 29, 2007
First Payment Date: Certificate Percentage Interest of
June 25, 2007 this Certificate: 100%
Assumed Final Payment Date:
June 25, 2037
HOME EQUITY LOAN-BACKED CERTIFICATE
SERIES 2007-HSA3
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 Certificate is payable solely from the assets of the Owner Trust Estate,
and does not represent an obligation of or interest in the Depositor, the Seller, the Master
Servicer, the Indenture Trustee, the Owner Trustee or GMAC Mortgage Group, LLC or any of
their affiliates. This Certificate is not guaranteed or insured by any governmental agency
or instrumentality or by the Depositor, the Seller, the Master Servicer, the Indenture
Trustee, the Owner Trustee or GMAC Mortgage Group, LLC or any of their affiliates. None of
the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee,
GMAC Mortgage Group, LLC or any of their affiliates will have any obligation with respect to
any certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that Residential Funding Company, LLC is the registered owner
of the Certificate Percentage Interest evidenced by this Certificate (as set forth on the
face hereof) in certain distributions with respect to the 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 Certificate
is issued under and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents
and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the "Payment Date"), commencing on the first Payment Date specified
above, to the Person in whose name this Certificate is registered at the close of business
on the last day (or if such last day is not a Business Day, the Business Day immediately
preceding such last day) of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the pro rata portion evidenced by this
Certificate (based on the Certificate Percentage Interest stated on the face hereon) of the
Certificate Distribution Amount, if any, required to be distributed to Holders of
Certificates on such Payment Date. Distributions on this Certificate will be made as
provided in the Agreement by the Certificate Paying Agent by wire transfer or check mailed
to the Certificateholder of record in the Certificate Register without the presentation or
surrender of this Certificate or the making of any notation hereon.
Except as otherwise provided in the Agreement and notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the Certificate
Paying Agent of the pendency of such distribution and only upon presentation and surrender
of this Certificate at the office or agency maintained by the Certificate Registrar for that
purpose in the City of New York, New York or Chicago, Illinois.
Each Certificateholder of this Certificate will be deemed to have agreed to be
bound by the restrictions set forth 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 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 Certificate, to sell this
Certificate to a purchaser selected by the Depositor, which purchaser may be the Depositor,
or any affiliate of the Depositor, on such terms and conditions as the Depositor may choose.
No transfer of this Class R-I Certificate will be made unless the Certificate
Registrar (unless otherwise directed by the Depositor) 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
fiduciary responsibility requirements of ERISA or Section 4975 of the Code, any person
acting, directly or indirectly, on behalf of any such plan or any person using the "plan
assets," within the meaning of the Department of Labor regulations at 29 C.F.R.ss.2510.3-101,
of any such plan to effect such acquisition (collectively, a "Plan Investor") or (ii) if
such transferee is a Plan Investor, an opinion of counsel acceptable to and in form and
substance satisfactory to the Depositor, the Owner Trustee, the Master Servicer and the
Certificate Registrar, to the effect that the purchase or holding of a Class 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.
This 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 Certificate which are defined in the
Agreement shall have the meanings assigned to them in the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Certificate Distribution Account that have
been released from the Lien of the Indenture for payment hereunder and that neither the
Owner Trustee in its individual capacity nor the Depositor is personally liable to the
Certificateholders for any amount payable under this Certificate or the Agreement or, except
as expressly provided in the Agreement, subject to any liability under the Agreement.
The Holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the rights of the
Noteholders as described in the Indenture, dated as of May 30, 2007, between Home Equity
Loan Trust 2007-HSA3 (the "Trust") and LaSalle Bank National Association, as Indenture
Trustee (the "Indenture").
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not at any time institute against the Depositor or
the Trust, or join in any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, the Agreement or any of the Basic
Documents.
The Agreement permits the amendment thereof as specified below, provided that
any amendment be accompanied by the consent of the Credit Enhancer and an Opinion of Counsel
to the Owner Trustee to the effect that such amendment complies with the provisions of the
Agreement and will not cause the Trust to be subject to an entity level tax. If the purpose
of the amendment is to correct any mistake, eliminate any inconsistency, cure any ambiguity
or deal with any matter not covered, it shall not be necessary to obtain the consent of any
Holder, but the Owner Trustee 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 Certificate is registerable in the Certificate Register upon
surrender of this Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar maintained in the City of New York, New York or Chicago, Illinois,
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 Certificate Paying Agent, the Certificate
Registrar or any such agent shall be affected by any notice to the contrary.
This Certificate shall be governed by and construed in accordance with the
laws of the State of Delaware.
The obligations created by the Agreement in respect of the Certificates and
the Trust created thereby shall terminate upon the earliest of (i) the final distribution of
all moneys or other property or proceeds of the Owner Trust Estate in accordance with the
terms of the Indenture and the Agreement or (ii) the purchase by the Master Servicer of all
Home Equity Loans pursuant to Section 8.08 of the Servicing Agreement.
Unless the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual signature,
this Certificate shall not be entitled to any benefit under the Agreement or be valid for
any purpose.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly executed.
HOME EQUITY LOAN TRUST 2007-HSA3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
Dated: May 30, 2007 By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ______________________________
Authorized Signatory
or LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely,
as Authenticating Agent of the Trust
Dated: May 30, 2007
By: ______________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE___________________________________
_____________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
____________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably constituting and
appointing
______________________________________________________________________________to transfer
said Certificate on the books of the Certificate Registrar, with full power of substitution
in the premises.
Dated:___________________________
_____________________________________*/
Signature Guaranteed:
____________________________*/
_________________
*/ NOTICE: The signature to this assignment must correspond with the name as it appears
upon the face of the within Certificate in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the Certificate
Paying Agent:
Distribution shall be made by wire transfer in immediately available funds to
____________________________________________________________________, 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 R-II CERTIFICATES
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON OR A
DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A
"REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE PROVIDES
EITHER A CERTIFICATION PURSUANT TO SECTION 3.05(b)(ii) OF THE AGREEMENT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE SERVICER, THE COMPANY OR THE 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 (F) AN AGENT OF A 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 CERTIFICATE REGISTER OR 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 THIS PARAGRAPH.
Certificate No. 1
Cut-off Date:
May 1, 2007
Date of Trust Agreement:
May 29, 2007
First Payment Date: Certificate Percentage Interest of
June 25, 2007 this Certificate: 100%
Assumed Final Payment Date:
June 25, 2037
HOME EQUITY LOAN-BACKED CERTIFICATE
SERIES 2007-HSA3
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 Certificate is payable solely from the assets of the Owner Trust Estate,
and does not represent an obligation of or interest in the Depositor, the Seller, the Master
Servicer, the Indenture Trustee, the Owner Trustee or GMAC Mortgage Group, LLC or any of
their affiliates. This Certificate is not guaranteed or insured by any governmental agency
or instrumentality or by the Depositor, the Seller, the Master Servicer, the Indenture
Trustee, the Owner Trustee or GMAC Mortgage Group, LLC or any of their affiliates. None of
the Depositor, the Seller, the Master Servicer, the Indenture Trustee, the Owner Trustee,
GMAC Mortgage Group, LLC or any of their affiliates will have any obligation with respect to
any certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that Residential Funding Company, LLC is the registered owner
of the Certificate Percentage Interest evidenced by this Certificate (as set forth on the
face hereof) in certain distributions with respect to the 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 Certificate
is issued under and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents
and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the "Payment Date"), commencing on the first Payment Date specified
above, to the Person in whose name this Certificate is registered at the close of business
on the last day (or if such last day is not a Business Day, the Business Day immediately
preceding such last day) of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the pro rata portion evidenced by this
Certificate (based on the Certificate Percentage Interest stated on the face hereon) of the
Certificate Distribution Amount, if any, required to be distributed to Holders of
Certificates on such Payment Date. Distributions on this Certificate will be made as
provided in the Agreement by the Certificate Paying Agent by wire transfer or check mailed
to the Certificateholder of record in the Certificate Register without the presentation or
surrender of this Certificate or the making of any notation hereon.
Except as otherwise provided in the Agreement and notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the Certificate
Paying Agent of the pendency of such distribution and only upon presentation and surrender
of this Certificate at the office or agency maintained by the Certificate Registrar for that
purpose in the City of New York, New York or Chicago, Illinois.
Each Certificateholder of this Certificate will be deemed to have agreed to be
bound by the restrictions set forth 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 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 Certificate, to sell this
Certificate to a purchaser selected by the Depositor, which purchaser may be the Depositor,
or any affiliate of the Depositor, on such terms and conditions as the Depositor may choose.
No transfer of this Class R-II Certificate will be made unless the Certificate
Registrar (unless otherwise directed by the Depositor) 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
fiduciary responsibility requirements of ERISA or Section 4975 of the Code, any person
acting, directly or indirectly, on behalf of any such plan or any person using the "plan
assets," within the meaning of the Department of Labor regulations at 29 C.F.R.ss.2510.3-101,
of any such plan to effect such acquisition (collectively, a "Plan Investor") or (ii) if
such transferee is a Plan Investor, an opinion of counsel acceptable to and in form and
substance satisfactory to the Depositor, the Owner Trustee, the Master Servicer and the
Certificate Registrar, to the effect that the purchase or holding of a Class 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.
This 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 Certificate which are defined in the
Agreement shall have the meanings assigned to them in the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Certificate Distribution Account that have
been released from the Lien of the Indenture for payment hereunder and that neither the
Owner Trustee in its individual capacity nor the Depositor is personally liable to the
Certificateholders for any amount payable under this Certificate or the Agreement or, except
as expressly provided in the Agreement, subject to any liability under the Agreement.
The Holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the rights of the
Noteholders as described in the Indenture, dated as of May 30, 2007, between Home Equity
Loan Trust 2007-HSA3 (the "Trust") and LaSalle Bank National Association, as Indenture
Trustee (the "Indenture").
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not at any time institute against the Depositor or
the Trust, or join in any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, the Agreement or any of the Basic
Documents.
The Agreement permits the amendment thereof as specified below, provided that
any amendment be accompanied by the consent of the Credit Enhancer and an Opinion of Counsel
to the Owner Trustee to the effect that such amendment complies with the provisions of the
Agreement and will not cause the Trust to be subject to an entity level tax. If the purpose
of the amendment is to correct any mistake, eliminate any inconsistency, cure any ambiguity
or deal with any matter not covered, it shall not be necessary to obtain the consent of any
Holder, but the Owner Trustee 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 Certificate is registerable in the Certificate Register upon
surrender of this Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar maintained in the City of New York, New York or Chicago, Illinois,
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 Certificate Paying Agent, the Certificate
Registrar or any such agent shall be affected by any notice to the contrary.
This Certificate shall be governed by and construed in accordance with the
laws of the State of Delaware.
The obligations created by the Agreement in respect of the Certificates and
the Trust created thereby shall terminate upon the earliest of (i) the final distribution of
all moneys or other property or proceeds of the Owner Trust Estate in accordance with the
terms of the Indenture and the Agreement or (ii) the purchase by the Master Servicer of all
Home Equity Loans pursuant to Section 8.08 of the Servicing Agreement.
Unless the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual signature,
this Certificate shall not be entitled to any benefit under the Agreement or be valid for
any purpose.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly executed.
HOME EQUITY LOAN TRUST 2007-HSA3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
Dated: May 30, 2007 By:________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ______________________________
Authorized Signatory
or LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely,
as Authenticating Agent of the Trust
Dated: May 30, 2007
By: ______________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE___________________________________
_____________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
____________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably constituting and
appointing
______________________________________________________________________________to transfer
said Certificate on the books of the Certificate Registrar, with full power of substitution
in the premises.
Dated:___________________________
_____________________________________*/
Signature Guaranteed:
____________________________*/
_________________
*/ NOTICE: The signature to this assignment must correspond with the name as it appears
upon the face of the within Certificate in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the Certificate
Paying Agent:
Distribution shall be made by wire transfer in immediately available funds to
_______________________________________________________________________, 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 J-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or beneficial owner of the
Home Equity Loan-Backed Certificates, Series 2007-HSA3, Class R-[ ] (the "Owner")), a
[savings institution] [corporation] duly organized and existing under the laws of [the State
of ] [the United States], on behalf of which he makes
this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified organization" or an
electing large partnership as of [date of transfer] within the meaning of Sections
860E(e)(5) and 775, respectively, of the Internal Revenue Code of 1986, as amended (the
"Code") or an electing large partnership under Section 775(a) of the Code, (ii) will endeavor
to remain other than a disqualified organization for so long as it retains its ownership
interest in the Class R-[ ] Certificates, and (iii) is acquiring the Class R-[ ]
Certificates for its own account or for the account of another Owner from which it has
received an affidavit and agreement in substantially the same form as this affidavit and
agreement. (For this purpose, a "disqualified organization" means an electing large
partnership under Section 775 of the Code, the United States, any state or political
subdivision thereof, any agency or instrumentality of any of the foregoing (other than an
instrumentality all of the activities of which are subject to tax and, except for the
Federal Home Loan Mortgage Corporation, a majority of whose board of directors is not
selected by any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or organization,
any rural electric or telephone cooperative, or any organization (other than certain
farmers' cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on transfers of Class R
Certificates to disqualified organizations or electing large partnerships, under the Code,
that applies to all transfers of Class R Certificates after March 31, 1988; (ii) that such
tax would be on the transferor (or, with respect to transfers to electing large
partnerships, on each such partnership), or, if such transfer is through an agent (which
person includes a broker, nominee or middleman) for a disqualified organization, on the
agent; (iii) that the person (other than with respect to transfers to electing large
partnerships) otherwise liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such person an affidavit that the transferee is not a disqualified
organization and, at the time of transfer, such person does not have actual knowledge that
the affidavit is false; and (iv) that the Class R-[ ] Certificates may be "noneconomic
residual interests" within the meaning of Treasury regulations promulgated pursuant to the
Code and that the transferor of a noneconomic residual interest will remain liable for any
taxes due with respect to the income on such residual interest, unless no significant
purpose of the transfer was to impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through entity" holding Class R
Certificates if either the pass-through entity is an electing large partnership under
Section 775 of the if at any time during the taxable year of the pass-through entity a
disqualified organization is the record holder of an interest in such entity. (For this
purpose, a "pass through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and certain
cooperatives.)
5. The Owner is either (i) a citizen or resident of the United States, (ii) a
corporation, partnership or other entity treated as a corporation or a partnership for U.S.
federal income tax purposes and created or organized in or under the laws of the United
States, any state thereof or the District of Columbia (other than a partnership that is not
treated as a United States person under any applicable Treasury regulations), (iii) an
estate that is described in Section 7701(a)(30)(D) of the Code, or (iv) a trust that is
described in Section 7701(a)(30)(E) of the Code.
6. The Owner hereby agrees that it will not cause income from the Class R- [ ]
Certificates to be attributable to a foreign permanent establishment or fixed base (within
the meaning of an applicable income tax treaty) of the Owner or another United States
taxpayer.
7. That the Owner is aware that the Certificate Registrar will not register the transfer
of any Class R Certificates unless the transferee, or the transferee's agent, delivers to it
an affidavit and agreement, among other things, in substantially the same form as this
affidavit and agreement. The Owner expressly agrees that it will not consummate any such
transfer if it knows or believes that any of the representations contained in such affidavit
and agreement are false.
8. That the Owner has reviewed the restrictions set forth on the face of the Class R
Certificates and the provisions of Section 3.05 of the Trust Agreement under which the Class
R-[ ] Certificates were issued (in particular, clause (i)(A) and (i)(B) of Section 3.05
which authorize the Certificate Registrar to deliver payments to a person other than the
Owner and negotiate a mandatory sale by the Servicer Trustee in the event the Owner holds
such Certificates in violation of Section 3.05). The Owner expressly agrees to be bound by
and to comply with such restrictions and provisions.
9. That the Owner consents to any additional restrictions or arrangements that shall be
deemed necessary upon advice of counsel to constitute a reasonable arrangement to ensure
that the Class R-[ ] Certificates will only be owned, directly or indirectly, by an Owner
that is not a disqualified organization.
10. The Owner's Taxpayer Identification Number is _______________________________.
11. This affidavit and agreement relates only to the Class R-[ ] Certificates held by
the Owner and not to any other holder of the Class R-[ ]Certificates. The Owner
understands that the liabilities described herein relate only to the Class R-[ ]
Certificates.
12. That no purpose of the Owner relating to the transfer of any of the Class R-[ ]
Certificates by the Owner is or will be to impede the assessment or collection of any tax;
in making this representation, the Owner warrants that the Owner is familiar with (i)
Treasury Regulation Section 1.860E-1(c) and recent amendments thereto, effective as of July
19, 2002, and (ii) the preamble describing the adoption of the amendments to such
regulation, which is attached hereto as Exhibit 1.
13. That the Owner has no present knowledge or expectation that it will be unable to pay
any United States taxes owed by it so long as any of the Certificates remain outstanding.
In this regard, the Owner hereby represents to and for the benefit of the person from whom
it acquired the Class R-[ ] Certificate that the Owner intends to pay taxes associated with
holding such Class R-[ ] Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Class R-[ ] Certificate.
14. That the Owner has no present knowledge or expectation that it will become insolvent
or subject to a bankruptcy proceeding for so long as any of the Class R-[ ] Certificates
remain outstanding.
15. The Purchaser is not an employee benefit plan or other plan subject to the prohibited
transaction provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or
an investment manager, named fiduciary or a trustee of any such plan, or any other Person
acting, directly or indirectly, on behalf of or purchasing any Certificate with "plan
assets" of any such plan.
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Title of Officer] and
its corporate seal to be hereunto attached, attested by its [Assistant] Secretary, this ____
day of __________, ____________.
[NAME OF OWNER]
By: _____________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and to be
the [Title of Officer] of the Owner, and acknowledged to me that he executed the same
as his free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ____ day of __________, ____________.
NOTARY PUBLIC
COUNTY OF ____________________________
STATE OF _____________________________
My Commission expires the ______ day of _____, 20__.
EXHIBIT 1
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 9004]
RIN 1545-AW98
Real Estate Mortgage Investment Conduits
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations relating to safe
harbor transfers of noneconomic residual interests in real estate
mortgage investment conduits (REMICs). The final regulations provide
additional limitations on the circumstances under which transferors may
claim safe harbor treatment.
DATES: Effective Date: These regulations are effective July 19, 2002.
Applicability Date: For dates of applicability, see Sec. 1.860E-
(1)(c)(10).
FOR FURTHER INFORMATION CONTACT: Xxxxxxxx Xxxxxxxxxx at (000) 000-0000
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information in this final rule has been reviewed
and, pending receipt and evaluation of public comments, approved by the
Office of Management and Budget (OMB) under 44 U.S.C. 3507 and assigned
control number 1545-1675.
The collection of information in this regulation is in Sec. 1.860E-
1(c)(5)(ii). This information is required to enable the IRS to verify
that a taxpayer is complying with the conditions of this regulation.
The collection of information is mandatory and is required. Otherwise,
the taxpayer will not receive the benefit of safe harbor treatment as
provided in the regulation. The likely respondents are businesses and
other for-profit institutions.
Comments on the collection of information should be sent to the
Office of Management and Budget, Attn: Desk Officer for the Department
of the Treasury, Office of Information and Regulatory Affairs,
Xxxxxxxxxx, XX, 00000, with copies to the Internal Revenue Service,
Attn: IRS Reports Clearance Officer, W:CAR:MP:FP:S, Xxxxxxxxxx, XX
00000. Comments on the collection of information should be received by
September 17, 2002. Comments are specifically requested concerning:
Whether the collection of information is necessary for the proper
performance of the functions of the Internal Revenue Service, including
whether the information will have practical utility;
The accuracy of the estimated burden associated with the collection
of information (see below);
How the quality, utility, and clarity of the information to be
collected may be enhanced;
How the burden of complying with the collection of information may
be minimized, including through the application of automated collection
techniques or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation,
maintenance, and purchase of service to provide information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a valid
control number assigned by the Office of Management and Budget.
The estimated total annual reporting burden is 470 hours, based on
an estimated number of respondents of 470 and an estimated average
annual burden hours per respondent of one hour.
Books or records relating to a collection of information must be
retained as long as their contents may become material in the
administration of any internal revenue law. Generally, tax returns and
tax return information are confidential, as required by 26 U.S.C. 6103.
Background
This document contains final regulations regarding the proposed
amendments to 26 CFR part 1 under section 860E of the Internal Revenue
Code (Code). The regulations provide the circumstances under which a
transferor of a noneconomic REMIC residual interest meeting the
investigation and representation requirements may avail itself of the
safe harbor by satisfying either the formula test or the asset test.
Final regulations governing REMICs, issued in 1992, contain rules
governing the transfer of noneconomic REMIC residual interests. In
general, a transfer of a noneconomic residual interest is disregarded
for all tax purposes if a significant purpose of the transfer is to
[[Page 47452]]
enable the transferor to impede the assessment or collection of tax. A
purpose to impede the assessment or collection of tax (a wrongful
purpose) exists if the transferor, at the time of the transfer, either
knew or should have known that the transferee would be unwilling or
unable to pay taxes due on its share of the REMIC's taxable income.
Under a safe harbor, the transferor of a REMIC noneconomic residual
interest is presumed not to have a wrongful purpose if two requirements
are satisfied: (1) the transferor conducts a reasonable investigation
of the transferee's financial condition (the investigation
requirement); and (2) the transferor secures a representation from the
transferee to the effect that the transferee understands the tax
obligations associated with holding a residual interest and intends to
pay those taxes (the representation requirement).
The IRS and Treasury have been concerned that some transferors of
noneconomic residual interests claim they satisfy the safe harbor even
in situations where the economics of the transfer clearly indicate the
transferee is unwilling or unable to pay the tax associated with
holding the interest. For this reason, on February 7, 2000, the IRS
published in the Federal Register (65 FR 5807) a notice of proposed
rulemaking (REG-100276-97; REG-122450-98) designed to clarify the safe
harbor by adding the "formula test," an economic test. The proposed
regulation provides that the safe harbor is unavailable unless the
present value of the anticipated tax liabilities associated with
holding the residual interest does not exceed the sum of: (1) The
present value of any consideration given to the transferee to acquire
the interest; (2) the present value of the expected future
distributions on the interest; and (3) the present value of the
anticipated tax savings associated with holding the interest as the
REMIC generates losses.
The notice of proposed rulemaking also contained rules for FASITs.
Section 1.860H-6(g) of the proposed regulations provides requirements
for transfers of FASIT ownership interests and adopts a safe harbor by
reference to the safe harbor provisions of the REMIC regulations.
In January 2001, the IRS published Rev. Proc. 2001-12 (2001-3
I.R.B. 335) to set forth an alternative safe harbor that taxpayers
could use while the IRS and the Treasury considered comments on the
proposed regulations. Under the alternative safe harbor, if a
transferor meets the investigation requirement and the representation
requirement but the transfer fails to meet the formula test, the
transferor may invoke the safe harbor if the transferee meets a two-
prong test (the asset test). A transferee generally meets the first
prong of this test if, at the time of the transfer, and in each of the
two years preceding the year of transfer, the transferee's gross assets
exceed $100 million and its net assets exceed $10 million. A transferee
generally meets the second prong of this test if it is a domestic,
taxable corporation and agrees in writing not to transfer the interest
to any person other than another domestic, taxable corporation that
also satisfies the requirements of the asset test. A transferor cannot
rely on the asset test if the transferor knows, or has reason to know,
that the transferee will not comply with its written agreement to limit
the restrictions on subsequent transfers of the residual interest.
Rev. Proc. 2001-12 provides that the asset test fails to be
satisfied in the case of a transfer or assignment of a noneconomic
residual interest to a foreign branch of an otherwise eligible
transferee. If such a transfer or assignment were permitted, a
corporate taxpayer might seek to claim that the provisions of an
applicable income tax treaty would resource excess inclusion income as
foreign source income, and that, as a consequence, any U.S. tax
liability attributable to the excess inclusion income could be offset
by foreign tax credits. Such a claim would impede the assessment or
collection of U.S. tax on excess inclusion income, contrary to the
congressional purpose of assuring that such income will be taxable in
all events. See, e.g., sections 860E(a)(1), (b), (e) and 860G(b) of the
Code.
The Treasury and the IRS have learned that certain taxpayers
transferring noneconomic residual interests to foreign branches have
attempted to rely on the formula test to obtain safe harbor treatment
in an effort to impede the assessment or collection of U.S. tax on
excess inclusion income. Accordingly, the final regulations provide
that if a noneconomic residual interest is transferred to a foreign
permanent establishment or fixed base of a U.S. taxpayer, the transfer
is not eligible for safe harbor treatment under either the asset test
or the formula test. The final regulations also require a transferee to
represent that it will not cause income from the noneconomic residual
interest to be attributable to a foreign permanent establishment or
fixed base.
Section 1.860E-1(c)(8) provides computational rules that a taxpayer
may use to qualify for safe harbor status under the formula test.
Section 1.860E-1(c)(8)(i) provides that the transferee is presumed to
pay tax at a rate equal to the highest rate of tax specified in section
11(b). Some commentators were concerned that this presumed rate of
taxation was too high because it does not take into consideration
taxpayers subject to the alternative minimum tax rate. In light of the
comments received, this provision has been amended in the final
regulations to allow certain transferees that compute their taxable
income using the alternative minimum tax rate to use the alternative
minimum tax rate applicable to corporations.
Additionally, Sec. 1.860E-1(c)(8)(iii) provides that the present
values in the formula test are to be computed using a discount rate
equal to the applicable Federal short-term rate prescribed by section
1274(d). This is a change from the proposed regulation and Rev. Proc.
2001-12. In those publications the provision stated that "present
values are computed using a discount rate equal to the applicable
Federal rate prescribed in section 1274(d) compounded semiannually"
and that "[a] lower discount rate may be used if the transferee can
demonstrate that it regularly borrows, in the course of its trade or
business, substantial funds at such lower rate from an unrelated third
party." The IRS and the Treasury Department have learned that, based
on this provision, certain taxpayers have been attempting to use
unrealistically low or zero interest rates to satisfy the formula test,
frustrating the intent of the test. Furthermore, the Treasury
Department and the IRS believe that a rule allowing for a rate other
than a rate based on an objective index would add unnecessary
complexity to the safe harbor. As a result, the rule in the proposed
regulations that permits a transferee to use a lower discount rate, if
the transferee can demonstrate that it regularly borrows substantial
funds at such lower rate, is not included in the final regulations; and
the Federal short-term rate has been substituted for the applicable
Federal rate. To simplify taxpayers' computations, the final
regulations allow use of any of the published short-term rates,
provided that the present values are computed with a corresponding
period of compounding. With the exception of the provisions relating to
transfers to foreign branches, these changes generally have the
proposed applicability date of February 4, 2000, but taxpayers may
choose to apply the interest rate formula set forth in the proposed
regulation and Rev. Proc. 2001-12 for transfers occurring before August
19, 2002.
It is anticipated that when final regulations are adopted with
respect to
[[Page 47453]]
FASITs, Sec. 1.860H-6(g) of the proposed regulations will be adopted in
substantially its present form, with the result that the final
regulations contained in this document will also govern transfers of
FASIT ownership interests with substantially the same applicability
date as is contained in this document.
Effect on Other Documents
Rev. Proc. 2001-12 (2001-3 I.R.B. 335) is obsolete for transfers of
noneconomic residual interests in REMICs occurring on or after August
19, 2002.
Special Analyses
It is hereby certified that these regulations will not have a
significant economic impact on a substantial number of small entities.
This certification is based on the fact that it is unlikely that a
substantial number of small entities will hold REMIC residual
interests. Therefore, a Regulatory Flexibility Analysis under the
Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. It has
been determined that this Treasury decision is not a significant
regulatory action as defined in Executive Order 12866. Therefore, a
regulatory assessment is not required. It also has been determined that
sections 553(b) and 553(d) of the Administrative Procedure Act (5
U.S.C. chapter 5) do not apply to these regulations.
Drafting Information
The principal author of these regulations is Xxxxxxxx Xxxxxxxxxx.
However, other personnel from the IRS and Treasury Department
participated in their development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and record keeping requirements.
26 CFR Part 602
Reporting and record keeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in
part as follows:
Authority: 26 U.S.C. 7805 * * *
EXHIBIT J-2
FORM OF TRANSFEROR CERTIFICATE
____________ , 20
Residential Funding Mortgage
Securities II, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Institutional Trust Services/Structured Finance Services
Re: Home Equity Loan-Backed Certificates,
Series 2007-HSA3, Class R-[__]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
(the "Seller") to (the "Purchaser")
of a [__]% Percentage Interest in the Home Equity Loan-Backed Certificates, Series
2007-HSA3, Class R-[ ] (the "Certificates"), pursuant to Section 3.05 of the Trust Agreement
(the "Trust Agreement"), dated as of May [ ], 2007 among Residential Asset Mortgage
Products, Inc., as seller (the "Company"), and Wilmington Trust Company, as owner trustee
(the "Trustee"). All terms used herein and not otherwise defined shall have the meanings
set forth in the Amended and Restated Trust Agreement. The Seller hereby certifies,
represents and warrants to, and covenants with, the Company and the Trustee that:
1. No purpose of the Seller relating to the transfer of the Certificate by the
Seller to the Purchaser is or will be to impede the assessment or collection of any tax.
2. The Seller understands that the Purchaser has delivered to the Trustee and the
Master Servicer a transfer affidavit and agreement in the form attached to the Trust
Agreement as Exhibit J-1. The Seller does not know or believe that any representation
contained therein is false.
3. The Seller has at the time of the transfer conducted a reasonable
investigation of the financial condition of the Purchaser as contemplated by Treasury
Regulations Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Seller has
determined that the Purchaser has historically paid its debts as they become due and has
found no significant evidence to indicate that the Purchaser will not continue to pay its
debts as they become due in the future. The Seller understands that the transfer of a Class
R-[ ] Certificate may not be respected for United States income tax purposes (and the
Seller may continue to be liable for United States income taxes associated therewith) unless
the Seller has conducted such an investigation.
4. The Seller has no actual knowledge that the proposed Transferee is not both a
United States Person and a Permitted Transferee.
Very truly yours,
(Seller)
By: __________________________
Name:
Title: