EXECUTION COPY
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Company,
GMAC MORTGAGE CORPORATION,
as Certificate Administrator,
and
XX XXXXXX XXXXX BANK,
as Trustee
TRUST AGREEMENT
Dated as of February 27, 2004
GMACM Mortgage Trust Certificates, Series 2004-JR1
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...............................................................3
Section 1.01 Defined Terms.....................................................3
ARTICLE II CONVEYANCE OF THE UNDERLYING CERTIFICATE; ORIGINAL ISSUANCE OF
TRUST CERTIFICATES.......................................................16
Section 2.01 Conveyance of the Underlying Certificate.........................16
Section 2.02 Issuance of Trust Certificates...................................18
Section 2.03 Conveyance of Uncertificated REMIC I Regular Interests;
Acceptance by Trustee............................................18
Section 2.04 Issuance of Certificates Evidencing Interest in REMIC II.........18
Section 2.05 Purposes and Powers of the Trust Fund............................18
ARTICLE III ADMINISTRATION OF THE UNDERLYING CERTIFICATE; PAYMENTS AND REPORTS
TO CERTIFICATEHOLDERS....................................................19
Section 3.01 Administration of the Trust Fund and the Underlying
Certificate......................................................19
Section 3.02 Collection of Monies.............................................23
Section 3.03 Establishment of Trust Certificate Account; Deposits in
Trust Certificate Account........................................23
Section 3.04 Permitted Withdrawals From the Trust Certificate Account.........24
Section 3.05 Distributions....................................................24
Section 3.06 Statements to Certificateholders.................................27
Section 3.07 Access to Certain Documentation and Information..................29
Section 3.08 Sale of Defective Assets.........................................29
Section 3.09 Modification of Underlying Certificate...........................29
Section 3.10 Distributions of Uncertificated REMIC I Regular Interests........29
Section 3.11 Allocation of Class A Loss Amounts...............................31
Section 3.12 Compliance with Withholding Requirements.........................31
Section 3.13 Determination of LIBOR...........................................31
ARTICLE IV THE TRUST CERTIFICATES...................................................32
Section 4.01 The Trust Certificates...........................................32
Section 4.02 Registration of Transfer and Exchange of Trust Certificates......34
Section 4.03 Mutilated, Destroyed, Lost or Stolen Trust Certificates..........37
Section 4.04 Persons Deemed Owners............................................37
i
ARTICLE V THE TRUSTEE..............................................................37
Section 5.01 Duties of the Trustee............................................37
Section 5.02 Certain Matters Affecting the Trustee............................39
Section 5.03 Trustee Not Liable for Trust Certificates or Underlying
Certificate......................................................40
Section 5.04 Trustee May Own Trust Certificates...............................40
Section 5.05 Eligibility Requirements for Trustee.............................40
Section 5.06 Resignation and Removal of the Trustee...........................41
Section 5.07 Successor Trustee................................................42
Section 5.08 Merger or Consolidation of Trustee...............................42
Section 5.09 Appointment of Co-Trustee or Separate Trustee....................42
Section 5.10 Appointment of Office or Agency..................................43
Section 5.11 Trustee's Fees and Expenses; Indemnification.....................44
Section 5.12 Certain Actions Relating to Underlying Certificate...............44
Section 5.13 Representations and Warranties of the Trustee....................45
ARTICLE VI TERMINATION..............................................................46
Section 6.01 Termination......................................................46
Section 6.02 Additional Termination Requirements..............................46
ARTICLE VII THE COMPANY AND THE CERTIFICATE ADMINISTRATOR............................47
Section 7.01 Liability of the Company.........................................47
Section 7.02 Merger, Consolidation or Conversion of the Company...............47
Section 7.03 Limitation on Liability of the Company and Others................48
Section 7.04 Company and Certificate Administrator Not to Resign..............49
Section 7.05 Successor Certificate Administrator..............................49
Section 7.06 Representation and Warranty of Company...........................49
ARTICLE VIII MISCELLANEOUS PROVISIONS.................................................49
Section 8.01 Amendment........................................................49
Section 8.02 Counterparts.....................................................51
Section 8.03 Limitation on Rights of Certificateholders.......................51
Section 8.04 Governing Law....................................................52
ii
Section 8.05 Notices..........................................................52
Section 8.06 Notices to the Rating Agencies...................................52
Section 8.07 Severability of Provisions.......................................53
Section 8.08 Successors and Assigns...........................................53
Section 8.09 Article and Section Headings.....................................53
Section 8.10 Supplemental Provisions for Resecuritization.....................53
Section 8.11 Non-Petition.....................................................54
EXHIBITS
Exhibit A-1: Form of Class A Certificate
Exhibit B: Form of Class R Certificate
Exhibit C-1: Form of Transfer Affidavit and Agreement
Exhibit C-2: Form of Transferor Certificate
Exhibit D: Pooling and Servicing Agreement
Exhibit E: Form of Form 10-K Certification
Exhibit F: Form of Back-Up Certification to Form 10-K Certificate
iii
This TRUST AGREEMENT (this "Agreement"), dated as of February 27, 2004,
is among RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., a Delaware corporation, as
the company (together with its permitted successors and assigns, the "Company"),
GMAC MORTGAGE CORPORATION, a Delaware corporation, as certificate administrator
(together with its permitted successors and assigns, the "Certificate
Administrator"), and XX XXXXXX XXXXX BANK, a New York banking corporation,
solely in its capacity as trustee hereunder, as Trustee (together with its
permitted successors and assigns, the "Trustee").
PRELIMINARY STATEMENT
The Company intends to sell the Trust Certificates (as defined herein),
to be issued hereunder in fifteen classes, which in the aggregate will evidence
the entire beneficial ownership interest in the Underlying Certificate (as
defined herein). As provided herein, the REMIC Administrator will make an
election to treat the entire segregated pool of assets described in the
definition of Trust Fund, as a REMIC (as defined herein) for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC I."
The Class R-I Certificates will represent the sole class of "residual interests"
in REMIC I for purposes of the REMIC Provisions (as defined herein) under
federal income tax law. The "latest possible maturity date" (determined solely
for purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii)) for
each of the Uncertificated REMIC I Regular Interests (as defined herein) will be
the Distribution Date (as defined herein) in December of 2033.
As provided herein, the REMIC Administrator will make an election to
treat the segregated pool of assets consisting of the Uncertificated REMIC I
Regular Interests as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as REMIC II. The Class R-II
Certificates will represent the sole class of "residual interests" in REMIC II
for purposes of the REMIC Provisions under federal income tax law. The remaining
Trust Certificates (other than the Class R-I Certificates) represent the
"regular interests" in REMIC II. The "latest possible maturity date" (determined
solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii)) for each REMIC II Regular Interest shall be the first
Distribution Date that follows the stated maturity date for the Mortgage Loan
included in the Trust Fund (as defined in the Pooling and Servicing Agreement)
as of the Closing Date (as defined in the Pooling and Servicing Agreement) with
the longest remaining term to stated maturity.
The following table sets forth the designation, type, Pass-Through Rate
(as defined herein), aggregate initial Certificate Principal Balance (as defined
herein), initial ratings and certain other features of each Class of Trust
Certificate comprising the interests in the Trust Fund (as defined herein).
1
AGGREGATE
INITIAL
CERTIFICATE
PASS-THROUGH PRINCIPAL MINIMUM
DESIGNATION RATE BALANCE FEATURES(1) FITCH/S&P DENOMINATIONS(2)
____________ ____________ ____________ ____________ ____________ ________________
Class A-1 5.25% $30,000,000 Fixed Rate AAA/AAA $25,000.00
Class A-2 5.25% $3,255,000 Fixed Rate AAA /AAA $25,000.00
Class A-3 5.00% $88,510,584 Fixed Rate AAA /AAA $25,000.00
Class A-4 5.25% $30,000,000 Fixed Rate AAA /AAA $25,000.00
Class A-5 4.75% $150,000,231 Fixed Rate AAA /AAA $25,000.00
Class A-6 Variable $35,319,185 Floater/Variable AAA /AAA $25,000.00
Rate (3) Rate
Class A-7(4) Variable $0 Inverse AAA /AAA (4)
Rate (5) Floater/Variable
Rate /Interest
Only
Class A-8 5.25% $21,572,000 Accretion AAA /AAA $25,000.00
Directed/Fixed
Rate
Class A-9 5.25% $15,924,000 Accretion AAA /AAA $25,000.00
Directed/Fixed
Rate
Class A-10 5.25% $28,311,915 Accrual/Fixed Rate AAA /AAA $25,000.00
Class A-11 5.25% $43,864,000 Lockout/Super AAA /AAA $25,000.00
Senior/Fixed Rate
Class A-12 5.25% $2,309,000 Lockout/Senior AAA /AAA $25,000.00
Support/Fixed Rate
Class A-13 0.00% $428,089 Principal Only AAA /AAA $25,000.00
Class R-I 5.25% $50.00 Fixed AAA /AAA (6)
Rate/Residual
Class R-II 5.25% $50.00 Fixed AAA /AAA (6)
Rate/Residual
___________________________
(1) The Class A Certificates shall be Book-Entry Certificates. The Class R
Certificates shall be delivered to the Holders thereof in physical form.
(2) The Trust Certificates, other than the Class A-7 and Class R Certificates,
shall be issuable in minimum dollar denominations as indicated above (by
Certificate Principal Balance) and integral multiples of $1 in excess
thereof.
(3) With respect to the Class A-6 Certificates and any Distribution Date (other
than the first Distribution Date), the Pass-Through Rate will equal a per
annum rate equal to the lesser of: (a) LIBOR plus a margin of 0.45% and (b)
8.00%. Notwithstanding the foregoing, the Pass-Through Rate on the Class A-6
Certificates will not be less than 0.45% per annum. The initial Pass-Through
Rate for the Class A-6 Certificates shall be equal to 1.57% per annum.
(4) With respect to the Class A-7 Certificates and any Distribution Date (other
than the first Distribution Date), the Pass-Through Rate will equal a per
annum rate equal to the greater of: (a) 7.55% minus LIBOR and (b) 0.00%.
Notwithstanding the foregoing, the Pass-Through Rate for the Class A-7
Certificates will not be greater than 7.55%. The initial Pass-Through Rate
for the Class A-7 Certificates shall be equal to 6.43% per annum. The Class
A-7 Certificates shall be issuable in minimum denominations of not less than
$1,000,000 Notional Amount.
(5) The initial Notional Amount for the Class A-7 Certificates shall be equal to
$35,319,185, and thereafter the Notional Amount of the Class A-7
Certificates shall be equal to the Certificate Principal Balance of the
Class A-6 Certificates.
2
(6) The Class R Certificates shall be issuable in minimum denominations of not
less than a 20% Percentage Interest, other than the de minimis portion of
each Class of the Class R Certificates, which will be transferred to the
REMIC Administrator on the Closing Date.
The Underlying Certificate has an aggregate principal balance as of the
Closing Date of $449,494,105.
All things necessary to make this Agreement a valid declaration of trust
by the Company in accordance with its terms have been done.
In consideration of the premises and the mutual agreements herein
contained, the Company, the Certificate Administrator and the Trustee agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01... Defined Terms.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Accretion Directed Certificates: The Class A-8 and Class A-9 Certificates.
Accrual Certificate: Any one of the Certificates designated as a Class A-10
Certificate.
Accrual Distribution Amount: On each Distribution Date prior to the
Credit Support Depletion Date, an amount equal to the aggregate amount of
Accrued Certificate Interest on the Class A-10 Certificates for such date, which
will be added to the Certificate Principal Balance of the Class A-10
Certificates and that amount will be distributed to the holders of the Accretion
Directed Certificates and then to the Class A-10 Certificates in the manner and
priority set forth in Section 3.05 as principal in reduction of the Certificate
Principal Balance of the Accretion Directed Certificates and Class A-10
Certificates. The amount that is added to the Certificate Principal Balance of
the Class A-10 Certificates will accrue interest at a rate of 5.25% per annum.
On each Distribution Date on or after the Credit Support Depletion Date, the
entire amount of Accrued Certificate Interest on the Class A-10 Certificates for
such date will be payable to the holders of the Class A-10 Certificates.
Accrued Certificate Interest: With respect to any Distribution Date, an
amount equal to (a) in the case of each Class of the Class A Certificates, other
than the Class A-7 and Class A-13 Certificates, interest accrued during the
related Interest Accrual Period on the Certificate Principal Balance of the
Trust Certificates of that Class immediately prior to such Distribution Date at
the related Pass-Through Rate and (b) in the case of the Class A-7 Certificates,
interest accrued during the related Interest Accrual Period on the related
Notional Amount immediately prior to such Distribution Date at the
then-applicable Pass-Through Rate on that Class for that Distribution Date; in
3
each case less any Class A Excess Loss Amount with respect to such Distribution
Date and less interest shortfalls, if any, allocated to the Underlying
Certificate immediately preceding such Distribution Date; including in each
case:
(1) any Prepayment Interest Shortfall to the extent not covered
by the Servicer pursuant to the terms of the Pooling and Servicing
Agreement;
(2) the interest portions of Realized Losses allocated to the
Underlying Certificate;
(3) the interest portion of any advances that were made with
respect to delinquencies on the Mortgage Loans that were ultimately
determined to be not recoverable by the Servicer in accordance with the
Pooling and Servicing Agreement; and
(4) any other interest shortfalls on the Mortgage Loans not
covered by subordination (as set forth in the Pooling and Servicing
Agreement), including interest shortfalls relating to the Servicemembers
Civil Relief Act, as amended, or similar legislation or regulations.
Such interest shortfalls and Class A Excess Loss Amounts will be
allocated among all of the Trust Certificates in proportion to their respective
amounts of Accrued Certificate Interest payable on such Distribution Date.
Accrued Certificate Interest on each Class of Trust Certificates will be
calculated on the basis of a 360-day year consisting of twelve 30-day months and
will be carried out to at least three decimal places.
Adverse REMIC Event: Shall have the meaning set forth in Section 3.01(f)
hereof.
Affiliate: An "affiliate" of, or person "affiliated" with, a specific
person, is a person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
the person specified.
Agreement: This Trust Agreement and all amendments hereof and supplements
hereto.
Available Funds: With respect to any Distribution Date, an amount equal
to the amount received on the Underlying Certificate on such Distribution Date
less amounts withdrawn pursuant to Section 3.04(ii).
Book-Entry Certificate: Any Trust Certificate registered in the name of
the Depository or its nominee, and designated as such in the Preliminary
Statement hereto.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the State of New York or the Commonwealth
of Pennsylvania (and such other state or states in which the Custodial Account
or the Trust Certificate Account are at the time located) are required or
authorized by law or executive order to be closed.
4
Certificate Administrator: GMAC Mortgage Corporation, in its capacity as
certificate administrator under this Agreement, or any successor certificate
administrator appointed under the terms of this Agreement.
Certificate Administrator Fee: With respect to the Underlying
Certificate any Distribution Date, the fee payable monthly to the Certificate
Administrator in respect of certificate administrator compensation that accrues
at 0.005% per annum on the outstanding principal balance of the Underlying
Certificate during the calendar month preceding the month in which such
Distribution Date occurs.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate, as reflected on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent, if any, and otherwise on the books of a Depository
Participant, if any, and otherwise on the books of the Depository.
Certificate Principal Balance: For any Class of Trust Certificates,
other than the Class A-7 Certificates, as of any date of determination, an
amount equal to the initial Certificate Principal Balance of such Trust
Certificate, plus, in the case of the Class A-10 Certificates, an amount equal
to the aggregate Accrued Certificate Interest added to the Certificate Principal
Balance of the Class A-10 Certificates on each Distribution Date prior to the
Credit Support Depletion Date, reduced by the aggregate of (a) all amounts
allocable to principal previously distributed with respect to such Trust
Certificate and (b) any reductions in the Certificate Principal Balance of such
Trust Certificate deemed to have occurred in connection with allocations of the
Class A Loss Amounts to such Class of Trust Certificates. The Class A-7
Certificates have no Certificate Principal Balance.
Certificate Register: The register maintained pursuant to Section 4.02
hereof which shall provide for the registration of Trust Certificates and of
transfers and exchanges of Trust Certificates, as herein provided.
Certificate Registrar: The Trustee.
Certificateholder or Holder: The person in whose name a Trust
Certificate is registered in the Certificate Register, except that, solely for
the purpose of giving any consent or exercising any Voting Rights pursuant to
this Agreement, any Trust Certificate registered in the name of the Company or
any Affiliate shall be deemed not to be an Outstanding Certificate or taken into
account when calculating the Voting Rights of any Certificateholder.
All references herein to "Holder" or "Certificateholder" shall reflect
the rights of Certificate Owners as they may indirectly exercise such rights
through the Depository and participating members thereof, except as otherwise
specified herein; provided, however, that the Trustee shall be required to
recognize as a "Holder" or "Certificateholder" only the Person in whose name a
Trust Certificate is registered in the Certificate Register.
Class: Collectively, all of the Trust Certificates bearing the same
designation.
5
Class A Certificate: Any one of the Class X-0, Xxxxx X-0, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class A-10,
Class A-11, Class A-12 and Class A-13 Certificates executed and delivered by the
Trustee substantially in the form annexed hereto as Exhibit A-1, evidencing an
interest designated as a "regular interest" in REMIC II for purposes of the
REMIC Provisions.
Class A Excess Loss Amount: On the Distribution Date on which the
Certificate Principal Balance of the Class A Certificates has been reduced to
zero, the greater of zero and the excess of the Class A Loss Amount not applied
in reduction of such Certificate Principal Balance of the Class A Certificates
over the Accrued Certificate Interest to be paid in respect of such Class A
Certificates.
Class A Loss Amount: With respect to the Class A Certificates and on
each Distribution Date, the excess of the Certificate Principal Balance of the
Class A Certificates over the Underlying Certificate Balance, in each case after
giving effect to distributions on or prior to such Distribution Date.
Class R Certificate: Any one of the Class R-I or Class R-II Certificates
executed and delivered hereunder by the Trustee substantially in the form
annexed hereto as Exhibit B, evidencing an interest designated as the "residual
interest" in the Trust Fund for purposes of the REMIC Provisions.
Closing Date: February 27, 2004.
Code: The Internal Revenue Code of 1986, as amended.
Company: Residential Asset Mortgage Products, Inc. or any successors in
interest.
Corporate Trust Office: The principal office of the Trustee at which at
any particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
instrument is located at 0 Xxx Xxxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Institutional Trust Services, GMAC 2004-JR1.
Credit Support Depletion Date: The date on which the principal balances
of the 2003-J8 Certificates, Class M and Class B, have been reduced to zero.
Custodial Account: The custodial account or accounts created and
maintained pursuant to Section 3.07 of the Pooling and Servicing Agreement in
the name of a depository institution, as custodian for the holders of the
Underlying Certificate, for the holders of certain other interests in mortgage
loans serviced or sold by the Certificate Administrator or owned by the
Certificate Administrator, into which the amounts set forth in Section 3.07 of
the Pooling and Servicing Agreement shall be deposited directly. Any such
account or accounts shall be an Eligible Account (as defined in the Pooling and
Servicing Agreement).
Definitive Certificate: Any definitive, fully registered Trust Certificate.
Depository: The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Trust Certificates that are to be Book-Entry Certificates is
6
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the Uniform Commercial Code of the State of
New York and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Securities Exchange Act of 1934, as amended.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Distribution Date: The 25th day of each month, or if such 25th day is
not a Business Day, the next succeeding Business Day, commencing on the First
Distribution Date.
Eligible Account: An account that is any of the following: (i)
maintained with a depository institution the debt obligations of which have been
rated by each Rating Agency in its highest rating available, or (ii) an account
or accounts in a depository institution in which such accounts are fully insured
to the limits established by the FDIC, provided that any deposits not so insured
shall, to the extent acceptable to each Rating Agency, as evidenced in writing,
be maintained such that (as evidenced by an Opinion of Counsel delivered to the
Trustee and each Rating Agency) the registered Holders of Trust Certificates
have a claim with respect to the funds in such account or a perfected first
security interest against any collateral securing such funds that is superior to
claims of any other depositors or creditors of the depository institution with
which such account is maintained, or (iii) in the case of the Custodial Account,
a trust account or accounts maintained in the corporate trust department of the
Custodian (as defined in the Pooling and Servicing Agreement), or (iv) in the
case of the Trust Certificate Account, a trust account or accounts maintained in
the corporate trust division of the Trustee, or (v) an account or accounts of a
depository institution acceptable to each Rating Agency (as evidenced in writing
by each Rating Agency that use of any such account as the Custodial Account or
the Trust Certificate Account will not reduce the rating assigned to any Class
of Trust Certificates by such Rating Agency below the lower of the then-current
rating or the rating assigned to such Trust Certificates as of the Closing Date
by such Rating Agency).
FDIC: The Federal Deposit Insurance Corporation or any successor.
First Distribution Date: March 25, 2004.
Fitch: Fitch Ratings., or its successor in interest.
Independent: When used with respect to any specified Person, such a
Person who (i) is in fact independent of the Company, (ii) does not have any
direct financial interest in the Company or in an Affiliate, and (iii) is not
connected with the Company as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Initial Certificate Principal Balance: With respect to each Class of
Trust Certificates, the Certificate Principal Balance of such Class of Trust
Certificates as of the Closing Date, as set forth in the Preliminary Statement
hereto.
Interest Accrual Period: With respect to any Trust Certificates other
than the Variable Rate Certificates, and any Distribution Date, the calendar
month preceding the month in which such Distribution Date occurs. With respect
7
to the Variable Rate Certificates and any Distribution Date, the one month
period beginning on the 25th day of the preceding calendar month and ending on
the 24th day of the month in which such Distribution Date occurs.
Interest Distribution Amount: With respect to any Distribution Date, the
aggregate amount of Accrued Certificate Interest (other than the Accrual
Distribution Amount) to be paid to the Certificateholders for such Distribution
Date.
LIBOR: With respect to any Distribution Date, the arithmetic mean of the
London interbank offered rate quotations for one-month Eurodollar deposits,
determined on the preceding LIBOR Rate Adjustment Date as set forth in Section
3.13 hereof.
LIBOR Business Day: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the city of London, England are
required or authorized by law to be closed.
LIBOR Rate Adjustment Date: With respect to any Interest Accrual Period
for the Variable Rate Certificates, the second LIBOR Business Day preceding the
commencement of such Interest Accrual Period.
Lockout Certificate Share: With respect to any Distribution Date, the
sum of the Certificate Principal Balances of the Class A-11 and Class A-12
Certificates, divided by the aggregate Certificate Principal Balance of all
classes of Certificates, other than the Class-7 Certificates.
Lockout Certificates: Any one of the Certificates designated as a Class
A-11 or Class A-12 Certificate.
Lockout Percentage: With respect to any Distribution Date occurring prior
to the Distribution Date in March 2009, 0%. With respect to any Distribution
Date thereafter, the percentage indicated below:
Distribution Date Lockout Distribution Percentage
March 2009 through February 2010 30%
March 2010 through February 2011 40%
March 2011 through February 2012 60%
March 2012 through February 2013 80%
March 2013 and thereafter 100%
Maturity Date: With respect to each Class of Trust Certificates and the
Uncertificated REMIC I Regular Interests, December 25, 2033.
Mortgage Loans: The mortgage loans in which the Underlying Certificate
evidences a beneficial ownership interest.
Non-United States Person: Any Person other than a United States Person.
8
Notice of Final Distribution: With respect to the Underlying
Certificate, the notice to be provided pursuant to the Pooling and Servicing
Agreement to the effect that final distribution on the Underlying Certificate
shall be made only upon presentation and surrender thereof.
Notice of Termination: Any of the notices given by the Trustee pursuant to
Section 6.01(b).
Notional Amount: With respect to any date of determination and the Class
A-7 Certificates, an amount equal to the Certificate Principal Balance of the
Class A-6 Certificates immediately prior to such date. Reference to a Notional
Amount with respect to the Class A-7 Certificates is solely for convenience in
specific calculations and does not represent the right to receive any
distributions allocable to principal.
Officer's Certificate: A certificate signed by the Chairman of the
Board, the President or a Vice President or Assistant Vice President, or a
Director or Managing Director, and by the Treasurer, the Secretary, or one of
the Assistant Treasurers or Assistant Secretaries of the Company or the
Certificate Administrator, as the case may be, and delivered to the Trustee, as
required by this Agreement.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee and the Certificate Administrator, who may be counsel for the Company or
the Certificate Administrator, provided that any opinion of counsel (i) referred
to in the definition of "Disqualified Organization" in the Pooling and Servicing
Agreement or (ii) relating to the qualification of any REMIC formed under the
Pooling and Servicing Agreement, this Agreement or in compliance with the REMIC
Provisions must, unless otherwise specified, be an opinion of Independent
counsel.
Outstanding Certificates: With respect to any of the Trust Certificates,
as of the date of determination, all Trust Certificates theretofore executed and
delivered under this Agreement except:
(i) Trust Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Trust Certificates in exchange for which or in lieu of which other Trust
Certificates have been executed and delivered pursuant to this Agreement
unless proof satisfactory to the Trustee is presented that any such
Trust Certificates are held by a holder in due course.
Ownership Interest: As to any Trust Certificate, any ownership or
security interest in such Trust Certificate, including any interest in such
Trust Certificate as the Holder thereof and any other interest therein, whether
direct or indirect, legal or beneficial, as owner or as pledgee.
Pass-Through Rate: For all Classes of Trust Certificates, the per annum
rate set forth in the Pass-Through Rate column in the first table in the
Preliminary Statement hereto. The Class A-13 Certificates have a Pass-Through
Rate of 0.00% and are not entitled to Accrued Certificate Interest.
9
Percentage Interest: With respect to any Trust Certificate (other than a
Class A-7 Certificate or a Class R Certificate), the undivided percentage
ownership interest in the related Class evidenced by such Trust Certificate,
which percentage ownership interest shall be equal to the Initial Certificate
Principal Balance thereof divided by the aggregate Initial Certificate Principal
Balance of all the Trust Certificates of the same Class. With respect to a Class
A-7 Certificate or a Class R Certificate, the interest in distributions to be
made with respect to such Class evidenced thereby, expressed as a percentage, as
stated on the face of each such Trust Certificate.
Permitted Transferee: Any Transferee of a Class R Certificate other than
(i) the United States, any state or any 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 Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by any such
governmental unit), (ii) a foreign government, international organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code, (v) an electing large
partnership under Section 775 of the Code and (vi) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Class R Certificate by such Person may cause the
Trust Fund or any Person having an Ownership Interest in any Class of Trust
Certificates, other than such Person, to incur a liability for any tax imposed
under the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Class R Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Pooling and Servicing Agreement: The Pooling and Servicing Agreement,
dated as of November 25, 2003, and attached as Exhibit D hereto, among the
Company, the Servicer, and the Trustee, as such agreement is amended from time
to time.
Prepayment Assumption: The blended percentage of the standard prepayment
assumption and the constant prepayment rate set forth in the following sentence
with respect to the Mortgage Loans. [**The Prepayment Assumption assumes a
constant prepayment rate of the Mortgage Loans of [ ** ]% per annum of the then
outstanding principal balance of such Mortgage Loans in the first month of the
life of the mortgage loans, increasing by an additional [ ** ]% per annum in
each succeeding month until the twelfth month, and a constant [ ** ]% per annum
rate of prepayment thereafter for the life of the Underlying Certificate.**]
Prepayment Interest Shortfall: As to any Distribution Date and the
Underlying Certificate that received an interest distribution on the related
Distribution Date that was reduced pursuant to the terms of the Pooling and
Servicing Agreement because of a principal prepayment in full on a Mortgage Loan
10
or Mortgage Loans relating to the Underlying Certificate, the amount of such
reduction.
Principal Distribution Amount: With respect to any Distribution Date,
the balance of the Available Funds (including the Accrual Distribution Amount)
remaining after the Interest Distribution Amount has been distributed.
Rating Agencies: Fitch and S&P.
Realized Losses: Losses on the Mortgage Loans applied in reduction of
the aggregate principal balance of a 2003-J8 Certificate that is not accompanied
by a cash payment in respect of such reduction.
Record Date: With respect to each Class of Certificates other than the
Variable Rate Certificates, and any Distribution Date, the close of business on
the last Business Day of the month next preceding the month in which such
Distribution Date occurs. With respect to the Variable Rate Certificates and any
Distribution Date, the close of business on the Business Day next preceding such
Distribution Date.
Reference Bank Rate: The rates at which deposits in U.S. Dollars are
offered by the reference banks (which shall be three major banks that are
engaged in transactions in the London interbank market, selected by the Trustee
after consultation with the Certificate Administrator) as of 11:00 A.M., London
time, on the day that is one LIBOR Business Day prior to the immediately
preceding Distribution Date to prime banks in the London interbank market for a
period of one month in amounts approximately equal to the aggregate Certificate
Principal Balances of the Variable Rate Certificates then outstanding.
Regular Certificates: The Class A Certificates.
Related Class: As to any Uncertificated REMIC I Regular Interest, any
related class of Trust Certificates identified as "Related Classes of Trust
Certificates" to such Uncertificated REMIC I Regular Interest in the definition
of Uncertificated REMIC I Regular Interest.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code. As used herein, the term "the REMIC" or "the REMICs"
shall mean one or more of the REMICs created under this Agreement.
REMIC Administrator: The Trustee; provided that if the REMIC
Administrator is found by a court of competent jurisdiction to no longer be able
to fulfill its obligations as REMIC Administrator under this Agreement, the
Certificate Administrator or the successor servicer selected in accordance with
the terms of the Pooling and Servicing Agreement acting as Certificate
Administrator shall appoint a successor REMIC Administrator, subject to
assumption of the REMIC Administrator obligations under this Agreement.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
temporary and final regulations (or, to the extent not inconsistent with such
temporary or final regulations, proposed regulations) and published rulings,
11
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
REMIC I: The segregated pool of assets, with respect to which a REMIC
election is made pursuant to this Agreement, consisting of:
(a) the Underlying Certificate,
(b) all payments on and collections in respect of the Underlying Certificate
due after the Closing Date as shall be on deposit in the Trust
Certificate Account and identified as belonging to the Trust Fund, and
(c) all proceeds of clauses (a) and (b) above.
REMIC I Certificates: The Class R-I Certificates.
REMIC II: The segregated pool of assets consisting of the Uncertificated
REMIC I Regular Interests conveyed in trust to the Trustee for the benefit of
the Holders of each Class of Trust Certificates (other than the Class R-I
Certificates) pursuant to Section 2.03, with respect to which a separate REMIC
election is to be made.
REMIC II Certificates: Any Trust Certificate, other than a Class R-I
Certificate.
REMIC II Regular Certificate: Any REMIC II Certificate, other than a
Class R-II Certificate.
Responsible Officer: When used with respect to the Trustee, any officer
of the Corporate Trust Office of the Trustee, including any Senior Vice
President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers to whom, with respect to a particular matter,
such matter is referred.
S&P: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or its successor in interest.
Senior Support Certificate: Any of the Class A-12 Certificates.
Servicer: GMAC Mortgage Corporation, in its capacity as servicer under
the Pooling and Servicing Agreement, or any successor servicer appointed under
the terms of the Pooling and Servicing Agreement.
Super Senior Optimal Percentage: As to any Distribution Date on or after
the Credit Support Depletion Date, a percentage expressed as a fraction, the
numerator of which is the aggregate Certificate Principal Balance of the Class
A-11 Certificates immediately prior to that Distribution Date and the
denominator of which is the Certificate Principal Balance of each class of Trust
Certificates immediately prior to that Distribution Date.
12
Super Senior Optimal Principal Distribution Amount: As to any
Distribution Date on or after the Credit Support Depletion Date, an amount equal
to the product of (a) the then-applicable Super Senior Optimal Percentage for
that class and (b) the Principal Distribution Amount.
Tax Returns: The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of any REMIC formed under the Pooling and Servicing Agreement and
under the REMIC Provisions, together with any and all other information, reports
or returns that may be required to be furnished to the Certificateholders or
filed with the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal, state or local tax laws.
Telerate Screen Page 3750: The display designated as page 3750 on the
Telerate Service (or such other page as may replace page 3750 on that service
for the purpose of displaying London interbank offered rates of major banks).
Termination Date: The Distribution Date following the Distribution Date
on which the Underlying Certificate Balance has been reduced to zero.
Transfer: Any direct or indirect transfer, sale, pledge, hypothecation
or other form of assignment of any Ownership Interest in a Trust Certificate.
Transferee: Any Person who is acquiring by Transfer any Ownership Interest
in a Trust Certificate.
Transferor: Any Person who is disposing by Transfer of any Ownership
Interest in a Trust Certificate.
Trust Certificate: Any Class A Certificate or Class R Certificate.
Trust Certificate Account: The separate account or accounts created and
maintained pursuant to Section 3.03 hereof, which shall be entitled "XX Xxxxxx
Chase Bank, as trustee, in trust for the registered holders of Residential Asset
Mortgage Products, Inc., Mortgage Trust Certificates, Series 2004-JR1" and which
must be an Eligible Account. Funds deposited in the Trust Certificate Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in Article III hereof.
Trustee: XX Xxxxxx Xxxxx Bank or its successor in interest, or any
successor trustee appointed as herein provided, each solely in its capacity as
trustee hereunder.
Trust Fund: The corpus of the trust created by and to be administered
under this Agreement consisting of: (i) the Underlying Certificate, (ii) all
distributions thereon after but not including the Distribution Date occurring in
March 2004, and (iii) the Trust Certificate Account and such assets that are
deposited therein from time to time, together with any and all income, proceeds
and payments with respect thereto.
13
2003-J8 Certificates: GMACM Mortgage Pass-Through Certificates, Series
2003-J8.
Uncertificated Accrued Interest: With respect to each Distribution Date,
as to each Uncertificated REMIC I Regular Interest, an amount equal to the
aggregate amount of Accrued Certificate Interest that would result under the
terms of the definition thereof on the Related Classes of Trust Certificates if
the Pass-Through Rate on such Classes were equal to the Uncertificated
Pass-Through Rate on such Uncertificated REMIC I Regular Interest.
Uncertificated Pass-Through Rate: With respect to each of the
Uncertificated REMIC I Regular Interests, the per annum rate specified in the
definition of Uncertificated REMIC I Regular Interests.
Uncertificated Principal Balance: With respect to each Uncertificated
REMIC I Regular Interest, as defined in the definition of Uncertificated REMIC I
Regular Interest.
Uncertificated REMIC I Regular Interest: The interests identified in the
table below, each representing an undivided beneficial ownership interest in
REMIC I, and having the following characteristics:
1. The principal balance of each Uncertificated REMIC I Regular
Interest identified in the table below shall be the amount identified as
the Aggregate Initial Principal Balance thereof in such table (each, an
"Uncertificated Principal Balance"), plus, in the case of the Class A-10
REMIC I Regular Interest, an amount equal to the aggregate Accrued
Certificate Interest added to the Certificate Principal Balance of the
Accrual Certificates prior to such date of determination, minus the
aggregate of all amounts previously deemed distributed with respect to
such interest and applied to reduce the Uncertificated Principal Balance
thereof pursuant to Section 3.10(a)(ii), which equals the aggregate
principal balance of the Classes of Trust Certificates identified as
related to such Uncertificated REMIC I Regular Interest in such table.
2. The Uncertificated Pass-Through Rate for each Uncertificated
REMIC I Regular Interest identified in the table below shall be the per
annum rate set forth in the Uncertificated Pass-Through Rate column of
such table.
3. The Uncertificated REMIC I Distribution Amount for each REMIC
I Regular Interest identified in the table below shall be, for any
Distribution Date, the amount deemed distributed with respect to such
Uncertificated REMIC I Regular Interest on such Distribution Date
pursuant to the provisions of Section 3.10(a).
14
UNCERTIFICATED
REMIC I REGULAR UNCERTIFICATED AGGREGATE INITIAL RELATED CLASSES OF TRUST
INTEREST PASS-THROUGH RATE PRINCIPAL BALANCE CERTIFICATES
V 5.25% $175,235,965 Class A-1, Class A-2,
Class A-4, Class A-8, Class
A-9, Class A-10, Class A-11
and Class A-12
W 5.00% $88,510,584 Class A-3
X 4.75% $150,000,231 Class A-5
Y 8.00% $35,319,185 Class A-6 and Class A-7
Z 0.00% $428,089 Class A-13
Uncertificated REMIC I Regular Interest Distribution Amounts: With
respect to each Uncertificated REMIC I Regular Interest, the amount specified as
the Uncertificated REMIC I Regular Interest Distribution Amount with respect
thereto in the definition of Uncertificated REMIC I Regular Interests.
Underlying Certificate: A certificate that represents a 91.40% interest,
as of the Closing Date, in the Certificate Principal Balance (as defined in the
Pooling and Servicing Agreement) of the 2003-J8 Certificates, Class A.
Underlying Certificate Balance: With respect to the Underlying
Certificate, as of any Distribution Date (following all distributions to be made
with respect to the Underlying Certificate on such Distribution Date), and as of
any date of determination thereafter until the next succeeding Distribution
Date, the outstanding principal balance of the Underlying Certificate,
determined by reference to the Distribution Date Statement sent to the Trustee
as Underlying Certificateholder, relating to such Distribution Date, which is to
be determined in accordance with the terms of the Pooling and Servicing
Agreement.
Underlying Certificateholder: The registered owner of the Underlying
Certificate.
Underlying Distribution Date Statement: With respect to the Underlying
Certificate and any Distribution Date, the monthly remittance report forwarded
to the holder thereof with respect to such Distribution Date pursuant to the
terms of the Pooling and Servicing Agreement.
Underlying Trustee: As defined in Section 5.05.
United States Person: A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
Variable Rate Certificates: The Class A-6 and Class A-7 Certificates.
Voting Rights: Ninety-eight percent (98%) of all of the Voting Rights
shall be allocated among Holders of Trust Certificates, other than the Class A-7
15
and Class R Certificates, in proportion to the outstanding Certificate Principal
Balances of their respective Trust Certificates; 1% of all Voting Rights shall
be allocated among the Holders of the Class A-7 Certificates, in accordance with
their respective Percentage Interests; and 0.5% and 0.5% of all Voting Rights
shall be allocated among the Holders of the Class R-I Certificates and Class
R-II Certificates, respectively, in accordance with their respective Percentage
Interests.
ARTICLE II
CONVEYANCE OF THE UNDERLYING CERTIFICATE;
ORIGINAL ISSUANCE OF TRUST CERTIFICATES
Section 2.01 Conveyance of the Underlying Certificate.
(a) The Company, concurrently with the execution and delivery hereof, does
hereby sell, transfer, assign, set-over and otherwise convey to the Trustee, in
trust, for the use and benefit of the Certificateholders, without recourse, all
the right, title and interest of the Company in and to the Underlying
Certificate and all other assets constituting the Trust Fund. Such assignment
includes, without limitation, all amounts payable to and all rights of the
Underlying Certificateholder pursuant to the Pooling and Servicing Agreement.
In connection with such transfer and assignment, on the Closing Date the
Company will deliver to, and deposit with, the Trustee the Underlying
Certificate, together with a duly issued and authenticated certificate or
certificates for the Underlying Certificate, evidencing the entire interest in
such Underlying Certificate, with appropriate endorsements and other
documentation sufficient under the Pooling and Servicing Agreement to transfer
such Underlying Certificate to the Trustee.
Notwithstanding the foregoing, to the extent that the Underlying
Certificate is a Book-Entry Certificate, delivery of the Underlying Certificate
will be satisfied if the Company meets the requirements of the Depository to
sell, transfer, assign, set-over and otherwise convey to the Trustee the
Underlying Certificate in accordance with the rules of the Depository and
applicable provisions of the Uniform Commercial Code as in force in the relevant
jurisdiction from time to time.
The Trustee hereby acknowledges the receipt by it of the Underlying
Certificate and the other documents and instruments referenced above, and
declares that it holds and will hold such Underlying Certificate, and such other
documents and instruments, and all other assets and documents included in the
Trust Fund, in trust for the exclusive use and benefit of all present and future
Certificateholders.
(b) It is intended that the conveyance by the Company to the Trustee of the
Underlying Certificate as provided for in this Section 2.01 and the
Uncertificated REMIC Regular Interests be construed as a sale by the Company to
the Trustee of the Underlying Certificate and any Uncertificated REMIC Regular
Interests for the benefit of the Certificateholders. Further, it is not intended
that such conveyance be deemed to be a pledge of the Underlying Certificate and
any Uncertificated REMIC Regular Interests by the Company to the Trustee to
secure a debt or other obligation of the Company. Nonetheless, (a) this
Agreement is intended to be and hereby is a security agreement within the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the
16
Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance
provided for in Section 2.01 shall be deemed to be, and hereby is, a grant by
the Company to the Trustee of a security interest in all of the Company's right
(including the power to convey title thereto), title and interest, whether now
owned or hereafter acquired, in and to any and all general intangibles, payment
intangibles, accounts, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of credit
and investment property and other property of whatever kind or description now
existing or hereafter acquired consisting of, arising from or relating to any of
the following: (A) Underlying Certificate, (B) all amounts payable pursuant to
the holders of the Underlying Certificate in accordance with the terms thereof
and of the Pooling and Servicing Agreement, (C) any Uncertificated REMIC Regular
Interests and (D) all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property, including
without limitation all amounts from time to time held or invested in the Trust
Certificate Account, whether in the form of cash, instruments, securities or
other property; (c) the possession by the Trustee or any agent of the Trustee of
the Underlying Certificate or such other items of property as constitute
instruments, money, payment intangibles, negotiable documents, goods, deposit
accounts, letters of credit, advices of credit, investment property,
certificated securities or chattel paper shall be deemed to be "possession by
the secured party," or possession by a purchaser or a person designated by such
secured party, for purposes of perfecting the security interest pursuant to the
Pennsylvania Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction as in effect (including, without limitation,
Sections 9-313 and 9-314 thereof); and (d) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for (as applicable) the Trustee for the purpose of perfecting such
security interest under applicable law.
(c) The Company, the Certificate Administrator and the Trustee shall, to the
extent consistent with this Agreement, take such reasonable actions as may be
necessary to ensure that, if this Agreement were determined to create a security
interest in the Underlying Certificate and the Uncertificated REMIC Regular
Interests and the other property described above, such security interest would
be determined to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of this
Agreement. Without limiting the generality of the foregoing, the Company shall
prepare and deliver to the Trustee not less than 15 days prior to any filing
date and, the Trustee shall forward for filing, or shall cause to be forwarded
for filing, at the expense of the Company, all filings necessary to maintain the
effectiveness of any original filings necessary under the Uniform Commercial
Code as in effect in any jurisdiction to perfect the Trustee's security interest
in or lien on the Underlying Certificate and any Uncertificated REMIC Regular
Interests, as evidenced by an Officers' Certificate of the Company, including
without limitation (x) continuation statements, and (y) such other statements as
may be occasioned by (1) any change of name of the Company or the Trustee (such
preparation and filing shall be at the expense of the Trustee, if occasioned by
a change in the Trustee's name), (2) any change of location of the place of
business or the chief executive office of the Company, or (3) any transfer of
any interest of GMAC Mortgage Corporation or the Company in any Uncertificated
REMIC Regular Interest.
17
Section 2.02 Issuance of Trust Certificates.
The Trustee acknowledges the transfer, delivery and assignment to it of
the Underlying Certificate, together with the assignment to it of all other
assets included in the Trust Fund, and declares that it holds and will hold the
Underlying Certificate and all other assets included in the Trust Fund in trust
for the benefit of all present and future Certificateholders. Concurrently with
such transfer and delivery, the Trustee has duly executed, authenticated and
delivered, to or upon the order of the Company, the Trust Certificates in
authorized denominations, and registered in such names and at such addresses as
the Company has requested.
Section 2.03 Conveyance of Uncertificated REMIC I Regular Interests; Acceptance
by Trustee.
The Company, as of the Closing Date, and concurrently with the execution
and delivery hereof, does hereby assign without recourse all the right, title
and interest of the Company in and to the Uncertificated REMIC I Regular
Interests to the Trustee for the benefit of the Holders of each Class of Trust
Certificates (other than the Class R-I Certificates). The Trustee acknowledges
receipt of the Uncertificated REMIC I Regular Interests and declares that it
holds and will hold the same in trust for the exclusive use and benefit of all
present and future Holders of each Class of Trust Certificates (other than the
Class R-I Certificates). The rights of the Holders of each Class of Trust
Certificates (other than the Class R-I Certificates) to receive distributions
from the proceeds of REMIC II in respect of such Classes, and all ownership
interests of the Holders of such Classes in such distributions, shall be as set
forth in this Agreement.
Section 2.04 Issuance of Certificates Evidencing Interest in REMIC II.
The Trustee acknowledges the assignment to it of the Uncertificated
REMIC I Regular Interests and, concurrently therewith and in exchange therefor,
pursuant to the written request of the Company executed by an officer of the
Company, the Trustee has executed and caused to be authenticated and delivered
to or upon the order of the Company, all Classes of Trust Certificates (other
than the Class R-I Certificates) in authorized denominations, which evidence the
beneficial interest in the entire REMIC II.
Section 2.05 Purposes and Powers of the Trust Fund.
The purpose of the trust, as created hereunder, is to engage in the
following activities:
(a) to sell the Trust Certificates to the Company in exchange for the
Underlying Certificate;
(b) to enter into and perform its obligations under this Agreement;
(c) to engage in those activities that are necessary, suitable or convenient
to accomplish the foregoing or are incidental thereto or connected
therewith; and
18
(d) subject to compliance with this Agreement, to engage in such other
activities as may be required in connection with conservation of the
Trust Fund and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing activities.
The trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
while any Trust Certificate is outstanding without the consent of the
Certificateholders evidencing a majority of the aggregate Voting Rights of the
Trust Certificates.
ARTICLE III
ADMINISTRATION OF THE UNDERLYING CERTIFICATE;
PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01 Administration of the Trust Fund and the Underlying
Certificate.
(a) The REMIC Administrator shall make an election to treat the Trust Fund as
two REMICs under the Code and, if necessary, under applicable state law. The
assets of each REMIC are set forth in this Agreement. Such election will be made
on Form 1066 or other appropriate federal tax or information return (including
Form 8811) or any appropriate state return for the taxable year ending on the
last day of the calendar year in which the Trust Certificates are issued. For
the purposes of the REMIC elections in respect of the Trust Fund, the Trust
Certificates and interests to be designated as the "regular interests" and sole
class of "residual interests" in each REMIC are set forth below.
The REMIC Administrator shall make an election to treat the entire
segregated pool of assets described in the definition of Trust Fund as a REMIC
and shall make an election to treat the pool of assets comprised of the
Uncertificated REMIC I Regular Interests as a REMIC for federal income tax
purposes. The Uncertificated REMIC I Regular Interests will be "regular
interests" in REMIC I and the Class R-I Certificates will be the sole class of
"residual interests" in REMIC I for purposes of the REMIC Provisions (as defined
herein) under the federal income tax law.
The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6,
Class A-7, Class A-8, Class A-9, Class A-10, Class A-11, Class A-12 and Class
A-13 Certificates will be "regular interests" in REMIC II, and the Class R-II
Certificates will be the sole class of "residual interests" therein for purposes
of the REMIC Provisions (as defined herein) under federal income tax law.
(b) The Closing Date is hereby designated as the "startup day" of the Trust Fund
within the meaning of Section 860G(a)(9) of the Code.
(c) The REMIC Administrator shall hold a Class R Certificate representing a
0.01% Percentage Interest in each Class of the Class R Certificates and shall be
designated as "the tax matters person" with respect to each REMIC in the manner
provided under Treasury regulations section 1.860F-4(d) and Treasury regulations
section 301.6231(a)(7)-1. The REMIC Administrator, as tax matters person, shall
(i) act on behalf of each REMIC in relation to any tax matter or controversy
19
involving the Trust Fund and (ii) represent the Trust Fund in any administrative
or judicial proceeding relating to an examination or audit by any governmental
taxing authority with respect thereto. The legal expenses, including without
limitation attorneys' or accountants' fees, and costs of any such proceeding and
any liability resulting therefrom shall be expenses of the Trust Fund and the
REMIC Administrator shall be entitled to reimbursement therefor out of amounts
attributable to the Underlying Certificate on deposit in the Trust Certificate
Account as provided by Section 3.04 unless such legal expenses and costs are
incurred by reason of the REMIC Administrator's willful misfeasance, bad faith
or gross negligence. If the REMIC Administrator is no longer the Trustee
hereunder, at its option the REMIC Administrator may continue its duties as
REMIC Administrator and shall be paid reasonable compensation not to exceed
$3,000 per year by any successor trustee hereunder for so acting as the REMIC
Administrator.
(d) The REMIC Administrator shall prepare or cause to be prepared all of the Tax
Returns that it determines are required with respect to each REMIC created
hereunder and deliver such Tax Returns in a timely manner to the Trustee and the
Trustee shall sign and file such Tax Returns in a timely manner. The expenses of
preparing such returns shall be borne by the REMIC Administrator without any
right of reimbursement therefor. The REMIC Administrator agrees to indemnify and
hold harmless the Trustee with respect to any tax or liability arising from the
Trustee's signing of Tax Returns that contain errors or omissions. The Trustee
and Certificate Administrator shall promptly provide the REMIC Administrator
with such information as the REMIC Administrator may from time to time request
for the purpose of enabling the REMIC Administrator to prepare Tax Returns.
(e) The REMIC Administrator shall provide (i) to any Transferor of a Class R
Certificate such information as is necessary for the application of any tax
relating to the transfer of a Class R Certificate to any Person who is not a
Permitted Transferee, (ii) to the Trustee, and the Trustee shall forward to the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption) and
(iii) to the Internal Revenue Service the name, title, address and telephone
number of the person who will serve as the representative of each REMIC.
(f) The Certificate Administrator and the REMIC Administrator shall take such
actions and shall cause each REMIC created hereunder to take such actions as are
reasonably within the Certificate Administrator's or the REMIC Administrator's
control and the scope of its duties more specifically set forth herein as shall
be necessary or desirable to maintain the status of each REMIC as a REMIC under
the REMIC Provisions (and the Trustee shall assist the Certificate Administrator
and the REMIC Administrator, to the extent reasonably requested by the
Certificate Administrator and the REMIC Administrator to do so). The Certificate
Administrator and the REMIC Administrator shall not knowingly or intentionally
take any action, cause the Trust Fund to take any action or fail to take (or
fail to cause to be taken) any action reasonably within their respective control
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could (i) endanger the status of any portion of any REMIC formed under this
Agreement as a REMIC or (ii) result in the imposition of a tax upon any such
REMIC (including but not limited to the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a
REMIC set forth in Section 860G(d) of the Code) (either such event, in the
20
absence of an Opinion of Counsel or the indemnification referred to in this
sentence, an "Adverse REMIC Event") unless the Certificate Administrator or the
REMIC Administrator, as applicable, has received an Opinion of Counsel (at the
expense of the party seeking to take such action or, if such party fails to pay
such expense, and the Certificate Administrator or the REMIC Administrator, as
applicable, determines that taking such action is in the best interest of the
Trust Fund and the Certificateholders, at the expense of the Trust Fund, but in
no event at the expense of the Certificate Administrator, the REMIC
Administrator or the Trustee) to the effect that the contemplated action will
not, with respect to each REMIC created hereunder, endanger such status or,
unless the Certificate Administrator, the REMIC Administrator or both, as
applicable, determine in its or their sole discretion to indemnify the Trust
Fund against the imposition of such a tax, result in the imposition of such a
tax. Wherever in this Agreement a contemplated action may not be taken because
the timing of such action might result in the imposition of a tax on the Trust
Fund, or may only be taken pursuant to an Opinion of Counsel that such action
would not impose a tax on the Trust Fund, such action may nonetheless be taken
provided that the indemnity given in the preceding sentence with respect to any
taxes that might be imposed on the Trust Fund has been given and that all other
preconditions to the taking of such action have been satisfied. The Trustee
shall not take or fail to take any action (whether or not authorized hereunder)
as to which the Certificate Administrator or the REMIC Administrator, as
applicable, has advised it in writing that it has received an Opinion of Counsel
to the effect that an Adverse REMIC Event could occur with respect to such
action. In addition, prior to taking any action with respect to any REMIC
created hereunder or any related assets thereof, or causing any such REMIC to
take any action, which is not expressly permitted under the terms of this
Agreement, the Trustee will consult with the Certificate Administrator or the
REMIC Administrator, as applicable, or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur with respect to
any such REMIC, and the Trustee shall not take any such action or cause any such
REMIC to take any such action as to which the Certificate Administrator or the
REMIC Administrator, as applicable, has advised it in writing that an Adverse
REMIC Event could occur. The Certificate Administrator or the REMIC
Administrator, as applicable, may consult with counsel to make such written
advice, and the cost of same shall be borne by the party seeking to take the
action not expressly permitted by this Agreement, but in no event at the expense
of the Certificate Administrator or the REMIC Administrator. At all times as may
be required by the Code, the Certificate Administrator will to the extent within
its control and scope of its duties more specifically set forth herein, maintain
substantially all of the assets of each REMIC created hereunder as "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined under Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions" of any
REMIC created hereunder as defined in Section 860F(a)(2) of the Code, on "net
income from foreclosure property" of any such REMIC as defined in Section
860G(c) of the Code, on any contributions to any such REMIC after the startup
day therefor pursuant to Section 860G(d) of the Code, or any other tax is
imposed by the Code or any applicable provisions of state or local tax laws,
such tax shall be charged (i) to the Certificate Administrator, if such tax
arises out of or results from a breach by the Certificate Administrator of any
of its obligations under this Agreement or the Certificate Administrator has in
its sole discretion determined to indemnify the Trust Fund against such tax,
(ii) to the Trustee, if such tax arises out of or results from a breach by the
Trustee of any of its obligations under this Article III, (iii) to the REMIC
Administrator, if in its sole discretion it has determined to indemnify the
21
Trust Fund for such tax; or (iv) otherwise against amounts on deposit in the
Trust Certificate Account as provided hereunder and on the Distribution Date(s)
following such reimbursement the aggregate of such taxes shall be allocated in
reduction of the Accrued Certificate Interest on each Class entitled thereto in
the same manner as if such taxes constituted a Prepayment Interest Shortfall.
(h) The Trustee and the Certificate Administrator shall, for federal income tax
purposes, maintain books and records with respect to each REMIC created
hereunder on a calendar year and on an accrual basis or as otherwise may be
required by the REMIC Provisions.
(i) Following the startup day for the REMIC, neither the Certificate
Administrator nor the Trustee shall accept any contributions of assets to any
REMIC created hereunder unless (subject to Section 3.01(f) hereof) the
Certificate Administrator and the Trustee shall have received an Opinion of
Counsel (at the expense of the party seeking to make such contribution) to the
effect that the inclusion of such assets in such REMIC will not cause the REMIC
to fail to qualify as a REMIC at any time that any Trust Certificates are
outstanding or subject the REMIC to any tax under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(j) Neither the Certificate Administrator nor the Trustee shall (subject to
Section 3.01(f) hereof) enter into any arrangement by which any REMIC created
hereunder will receive a fee or other compensation for services nor permit any
such REMIC to receive any income from assets other than "qualified mortgages" as
defined in Section 860G(a)(3) of the Code or "permitted investments" as defined
in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" by which the Certificate
Principal Balance of each Class of Trust Certificates (other than the Class A-7
Certificates) representing a regular interest in the applicable REMIC and the
rights to the Class A-7 Certificates represented by the Class A-7 Certificate
would be reduced to zero is the Maturity Date for each such Trust Certificate.
(l) Within 30 days after the Closing Date, the REMIC Administrator shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" for each REMIC created hereunder.
(m) Neither the Certificate Administrator nor the Trustee shall (i) sell,
dispose of or substitute for the Underlying Certificate (except in connection
with (A) the default, imminent default or foreclosure of the Underlying
Certificate, (B) the bankruptcy of either REMIC created hereunder, or (C) the
termination of the trust fund relating to the Underlying Certificate pursuant to
Article IX of the Pooling and Servicing Agreement), (ii) acquire any assets for
either REMIC, (iii) sell or dispose of any investments in the Trust Certificate
Account for gain nor accept any contributions to either REMIC after the Closing
Date unless it has received an Opinion of Counsel that such sale, disposition,
substitution or acquisition will not (A) affect adversely the status of either
REMIC as a REMIC or (B) cause either REMIC to be subject to a tax on "prohibited
transactions" or "contributions" pursuant to the REMIC Provisions.
22
(n) The Trustee agrees to indemnify the Trust Fund, the Company, the REMIC
Administrator and the Certificate Administrator for any taxes and costs
including, without limitation, any reasonable attorneys fees imposed on or
incurred by the Trust Fund, the Company or the Certificate Administrator, as a
result of a breach of the Trustee's covenants set forth in Article V or this
Article III.
(o) The REMIC Administrator agrees to indemnify the Trust Fund, the Company, the
Certificate Administrator and the Trustee for any taxes and costs (including,
without limitation, any reasonable attorneys' fees) imposed on or incurred by
the Trust Fund, the Company, the Certificate Administrator or the Trustee, as a
result of a breach of the REMIC Administrator's covenants set forth in this
Article III with respect to compliance with the REMIC Provisions, including
without limitation, any penalties arising from the Trustee's execution of Tax
Returns prepared by the REMIC Administrator that contain errors or omissions;
provided, however, that such liability will not be imposed to the extent such
breach is a result of an error or omission in information provided to the REMIC
Administrator by the Certificate Administrator in which case Section 3.01(p)
will apply.
(p) The Certificate Administrator agrees to indemnify the Trust Fund, the
Company, the REMIC Administrator and the Trustee for any taxes and costs
(including, without limitation, any reasonable attorneys' fees) imposed on or
incurred by the Trust Fund, the Company, the REMIC Administrator or the Trustee,
as a result of a breach of the Certificate Administrator's covenants set forth
in this Article III with respect to compliance with the REMIC Provisions,
including without limitation, any penalties arising from the Trustee's execution
of Tax Returns prepared by the Certificate Administrator that contain errors or
omissions.
Section 3.02 Collection of Monies.
Except as otherwise provided in Section 6.01, upon its receipt of a
Notice of Final Distribution, the Trustee shall present and surrender the
Underlying Certificate, for final payment thereon in accordance with the terms
and conditions of Pooling and Servicing Agreement and such Notice of Final
Distribution. The Trustee shall promptly deposit in the Trust Certificate
Account the final distribution received upon presentation and surrender of the
Underlying Certificate.
Section 3.03 Establishment of Trust Certificate Account; Deposits in Trust
Certificate Account.
(a) The Trustee shall establish and maintain the Trust Certificate Account.
The Trustee shall cause the following payments and collections in
respect of the Underlying Certificate to be deposited directly into the
Trust Certificate Account:
(i) all distributions due and received on the Underlying Certificate
subsequent to the Closing Date;
(ii) any amounts received in connection with the sale of the Underlying
Certificate pursuant to Section 6.01 in accordance with a plan of
complete liquidation of the Trust Fund; and
23
(iii) any other amounts specifically required to be deposited in the Trust
Certificate Account hereunder.
The foregoing requirements for deposit in the Trust Certificate Account
shall be exclusive.
(b) Funds in the Trust Certificate Account shall be held uninvested.
Section 3.04 Permitted Withdrawals From the Trust Certificate Account.
The Trustee may from time to time withdraw funds from the Trust
Certificate Account for the following purposes:
(i) to make distributions in the amounts and in the manner provided for in
Section 3.05;
(ii) to reimburse the Certificate Administrator, Company or the Trustee for
expenses incurred by and reimbursable to the Certificate Administrator,
Company or the Trustee pursuant to Section 3.01(c) or 7.03 or as
otherwise permitted under this Agreement;
(iii) to pay the Certificate Administrator its Certificate Administrator Fee;
and
(iv) to clear and terminate the Trust Certificate Account upon the
termination of this Agreement.
Section 3.05 Distributions.
(a) On each Distribution Date the Trustee shall distribute, based on
information received from the Certificate Administrator, to each
Certificateholder of record on the related Record Date (other than as provided
in Section 6.01 respecting the final distribution) either in immediately
available funds (by wire transfer or otherwise) to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder has so notified the Trustee, or, if such
Certificateholder has not so notified the Trustee by the Record Date, by check
mailed to such Certificateholder at the address of such Holder appearing in the
Certificate Register such Certificateholder's share (which shall be based on the
aggregate of the Percentage Interests represented by Trust Certificates of the
applicable Class held by such Holder) of the following amounts, in the following
order of priority (subject to the provisions of Sections 3.05(a)(iv) and (v)
below), in each case to the extent of the Available Funds remaining:
(i) (A) Prior to the occurrence of the Credit Support Depletion Date
to the Class A Certificates (other than the Class A-10 Certificates and
Class A-13 Certificates), on a pro rata basis, any Accrued Certificate
Interest payable on such Trust Certificates with respect to such
Distribution Date, plus any Accrued Certificate Interest thereon remaining
unpaid from any previous Distribution Date, and (B) on or after the
occurrence of the Credit Support Depletion Date, to the Class A
Certificates (other than the Class A-13 Certificates), on a pro rata basis,
any Accrued Certificate Interest payable on such Trust Certificates with
24
respect to such Distribution Date, plus any Accrued Certificate Interest
thereon remaining unpaid from any previous Distribution Date.
(ii) Prior to the occurrence of the Credit Support Depletion Date, an
amount equal to the Accrual Distribution Amount shall be distributed,
sequentially, to the Class A-8, Class A-9 and Class A-10 Certificates, in
that order, in each case until the Certificate Principal Balance thereof
has been reduced to zero.
(iii) Prior to the occurrence of the Credit Support Depletion Date, an
amount equal to the balance of the Principal Distribution Amount remaining
after the distributions, if any, described in clause 3.05(a)(ii) above
shall be distributed concurrently as follows:
(A) 0.095238094% to the Class A-13 Certificates until the Certificate
Principal Balance thereof has been reduced to zero; and
(B) 99.904761906% shall be applied in the following order of priority:
(1) first, to the Class R-I and Class R-II Certificates, pro
rata, according to their Certificate Principal Balances, until the
Certificate Principal Balances thereof have been reduced to zero;
(2) second, to the Class A-11 and Class A-12 Certificates, pro
rata, according to their Certificate Principal Balances, in reduction
of the Certificate Principal Balances thereof, in an amount equal to
the Lockout Percentage of the Lockout Certificate Share of the
Principal Distribution Amount available for distribution pursuant to
clause (a)(iii)(B) above;
(3) third, concurrently as follows:
(i) 90.1345357996% to the Class X-0, Xxxxx X-0, Class A-5
and Class A-6 Certificates, pro rata, according to their
Certificate Principal Balances, until the Certificate Principal
Balances thereof have been reduced to zero; and
(ii) 9.8654642004% sequentially, to the Class A-1 and Class
A-2 Certificates, in that order, in each case until the
Certificate Principal Balance thereof has been reduced to zero;
(4) fourth, sequentially to Class A-8, Class A-9 and Class A-10
Certificates, in that order, in each case until the Certificate
Principal Balance thereof has been reduced to zero; and
(5) fifth, to the Class A-11 and Class A-12 Certificates, pro
rata, according to their Certificate Principal Balances, in reduction
of the Certificate Principal Balances, without regard to the Lockout
25
Percentage of the Lockout Certificate Share, until the Certificate
Principal Balances thereof have been reduced to zero.
(iv) On or after the occurrence of the Credit Support Depletion Date
but prior to the reduction of the Certificate Principal Balance of the
Senior Support Certificates to zero, all priorities relating to
distributions as described in clause (a) above relating to principal among
the Class A Certificates, shall be disregarded. Instead, the Principal
Distribution Amount shall be distributed to the Class A Certificates
remaining, other than the Class A-7 Certificates, pro rata, in accordance
with their respective outstanding Certificate Principal Balances; provided
that the aggregate amount distributable to the Class A-11 and Class A-12
Certificates in respect of the aggregate Accrued Certificate Interest
thereon and in respect of their aggregate pro rata portion of the Principal
Distribution Amount shall be distributed among those Certificates in the
following priority: first, to the Class A-11 Certificates, up to an amount
equal to the Accrued Certificate Interest thereon; second, to the Class
A-11 Certificates, up to an amount equal to the Super Senior Optimal
Principal Distribution Amount thereon, in reduction of the Certificate
Principal Balance thereof until the Certificate Principal Balance thereof
has been reduced to zero; third, to the Class A-12 Certificates, up to an
amount equal to the Accrued Certificate Interest thereon; and fourth, to
the Class A-12 Certificates, the remainder of such distributable amounts,
until the Certificate Principal Balance thereof has been reduced to zero.
(v) On or after the occurrence of the Credit Support Depletion Date
and upon reduction of the Certificate Principal Balance of the Senior
Support Certificates to zero, all priorities relating to distributions as
described in clause (a) above in respect of principal among the Class A
Certificates shall be disregarded. Instead, the Principal Distribution
Amount shall be distributed to the offered certificates remaining, other
than the Class A-7 Certificates, pro rata in accordance with their
respective outstanding Certificate Principal Balances.
(b) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be solely
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm") for which it acts as agent. Each brokerage
firm shall be responsible for disbursing funds to the Certificate Owners that it
represents. None of the Trustee, the Certificate Registrar, the Company or the
Certificate Administrator shall have any responsibility therefor.
(c) Except as otherwise provided in Section 6.01, if the Certificate
Administrator anticipates that a final distribution with respect to any Class of
Trust Certificates will be made on the next Distribution Date, the Certificate
Administrator shall, no later than the fifteen days prior to such final
distribution, notify the Trustee and the Trustee shall, no later than two (2)
Business Days after such notification, mail on such date to each Holder of such
Class of Trust Certificates a notice to the effect that: (i) the Trustee
anticipates that the final distribution with respect to such Class of Trust
Certificates will be made on such Distribution Date but only upon presentation
26
and surrender of such Trust Certificates at the office of the Trustee specified
therein or as otherwise specified therein, and (ii) no interest shall accrue on
such Trust Certificates from and after the end of the related Interest Accrual
Period. In the event that Certificateholders required to surrender their Trust
Certificates pursuant to Section 6.01(b) do not surrender their Trust
Certificates for final cancellation, the Trustee shall cause funds distributable
with respect to such Trust Certificates to be withdrawn from the Trust
Certificate Account and credited to a separate escrow account for the benefit of
such Certificateholders as provided in Section 6.01(b). The funds in such escrow
account shall not be invested.
(d) On each Distribution Date preceding the Credit Support Depletion
Date, Accrued Certificate Interest that would otherwise be distributed to the
Class A-10 Certificates as interest will be added to the Certificate Principal
Balance of the Class A-10 Certificates and such amount will thereafter accrue
interest at a rate of 5.25% per annum. On each Distribution Date on or after the
Credit Support Depletion Date, the entire amount of Accrued Certificate Interest
on the Class A-10 Certificates for such date will be payable to the holders of
the Class A-10 Certificates as a distribution of interest and will not be added
to the Certificate Principal Balance thereof.
Section 3.06 Statements to Certificateholders.
(a) Concurrently with each distribution charged to the Trust Certificate
Account and with respect to each Distribution Date the Certificate
Administrator shall forward to the Trustee and the Trustee shall either
forward by mail or make available to each Holder and the Company, via
the Trustee's internet website, a statement (and at its option, any
additional files containing the same information in an alternative
format) setting forth the following information as to each Class of
Trust Certificates:
(i) the Available Funds for such Distribution Date;
(ii) with respect to such Distribution Date, the aggregate amount of Accrued
Certificate Interest, the Pass-Through Rate and the aggregate Principal
Distribution Amount and the amounts of principal and interest
distributed to the Certificateholders of each Class of Trust
Certificates on such Distribution Date pursuant to Section 3.05;
(iii) the aggregate amount of distributions on the Class R Certificate on such
Distribution Date pursuant to Section 3.05, if any;
(iv) the Certificate Principal Balance or Notional Amount, as applicable, of
each Class of the Class A Certificates after giving effect to
distributions of principal of such Trust Certificates on such
Distribution Date;
(v) the Underlying Certificate Balance as of such Distribution Date, after
giving effect to the distribution of principal made thereon and the
amount of any Realized Losses with respect to the Underlying Certificate
applied to reduce the Underlying Certificate Balance thereof on such
Distribution Date;
(vi) the Accrual Distribution Amount; and
27
(vii) the amount of any reductions in the Certificate Principal Balance of the
Class A Certificates by the Class A Loss Amount and the Class A Excess
Loss Amount, if any.
The Trustee shall mail to each Holder that requests a paper copy by
telephone a paper copy via first class mail. The Trustee may modify the
distribution procedures set forth in this Section 3.06 provided that such
procedures are no less convenient for the Certificateholders. The Trustee shall
provide prior notification to the Company, the Certificate Administrator and the
Certificateholders regarding any such modification. In addition, the Certificate
Administrator shall provide to any manager of a trust fund consisting of some or
all of the Trust Certificates, upon reasonable request, such additional
information as is reasonably obtainable by the Certificate Administrator at no
additional expense to the Certificate Administrator.
(b) In addition, the Trustee promptly will furnish to Certificateholders copies
of any notices, statements, reports or other communications including, without
limitation, the Underlying Distribution Date Statements, received by the Trustee
as the Underlying Certificateholder.
(c) Within a reasonable period of time after the end of each calendar year, the
Certificate Administrator shall prepare, or cause to be prepared, and shall
forward, or cause to be forwarded, to each Person who at any time during the
calendar year was the Holder of a Trust Certificate, other than a Class R
Certificate, a statement containing the information set forth in clause (a)(ii)
above aggregated for such calendar year or applicable portion thereof during
which such Person was a Certificateholder. Such obligation of the Certificate
Administrator shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Certificate
Administrator pursuant to any requirements of the Code.
(d) Within a reasonable period of time after the end of each calendar year, the
Certificate Administrator shall prepare, or cause to be prepared, and shall
forward, or cause to be forwarded, to each Person who at any time during the
calendar year was the Holder of a Class R Certificate, a statement containing
the applicable distribution information provided pursuant to this Section
(a)(iii) aggregated for such calendar year or applicable portion thereof during
which such Person was the Holder of a Class R Certificate. Such obligation of
the Certificate Administrator shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Certificate Administrator pursuant to any requirements of the Code.
(e) The Certificate Administrator shall, on behalf of the Company and in respect
of the Trust Fund, sign and cause to be filed with the Securities and Exchange
Commission any periodic reports required to be filed under the provisions of the
Exchange Act, and the rules and regulations of the Commission thereunder. In
connection with the preparation and filing of such periodic reports, the Trustee
shall timely provide to the Certificate Administrator (i) a list of
Certificateholders as shown on the Certificate Register as of the end of each
calendar year, (ii) copies of all pleadings, other legal process and any other
documents relating to any claims, charges or complaints involving the Trustee,
as trustee hereunder, or the Trust Fund that are received by the Trustee, (iii)
notice of all matters that, to the actual knowledge of a Responsible Officer of
the Trustee, have been submitted to a vote of the Certificateholders, other than
28
those matters that have been submitted to a vote of the Certificateholders at
the request of the Company or the Certificate Administrator, and (iv) notice of
any failure of the Trustee to make any distribution to the Certificateholders as
required pursuant to this Agreement. Neither the Certificate Administrator nor
the Trustee shall have any liability with respect to the Certificate
Administrator's failure to properly prepare or file such periodic reports
resulting from or relating to the Certificate Administrator's inability or
failure to obtain any information not resulting from the Certificate
Administrator's own negligence or willful misconduct. Any Form 10-K filed with
the Commission in connection with this Section 3.06(e) shall include a
certification, signed by the senior officer in charge of the servicing functions
of the Certificate Administrator, in the form attached as Exhibit E hereto or
such other form as may be required or permitted by the Commission (the "Form
10-K Certification"), in compliance with Rules 13a-14 and 15d-14 under the
Exchange Act and any additional directives of the Commission. In connection with
the Form 10-K Certification, the Trustee shall provide the Certificate
Administrator with a back-up certification substantially in the form attached
hereto as Exhibit F. This Section 3.06(e) may be amended in accordance with this
Agreement without the consent of the Certificateholders.
Section 3.07 Access to Certain Documentation and Information.
The Trustee shall provide to the Certificateholders access to the Trust
Certificates and all reports, documents and records maintained by the Trustee in
respect of its duties hereunder, such access being afforded without charge but
only upon reasonable written request no less than two Business Days prior to
such access and during normal business hours at offices designated by the
Trustee.
Section 3.08 Sale of Defective Assets.
Upon the discovery by, or written notice to, the Company or the Trustee
that the Underlying Certificate is not a REMIC regular interest or that any
other asset of the REMIC is not a permitted asset of the REMIC, the party
discovering such fact shall give prompt written notice to the other party. The
Trustee shall sell such Underlying Certificate (or other asset, as the case may
be) upon the terms and at the direction of the Company within 90 days of such
discovery and any tax resulting therefrom not borne by the Trustee pursuant to
Article V hereof shall be payable out of the Trust Fund.
Section 3.09 Modification of Underlying Certificate.
Notwithstanding any contrary provision herein, the Trustee will not
permit the modification of the Underlying Certificate unless (a) such
modification is in accordance with the Pooling and Servicing Agreement and (b)
the Trustee has received an Opinion of Counsel (which shall not be an expense of
the Trustee) that such modification would not endanger the status of the REMIC
as a REMIC.
Section 3.10 Distributions of Uncertificated REMIC I Regular Interests.
(a) On each Distribution Date the Trustee shall be deemed to distribute to
itself, as the holder of the Uncertificated REMIC I Regular Interests on
behalf of REMIC II, the following amounts in the following order of
priority to the extent of the Available Funds reduced by distributions
made to the Class R-I Certificates pursuant to Section 3.05(a):
29
(i) Uncertificated Accrued Interest on the Uncertificated REMIC I Regular
Interests for such Distribution Date, plus any Uncertificated Accrued
Interest thereon remaining unpaid from any previous Distribution Date;
and
(ii) in accordance with the priority set forth in Section 3.10(b), an amount
equal to the sum of the amounts in respect of principal distributable on
each Class of Trust Certificates (other than the Class R-I Certificates)
under Section 3.05(a), as allocated thereto pursuant to Section 3.05(a).
(b) The amount described in Section 3.10(a)(ii) shall be deemed distributed
to (i) Uncertificated REMIC I Regular Interest V, (ii) Uncertificated
REMIC I Regular Interest W, (iii) Uncertificated REMIC I Regular
Interest X, (iv) Uncertificated REMIC I Regular Interest Y, and (v)
Uncertificated REMIC I Regular Interest Z with the amount to be
distributed allocated among such interests in accordance with the
priority assigned to each Related Class of Trust Certificates (other
than the Class R-I Certificates), respectively, under Section 3.05(a)
until the Uncertificated Principal Balance of each such interest is
reduced to zero.
(c) The portion of the Uncertificated REMIC I Regular Interest Distribution
Amounts described in Section 3.10(a)(ii) shall be deemed distributed by
REMIC I to REMIC II in accordance with the priority assigned to the
REMIC II Certificates relative to that assigned to the REMIC I
Certificates under Section 3.05(a).
(d) In determining from time to time the Uncertificated REMIC I Regular
Interest Distribution:
(i) Class A Loss Amounts and Class A Excess Loss Amounts allocated to the
Class A-1, Class A-2, Class A-4, Class A-8, Class A-9, Class A-10, Class
A-11 and Class A-12 Certificates shall be deemed allocated to
Uncertificated REMIC I Regular Interest V;
(ii) Class A Loss Amounts and Class A Excess Loss Amounts allocated to the
Class A-3 Certificates shall be deemed allocated to Uncertificated REMIC
I Regular Interest W;
(iii) Class A Loss Amounts and Class A Excess Loss Amounts allocated to the
Class A-5 Certificates shall be deemed allocated to Uncertificated REMIC
I Regular Interest X;
(iv) Class A Loss Amounts and Class A Excess Loss Amounts allocated to the
Class A-6 and Class A-7 Certificates shall be deemed allocated to
Uncertificated REMIC I Regular Interest Y; and
(v) Class A Loss Amounts and Class A Excess Loss Amounts allocated to the
Class A-13 Certificates shall be deemed allocated to Uncertificated
REMIC I Regular Interest Z.
(e) On each Distribution Date the Trustee shall be deemed to distribute from
REMIC II, in the priority set forth in Section 3.05(a), to the Holders
30
of each Class of Trust Certificates (other than the Class R-I
Certificates) the amounts distributable thereon from the Uncertificated
REMIC I Regular Interest Distribution Amounts deemed to have been
received by REMIC II from REMIC I under this Section 3.10.
(f) Notwithstanding the deemed distributions on the Uncertificated REMIC I
Regular Interests described in this Section 3.10, distributions of funds
from the Certificate Trust Account shall be made only in accordance with
Section 3.05.
Section 3.11 Allocation of Class A Loss Amounts.
Class A Loss Amounts will be allocated to the Class A Certificates on a
pro rata basis in accordance with their respective Certificate Principal
Balances; provided, however, that on or after the Credit Support Depletion Date,
such losses otherwise allocable to the Class A-11 Certificates will be allocated
to the Class A-12 Certificates until the Certificate Principal Balance of the
Class A-12 Certificates has been reduced to zero. For purposes of determining
"pro rata," the Certificate Principal Balance of the Accrual Certificates shall
be deemed to be the lesser of (a) the related Certificate Principal Balance
thereof as of the Closing Date or (b) the related Certificate Principal Balance
thereof as of such date of determination.
Section 3.12 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Trustee shall
comply with all federal withholding requirements respecting payments to
Certificateholders, including interest or original issue discount payments or
advances thereof that the Trustee reasonably believes are applicable under the
Code. The consent of Certificateholders shall not be required for such
withholding. In the event the Trustee does withhold any amount from interest or
original issue discount payments or advances thereof to any Certificateholder
pursuant to federal withholding requirements, the Trustee shall indicate the
amount withheld to such Certificateholder pursuant to the terms of such
requirements.
Section 3.13 Determination of LIBOR.
On each LIBOR Rate Adjustment Date, the Trustee shall determine LIBOR
for the Interest Accrual Period related to the next Distribution Date. As to any
Interest Accrual Period, other than the first Interest Accrual Period, LIBOR
will equal the rate for United States dollar deposits for one month which
appears on the Telerate Screen Page 3750 of the Telerate Capital Markets Report
as of 11:00 A.M., London time, on the related LIBOR Rate Adjustment Date. If
such rate does not appear on such page (or such other page as may replace that
page on that service, or if such service is no longer offered, such other
service for displaying LIBOR or comparable rates as may be selected by the
Trustee after consultation with the Certificate Administrator), the rate will be
the Reference Bank Rate. The Trustee will request the principal London office of
each of the reference banks to provide a quotation of its rate. If at least two
such quotations are provided, the rate will be the arithmetic mean of the
quotations. If on such date fewer than two quotations are provided as requested,
the rate will be the arithmetic mean of the rates quoted by one or more major
banks in New York City, selected by the Trustee after consultation with the
Certificate Administrator, as of 11:00 A.M., New York City time, on such date
for loans in U.S. Dollars to leading European banks for a period of one month in
31
amounts approximately equal to the aggregate Certificate Principal Balance of
the Variable Rate Certificates then outstanding. If no such quotations can be
obtained, the rate will be LIBOR for the prior Distribution Date, or, in the
case of the first LIBOR Rate Adjustment Date, 1.12%; provided, however, if,
under the priorities described above, LIBOR for a Distribution Date would be
based on LIBOR for the previous Distribution Date for the third consecutive
Distribution Date, the Trustee shall select an alternative comparable index
(over which the Trustee has no control), used for determining one-month
Eurodollar lending rates that is calculated and published (or otherwise made
available) by an independent party.
The establishment of LIBOR by the Trustee and the Trustee's subsequent
calculation of the Pass-Through Rates applicable to the Variable Rate
Certificates for the relevant Interest Accrual Period, in the absence of
manifest error, will be final and binding.
ARTICLE IV
THE TRUST CERTIFICATES
Section 4.01 The Trust Certificates.
The Class A and Class R Certificates shall be substantially in the forms
set forth in Exhibits A and B, respectively, and shall, on original issue, be
executed and delivered by the Trustee to the Certificate Registrar for
authentication and delivery to or upon the order of the Company upon receipt by
the Trustee of the documents specified in Section 2.01. The Trust Certificates
shall be issuable in the minimum denominations designated in the Preliminary
Statement hereto.
The Trust Certificates shall be executed by manual or facsimile
signature on behalf of an authorized officer of the Trustee. Trust Certificates
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Trustee shall bind the Trustee, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Trust Certificate or did not hold such
offices at the date of such Trust Certificates. No Trust Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Trust Certificate a certificate of authentication
substantially in the form provided for herein executed by the Certificate
Registrar by manual signature, and such certificate upon any Trust Certificate
shall be conclusive evidence, and the only evidence, that such Trust Certificate
has been duly authenticated and delivered hereunder. All Trust Certificates
shall be dated the date of their authentication.
The Class A Certificates shall initially be issued as one or more Trust
Certificates registered in the name of the Depository or its nominee and, except
as provided below, registration of such Trust Certificates may not be
transferred by the Trustee except to another Depository that agrees to hold such
Trust Certificates for the respective Certificate Owners with Ownership
Interests therein. The Holders of the Book-Entry Certificates shall hold their
respective Ownership Interests in and to each of the Book-Entry Certificates
through the book-entry facilities of the Depository and, except as provided
below, shall not be entitled to Definitive Certificates in respect of such
Ownership Interests. All transfers by Certificate Owners of their respective
32
Ownership Interests in the Book-Entry Certificates shall be made in accordance
with the procedures established by the Depository Participant or brokerage firm
representing such Certificate Owner. Each Depository Participant shall transfer
the Ownership Interests only in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
Except as provided below, registration of Book-Entry Certificates may
not be transferred by the Trustee except to another Depository that agrees to
hold such Trust Certificates for the respective Certificate Owners with
Ownership Interests therein. The Holders of the Book-Entry Certificates shall
hold their respective Ownership Interests in and to each of such Trust
Certificates through the book-entry facilities of the Depository and, except as
provided below, shall not be entitled to Definitive Certificates in respect of
such Ownership Interests. All transfers by Certificate Owners of their
respective Ownership Interests in the Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owner. Each Depository Participant
shall transfer the Ownership Interests only in the Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
The Trustee, the Certificate Administrator and the Company may for all
purposes (including the making of payments due on the respective Classes of
Book-Entry Certificates) deal with the Depository as the authorized
representative of the Certificate Owners with respect to the respective Classes
of Book-Entry Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the respective Classes of Book-Entry Certificates shall be limited to those
established by law and agreements between such Certificate Owners and the
Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository as
Holder of any Class of Book-Entry Certificates with respect to any particular
matter shall not be deemed inconsistent if they are made with respect to
different Certificate Owners. The Trustee may establish a reasonable record date
in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
If (i)(A) the Company advises the Trustee in writing that the Depository
is no longer willing or able to properly discharge its responsibilities as
Depository and (B) the Company is unable to locate a qualified successor or (ii)
the Company at its option advises the Trustee in writing that it elects to
terminate the book-entry system through the Depository, the Trustee shall notify
all Certificate Owners, through the Depository, of the occurrence of any such
event and of the availability of Definitive Certificates to Certificate Owners
requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration of transfer, the Trustee shall issue the
Definitive Certificates. Neither the Company, the Certificate Administrator nor
the Trustee shall be liable for any actions taken by the Depository or its
nominee, including, without limitation, any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Company in
connection with the issuance of the Definitive Certificates pursuant to this
Section 4.01 shall be deemed to be imposed upon and performed by the Trustee,
33
and the Trustee and the Certificate Administrator shall recognize the Holders of
the Definitive Certificates as Certificateholders hereunder.
Section 4.02 Registration of Transfer and Exchange of Trust Certificates.
(a) The Trustee shall cause to be kept at one of the offices or
agencies to be appointed by the Trustee in accordance with the
provisions of this Section 4.02, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Trust Certificates
and of transfers and exchanges of Trust Certificates as herein
provided. Upon satisfaction of the conditions set forth below,
the Trustee shall execute and the Certificate Registrar shall
authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Trust Certificates of
a like Class and aggregate Percentage Interest. In addition, the
Trustee shall notify the Company of each transfer or exchange of
the Trust Certificates.
(b) At the option of the Certificateholders, Trust Certificates may
be exchanged for other Trust Certificates of authorized
denominations of a like Class and aggregate Percentage Interest,
upon surrender of the Trust Certificates to be exchanged at any
such office or agency. Whenever any Trust Certificates are so
surrendered for exchange the Trustee shall execute and the
Certificate Registrar shall authenticate and deliver the Trust
Certificates of such Class which the Certificateholder making the
exchange is entitled to receive. Every Trust Certificate
presented or surrendered for transfer or exchange shall (if so
required by the Trustee or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by, the Holder thereof or his attorney
duly authorized in writing.
(c) (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. 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 United States Person and a Permitted Transferee
and shall promptly notify the 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 to a United States Person, the Trustee 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" attached hereto as Exhibit C-1) from the
proposed Transferee, representing and warranting, among other things, that
it is a United States Person, that such Transferee 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
34
will endeavor to remain a Permitted Transferee, and that it has reviewed
the provisions of this Section 4.02(c) and agrees to be bound by them and
(II) a certificate, attached hereto as Exhibit C-2, from the Holder wishing
to transfer the Class R Certificate, 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 the Trustee 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 Trustee in the
form attached hereto as Exhibit C-2.
(E) Each Person holding or acquiring an Ownership Interest in a Class
R Certificate, by purchasing an Ownership Interest in such Trust
Certificate, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of Temporary Treasury
Regulations 1.67-3T(a)(2)(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."
(ii) The Trustee will register the Transfer of any Class R Certificate only
if it shall have received the Transfer Affidavit and Agreement, a certificate of
the Holder requesting such transfer in the form attached hereto as Exhibit C-2
and all of such other documents as shall have been reasonably required by the
Trustee as a condition to such registration. Transfers of the Class R
Certificate to Non-United States Persons and Persons other than Permitted
Transferees are prohibited.
(iii) The Trustee 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 4.02(c) or for making any payments due on such Trust Certificate
to the holder thereof or for taking any other action with respect to such holder
under the provisions of this Agreement.
(iv) The Certificate Administrator, on behalf of the Trustee, shall make
available all information necessary to compute any tax imposed (A) as a result
of the Transfer of an Ownership Interest to any Person who is not a Permitted
Transferee, including the information regarding "excess inclusions" of such
Class R Certificate required to be provided to the Internal Revenue Service and
certain Persons as described in Treasury Regulation 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
organizations described in Section 1381 of the Code having as among its record
holders at any time any Person who is not a Permitted Transferee. Reasonable
compensation for providing such information may be required by the Certificate
Administrator.
35
(v) The provisions of this Section 4.02(c) set forth prior to this
Section (v) may be modified, added or eliminated, provided that
the following shall have been delivered to the Trustee:
(A) a written notification from the Rating Agency to the effect that
the modification, addition or elimination of such provisions will not cause
such Rating Agency to downgrade its then-current ratings of the Trust
Certificates; and
(B) subject to Section 3.01(f) hereof, an Opinion of Counsel, which
shall not be an expense of the Trustee, to the effect that such
modification, addition or absence of such provisions will not cause the
Trust Fund to cease to qualify as a REMIC and will not cause (x) the Trust
Fund to be subject to an entity-level tax caused by the Transfer of any
Class R Certificate to a Person that is not a Permitted Transferee 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 Non-United States
Person or a Person that is not a Permitted Transferee.
(d) In the case of any Class R Certificate presented for registration in
the name of any Person, either (A) the Trustee shall require an Opinion of
Counsel acceptable to and in form and substance satisfactory to the Trustee, the
Company and the Certificate Administrator to the effect that the purchase or
holding of such Class R Certificate is permissible under applicable law, will
not constitute or result in any 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 (or comparable provisions of any
subsequent enactments), and will not subject the Trustee, the Company or the
Certificate Administrator to any obligation or liability (including obligations
or liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Company or the Certificate Administrator or (B) the
prospective Transferee shall be required to provide the Trustee, the Company and
the Certificate Administrator with a certification to the effect set forth in
paragraph fourteen of Exhibit C-1, which the Trustee may rely upon without
further inquiry or investigation, or such other certifications as the Trustee
may deem desirable or necessary in order to establish that such Transferee or
the Person in whose name such registration is requested is not an employee
benefit plan or other plan subject to the prohibited transaction provisions of
ERISA or Section 4975 of the Code, or any Person (including an investment
manager, a named fiduciary or a trustee of any such plan) who is using "plan
assets" of any such plan to effect such acquisition (each, a "Plan Investor").
(e) No service charge shall be made for any transfer or exchange of Trust
Certificates of any Class, but the Trustee 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 Trust Certificates.
36
(f) All Trust Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar in accordance with its customary
procedures.
Section 4.03 Mutilated, Destroyed, Lost or Stolen Trust Certificates.
If (i) any mutilated Trust Certificate is surrendered to the Certificate
Registrar, or the Trustee and the Certificate Registrar receive evidence to
their satisfaction of the destruction, loss or theft of any Trust Certificate,
and (ii) there is delivered to the Trustee and the Certificate Registrar such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Trustee or the Certificate Registrar that
such Trust Certificate has been acquired by a bona fide purchaser, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Certificate, a new Trust Certificate of like tenor, Class and Percentage
Interest but bearing a number not contemporaneously outstanding. Upon the
issuance of any new Trust Certificate under this Section, the Trustee may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any duplicate Trust Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the Trust Fund, as
if originally issued, whether or not the lost, stolen or destroyed Trust
Certificate shall be found at any time.
Section 4.04 Persons Deemed Owners.
Prior to due presentation of a Trust Certificate for registration of
transfer, the Company, the Trustee, the Certificate Registrar and any agent of
the Company, the Trustee or the Certificate Registrar may treat the Person in
whose name any Trust Certificate is registered as the owner of such Trust
Certificate for the purpose of receiving distributions pursuant to Section 3.05
and for all other purposes whatsoever, and neither the Company, the Trustee, the
Certificate Registrar nor any agent of the Company, the Trustee or the
Certificate Registrar shall be affected by notice to the contrary.
ARTICLE V
THE TRUSTEE
Section 5.01 Duties of the Trustee.
(a) The Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement.
(b) The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement and, if applicable, the Pooling
and Servicing Agreement. The Trustee shall notify the Certificateholders of any
such documents which do not materially conform to the requirements of this
Agreement or the Pooling and Servicing Agreement in the event that the Trustee,
after so requesting, does not receive satisfactorily corrected documents or a
satisfactory explanation regarding any such nonconformities.
37
The Trustee shall forward or cause to be forwarded in a timely fashion
the notices, reports and statements required to be forwarded by the Trustee
pursuant to this Agreement. The Trustee shall furnish in a timely fashion to the
Certificate Administrator such information as the Certificate Administrator may
reasonably request from time to time for the Certificate Administrator to
fulfill its duties as set forth in this Agreement. The Trustee covenants and
agrees that it shall perform its obligations hereunder in a manner so as to
maintain the status of any portion of any REMIC formed under this Agreement as a
REMIC under the REMIC Provisions and (subject to Section 3.01(f) hereof) to
prevent the imposition of any federal, state or local income, prohibited
transaction, contribution or other tax on the Trust Fund to the extent that
maintaining such status and avoiding such taxes are reasonably within the
control of the Trustee and are reasonably within the scope of its duties under
this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) The duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
by the Company to the Trustee and which on their face, do not contradict
the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Certificateholders of any Class holding Trust
Certificate which evidence, as to such Class, Percentage Interests
aggregating not less than 25% as to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement;
(iv) The Trustee shall not be charged with knowledge of any default under the
Pooling and Servicing Agreement unless a Responsible Officer of the
Trustee assigned to and working in the Corporate Trust Office obtains
actual knowledge of such failure or event or the Trustee receives
written notice of such failure or event at its Corporate Trust Office
from the Company or any Certificateholder; and
(v) No provision in this Agreement shall require the Trustee to expend or
risk its own funds or otherwise incur any personal financial liability
38
in the performance of any of its duties as Trustee hereunder, or in the
exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that repayment of funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) The Trustee shall timely pay, from its own funds, the amount of any and
all federal, state and local taxes imposed on the Trust Fund or its
assets or transactions including, without limitation, (A) "prohibited
transaction" penalty taxes as defined in Section 860F of the Code, if,
when and as the same shall be due and payable, (B) any tax on
contributions to a REMIC after the Closing Date imposed by Section
860G(d) of the Code and (C) any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, but only if such
taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or willful misconduct of the
Trustee.
Section 5.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 5.01:
(i) The Trustee may request and may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and any written advice of its
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Agreement or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or
thereby;
(iv) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) The Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by Holders of Trust
Certificates of any Class evidencing, as to such Class, Percentage
Interests aggregating not less than 50%; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such expense or liability as a
39
condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Certificateholder requesting the
investigation; and
(vi) The Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or
attorneys.
(b) Following the issuance of the Trust Certificates, the Trustee shall not
accept any contribution of assets to the Trust Fund unless it shall have
obtained or been furnished with an Opinion of Counsel from the party
seeking to contribute assets and at such party's expense to the effect
that such contribution will not (i) cause the Trust Fund to fail to
qualify as a REMIC at any time that any Trust Certificates are
outstanding or (subject to Section 3.01(f) hereof) (ii) cause the Trust
Fund to be subject to any tax as a result of such contribution
(including the imposition of any tax on "prohibited transactions" of the
Trust Fund imposed under Section 860F(a) of the Code).
Section 5.03 Trustee Not Liable for Trust Certificates or Underlying
Certificate.
The recitals contained herein and in the Trust Certificates (other than
the execution of the Trust Certificates and relating to the acceptance and
receipt of the Underlying Certificate) shall be taken as the statements of the
Company or the Certificate Administrator as the case may be, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Trust Certificates (except that the Trust Certificates shall be duly and validly
executed by it as Trustee and authenticated by it as Certificate Registrar) or
of the Underlying Certificate of any related document. Except as otherwise
provided herein, the Trustee shall not be accountable for the use or application
by the Company or the Certificate Administrator of any of the Trust Certificates
or of the proceeds of such Trust Certificates, or for the use or application of
any funds paid to the Company in respect of the Underlying Certificate deposited
in or withdrawn from the Trust Certificate Account by the Company.
Section 5.04 Trustee May Own Trust Certificates.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Trust Certificates and may transact business with the Company and
the parties to the Pooling and Servicing Agreement with the same rights it would
have if it were not Trustee.
Section 5.05 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a banking corporation or a
national banking association having its principal office in a state and city
acceptable to the Company and organized and doing business under the laws of
such state or the United States of America, authorized under such laws 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
authority. If such corporation or national banking association publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes 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 addition, the Trustee hereunder shall at all times be
40
the same Person as the trustee under the Pooling and Servicing Agreement (the
"Underlying Trustee) unless it shall have entered into an agreement with the
Underlying Trustee to have access to information related to the Custodial
Account in order to enable the Trustee to perform its obligations under Sections
3.03 and 3.05 hereof. In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 5.06.
Section 5.06 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Company. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may appoint or may petition any court of competent jurisdiction for the
appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance with the
provisions of Section 5.05 and shall fail to resign after written request
therefor by the Company, or if at any time the Trustee shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Company may remove the
Trustee and appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee. In addition, in the event that the Company
determines that the Trustee has failed (i) to distribute or cause to be
distributed to the Certificateholders any amount required to be distributed
hereunder, if such amount is held by the Trustee for distribution or (ii) to
otherwise observe or perform in any material respect any of its covenants,
agreements or obligations hereunder, and such failure shall continue unremedied
for a period of 5 days (in respect of clause (i) above) or 30 days (in respect
of clause (ii) above) after the date on which written notice of such failure,
requiring that the same be remedied, shall have been given to the Trustee by the
Company, then the Company may remove the Trustee and appoint a successor trustee
by written instrument delivered as provided in the preceding sentence. In
connection with the appointment of a successor trustee pursuant to the preceding
sentence, the Company shall, on or before the date on which any such appointment
becomes effective, obtain from each Rating Agency written confirmation that the
appointment of any such successor trustee will not result in the reduction of
the ratings on any class of the Certificates below the lesser of the then
current or original ratings on such Certificates.
(c) The Holders of Regular Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Company, one complete set to the Trustee so removed
and one complete set to the successor so appointed.
41
(d) Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.07.
Section 5.07 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 5.06 shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein. The predecessor trustee shall deliver to the
successor trustee the Underlying Certificate and related documents and
statements held by it hereunder, and the Company, the Certificate Administrator
and the predecessor trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers, duties
and obligations.
(b) No successor trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 5.05.
(c) Upon acceptance of appointment by a successor trustee as provided in this
Section, the Company shall mail notice of the succession of such trustee
hereunder to all Holders of Trust Certificates at their addresses as shown in
the Certificate Register. If the Company fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.
Section 5.08 Merger or Consolidation of Trustee.
Any corporation or national banking association into which the Trustee
may be merged or converted or with which it may be consolidated or any
corporation or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or national banking association succeeding to all or substantially
all of the corporation trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided such corporation or national banking association
shall be eligible under the provisions of Section 5.05, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. The Trustee shall mail notice
of any such merger or consolidation to the Certificateholders at their address
as shown in the Certificate Register.
Section 5.09 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing the same may at the time be located, the
Certificate Administrator and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
42
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 5.09, such powers, duties, obligations, rights and trusts as the
Certificate Administrator and the Trustee may consider necessary or desirable.
If the Certificate Administrator shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, the Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 5.05 hereunder and no notice to Holders of Trust
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 5.07 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 5.09 all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee, and such separate trustee or co-trustee jointly,
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed, the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the 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 Agreement and the conditions
of this Article V. 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 Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the Trustee,
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 5.10 Appointment of Office or Agency.
The Trustee shall maintain an office or agency in the City of New York
where Trust Certificates may be surrendered for registration of transfer or
exchange, or presented for final distribution, and where the office of the
Certificate Registrar is located. The Trustee initially designates such office
to be located at 0 Xxx Xxxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. The
Trustee shall maintain an office at each of the addresses stated in Section 8.05
hereof where notices and demands to or upon the Trustee in respect of this
Agreement may be served.
43
Section 5.11 Trustee's Fees and Expenses; Indemnification.
(a) The Certificate Administrator shall not be obligated to pay the
Trustee's fees or reimburse its expenses hereunder. The Trustee hereby
acknowledges that it shall be paid and reimbursed for such fees and
expenses pursuant to a separate agreement to be entered between the
Trustee and UBS Securities LLC.
(b) The Certificate Administrator agrees to indemnify the Trustee for, and
to hold the Trustee harmless against, any loss, liability or expense
incurred without negligence or willful misconduct on the Trustee's part,
arising out of, or in connection with, the acceptance and administration
of the Trust Fund, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against any
claim in connection with the exercise or performance of any of its
powers or duties under this Agreement, provided that:
(i) with respect to any such claim, the Trustee shall have given the
Certificate Administrator written notice thereof promptly after the
Trustee shall have actual knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee shall
cooperate and consult fully with the Certificate Administrator in
preparing such defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the
Certificate Administrator shall not be liable for settlement of any
claim by the Trustee entered into without the prior consent of the
Certificate Administrator which consent shall not be unreasonably
withheld.
No termination of this Agreement shall affect the obligations created by
this Section 5.11(b) of the Certificate Administrator to indemnify the Trustee
under the conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided by the
Certificate Administrator in this Section 5.11(b) shall not pertain to any loss,
liability or expense of the Trustee, including the costs and expenses of
defending itself against any claim, incurred in connection with any actions
taken by the Trustee at the direction of the Certificateholders pursuant to the
terms of this Agreement.
Section 5.12 Certain Actions Relating to Underlying Certificate.
In the event that there are any matters arising under the Pooling and
Servicing Agreement or the operative documents relating to transactions
contemplated by the Pooling and Servicing Agreement which require the vote,
consent or direction of the holders of the Underlying Certificate, the Trustee,
as holder of the Underlying Certificate, shall vote the Underlying Certificate
in accordance with the written instructions received from the Certificateholders
evidencing at least a majority of the Percentage Interest in the Trust
Certificates. Any Certificateholder that provides instructions to the Trustee
pursuant to the preceding sentence shall also provide the Trustee and its
officers, directors, agents and employees with an indemnity (which shall be
satisfactory to the Trustee) for any loss, liability or expense incurred by the
44
Trustee that arises out of, or in connection with, such instructions. In the
absence of any instruction from the Certificateholders, the Trustee will abstain
from taking any action with respect to any matter described in the first
sentence of this Section 5.12. The Trustee shall forward to each
Certificateholder copies of any communications received regarding matters that
require action by holders of the Underlying Certificate.
Section 5.13 Representations and Warranties of the Trustee.
The Trustee hereby represents and warrants to the Trust for the benefit
of the Certificateholders, the Company and the Certificate Administrator that:
(i) The Trustee is a banking association duly organized, validly existing and
in good standing under the laws of the State of New York;
(ii) The Trustee has full power, authority and legal right to execute, deliver
and perform its obligations under this Agreement and to execute,
authenticate and deliver the Trust Certificates, and has taken all
necessary action to authorize the execution, delivery and performance by it
of this Agreement;
(iii)The execution, delivery and performance by the Trustee of this Agreement
will not (i) violate any provision of any law or regulation governing the
banking and trust powers of the Trustee or any order, writ, judgment or
decree of any court, arbitrator, or governmental authority applicable to
the Trustee or any of its assets, (ii) violate any provision of the
corporate charter or by-laws of the Trustee, or (iii) violate any provision
of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on any
properties included in the Trust Fund pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking to which it
is a party, which violation, default or lien could reasonably be expected
to have a materially adverse effect on the Trustee's performance or ability
to perform its duties under this Agreement or on the transactions
contemplated hereby;
(iv) The execution, delivery and performance by the Trustee of this 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 in respect of, any governmental authority or agency regulating the
banking and corporate trust activities of the Trustee;
(v) This Agreement has been duly executed and delivered on behalf of the
Trustee and constitutes the legal, valid and binding agreement of the
Trustee, enforceable in accordance with its terms;
(vi) The Trust Certificates have been duly executed, authenticated and delivered
on behalf of the Trustee in accordance with the provisions of this
Agreement; and
(vii)There are no legal or governmental actions, investigations or proceedings
pending in which the Trustee is a party, including actions pursuant to the
Federal Deposit Insurance Act, (a) asserting the invalidity of this
Agreement or (b) which, if decided adversely to the Trustee, would
materially and adversely affect the enforceability of this Agreement
against the Trustee or the rights of the Certificateholders thereunder.
45
ARTICLE VI
TERMINATION
Section 6.01 Termination.
(a) Subject to Section 6.02, the respective obligations and responsibilities of
the Company, the Certificate Administrator and the Trustee created hereby with
respect to the Trust Certificates (other than the obligation to make certain
payments and to send certain notices to Certificateholders as hereinafter set
forth) shall terminate immediately upon the occurrence of the last action
required to be taken by the Trustee on the Termination Date; provided, however,
that in no event shall the trust created hereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the United
Kingdom, living on the date hereof.
(b) Upon presentation and surrender of the Trust Certificates by the
Certificateholders on the Termination Date, the Trustee shall distribute to the
Certificateholders the amounts otherwise distributable on such Distribution Date
pursuant to Section 3.05(a). Any funds not distributed on the Termination Date
because of the failure of any Certificateholders to tender their Trust
Certificates shall be set aside and held in trust for the account of the
appropriate non-tendering Certificateholders, whereupon the Trust Fund shall
terminate, and such funds shall not be invested. If any Trust Certificates as to
which notice of the Termination Date has been given pursuant to this Section
6.01 shall not have been surrendered for cancellation within six months after
the time specified in such notice, the Trustee shall mail a second notice to the
remaining Certificateholders, at their last addresses shown in the Certificate
Register, to surrender their Trust Certificates for cancellation in order to
receive, from such funds held, the final distribution with respect thereto. If
within one year after the second notice any Trust Certificate shall not have
been surrendered for cancellation, the Trustee shall so notify the Company who
shall upon receipt of such notice, directly or through an agent, take reasonable
steps to contact the remaining Certificateholders concerning surrender of their
Trust Certificates. The costs and expenses of maintaining such funds and of
contacting Certificateholders shall be paid out of the assets which remain held.
If within two years after the second notice any Trust Certificates shall not
have been surrendered for cancellation, the Trustee shall pay to the Company all
amounts distributable to the Holders thereof and the Company shall thereafter
hold such amounts for the benefit of such Holders. No interest shall accrue or
be payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 6.01.
Section 6.02 Additional Termination Requirements.
(a) Within 90 days prior to the anticipated Termination Date, the Certificate
Administrator shall adopt and the Certificate Administrator shall sign a plan of
complete liquidation of the Trust Fund meeting the requirements of Section
860F(a)(4)(A) of the Code pursuant to which the Trustee shall sell or otherwise
46
dispose of all the remaining assets of the Trust Fund (other than cash), unless
the Trustee and the Certificate Administrator has received an Opinion of Counsel
to the effect that the failure of the Trust Fund to comply with the requirements
of this Section 6.02(a) will not (i) result in the imposition of taxes on
"prohibited transactions" of the Trust Fund as described in Section 860F of the
Code, or (subject to Section 3.01(f) hereof) (ii) cause the Trust Fund to fail
to qualify as a REMIC at any time that any Trust Certificate is outstanding.
(b) Each Holder of a Trust Certificate hereby irrevocably approves and appoints
the Certificate Administrator as its attorney-in-fact for the purposes of,
adoption of the plan of complete liquidation in accordance with the terms and
conditions of this Agreement.
ARTICLE VII
THE COMPANY AND THE CERTIFICATE ADMINISTRATOR
Section 7.01 Liability of the Company.
The Company and the Certificate Administrator shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by the Company and the Certificate
Administrator herein.
Section 7.02 Merger, Consolidation or Conversion of the Company.
(a) The Company and the Certificate Administrator will each keep in full effect
its existence, rights and franchises as a corporation under the laws of the
state of its incorporation, and will each obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Trust Certificates, the Underlying
Certificate or any of the Mortgage Loans and to perform its respective duties
under this Agreement.
(b) Any Person into which the Company or the Certificate Administrator may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Company or the Certificate Administrator shall be a
party, or any Person succeeding to the business of the Company or the
Certificate Administrator, shall be the successor of the Company or the
Certificate Administrator, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
each Rating Agency's ratings, if any, of the Trust Certificates in effect
immediately prior to such merger or consolidation will not be qualified, reduced
or withdrawn as a result thereof (as evidenced by a letter to such effect from
each Rating Agency).
(c) Notwithstanding anything else in this Section 7.02 and Section 7.04 to the
contrary, the Certificate Administrator may assign its rights and delegate its
duties and obligations under this Agreement; provided that the Person accepting
such assignment or delegation shall execute and deliver to the Company and the
Trustee an agreement, in form and substance reasonably satisfactory to the
Company and the Trustee, which contains an assumption by such Person of the due
and punctual performance and observance of each covenant and condition to be
47
performed or observed by the Certificate Administrator under this Agreement;
provided further that each Rating Agency's rating of the Classes of Trust
Certificates that have been rated in effect immediately prior to such assignment
and delegation will not be qualified, reduced or withdrawn as a result of such
assignment and delegation (as evidenced by a letter to such effect from each
Rating Agency). In the case of any such assignment and delegation, the
Certificate Administrator shall be released from its obligations under this
Agreement, except that the Certificate Administrator shall remain liable for all
liabilities and obligations incurred by it as Certificate Administrator
hereunder prior to the satisfaction of the conditions to such assignment and
delegation set forth in the next preceding sentence.
Section 7.03 Limitation on Liability of the Company and Others.
(a) Neither the Company, the Certificate Administrator nor any of the directors,
officers, employees or agents of the Company or the Certificate Administrator
shall be under any liability to the Trust Fund or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Company, the Certificate Administrator or
any such Person against any breach of warranties or representations made herein
or any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder. The Company,
the Certificate Administrator and any director, officer, employee or agent of
the Company or the Certificate Administrator may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Company, the Certificate
Administrator and any director, officer, employee or agent of the Company or the
Certificate Administrator shall be indemnified by the Trust Fund and held
harmless against any loss, liability or expense incurred in connection with any
legal action relating to this Agreement or the Trust Certificates, other than
any loss, liability or expense related to any specific Mortgage Loan or Mortgage
Loans (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) and any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder and the Company and the Certificate
Administrator shall be entitled to be reimbursed therefor out of amounts
attributable to the Underlying Certificate on deposit in the Trust Certificate
Account as provided by Section 3.04 and, on the Distribution Date(s) following
such reimbursement, the aggregate of such expenses and costs shall be allocated
in reduction of the Accrued Certificate Interest on each Class entitled thereto
in the same manner as if such expenses and costs constituted a Prepayment
Interest Shortfall.
(b) Neither the Company nor the Certificate Administrator shall be under any
obligation to appear in, prosecute or defend any legal or administrative action,
proceeding, hearing or examination that is not incidental to its respective
duties under this Agreement and which in its opinion may involve it in any
expense or liability; provided, however, that the Company or the Certificate
Administrator may in its discretion undertake any such action, proceeding,
hearing or examination that it may deem necessary or desirable in respect to
this Agreement and the rights and duties of the parties hereto and the interests
of the Certificateholders hereunder. In such event, the legal expenses and costs
48
of such action, proceeding, hearing or examination and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Company and the Certificate Administrator shall be entitled to be reimbursed
therefor out of amounts attributable to the Underlying Certificate on deposit in
the Trust Certificate Account as provided by Section 3.04 and, on the
Distribution Date(s) following such reimbursement, the aggregate of such
expenses and costs shall be allocated in reduction of the Accrued Certificate
Interest on each Class entitled thereto in the same manner as if such expenses
and costs constituted a Prepayment Interest Shortfall.
Section 7.04 Company and Certificate Administrator Not to Resign.
Subject to the provisions of Section 7.02, neither the Company nor the
Certificate Administrator shall resign from its respective obligations and
duties hereby imposed on it except upon determination that its duties hereunder
are no longer permissible under applicable law. Any such determination
permitting the resignation of the Company or the Certificate Administrator shall
be evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation by the Certificate Administrator shall become effective
until a successor servicer selected in accordance with the terms of the Pooling
and Servicing Agreement shall have assumed the Certificate Administrator's
responsibilities and obligations hereunder.
Section 7.05 Successor Certificate Administrator.
In the event that the Servicer is removed or replaced in accordance with
the terms of the Pooling and Servicing Agreement, the successor servicer
selected in accordance with the terms of the Pooling and Servicing Agreement
shall become the successor certificate administrator hereunder. The Certificate
Administrator agrees to cooperate with the Trustee in effecting the termination
of the Certificate Administrator's responsibilities and rights hereunder. No
such termination shall release the Certificate Administrator for any liability
that it would otherwise have hereunder for any act or omission prior to the
effective time of such termination.
Section 7.06 Representation and Warranty of Company.
Immediately prior to the conveyance of the Underlying Certificate to the
Trustee pursuant to Section 2.01, the Company had good title to, and was the
sole owner of, the Underlying Certificate free and clear of any pledge, lien,
encumbrance or security interest.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01 Amendment.
(a) This Agreement may be amended from time to time by the Certificate
Administrator, the Company and the Trustee, without the consent of any
of the Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or therein, which may be
inconsistent with any other provisions herein or therein or to correct
any error,
49
(iii)to modify, eliminate or add to any of its provisions to such extent as
shall be necessary or desirable to maintain the qualification of the Trust
Fund as a REMIC at all times that any Trust Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust
Fund pursuant to the Code that would be a claim against the Trust Fund,
provided that the Trustee has received an Opinion of Counsel to the effect
that (A) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any
such tax and (B) such action will not adversely affect in any material
respect the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the Trust
Certificate Account, provided that (A) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Certificateholder and (B) such change shall
not adversely affect the then-current rating of the Trust Certificates,
as evidenced by a letter from each Rating Agency then rating the Trust
Certificates to such effect,
(v) to modify, eliminate or add to the provisions of Section 4.02(c) or any
other provision hereof restricting transfer of the Class R Certificate by
virtue of their being the REMIC "residual interest", provided that (A) such
change shall not adversely affect the then current ratings of the Trust
Certificates, as evidenced by a letter from the Rating Agency to such
effect, and (B) such change shall not, as evidenced by an Opinion of
Counsel, cause either the Trust Fund or any of the Certificateholders
(other than the transferor) to be subject to a tax caused by a transfer to
a Non-United States Person or a Person that is not a Permitted Transferee,
or
(vi) to make any other provisions with respect to matters or questions
arising under this Agreement which shall not be materially inconsistent
with the provisions of this Agreement, provided that such action shall
not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder.
(b) This Agreement may also be amended from time to time by the Certificate
Administrator, the Company and the Trustee with the consent of the
Holders of Trust Certificates evidencing in the aggregate not less than
66% of the Percentage Interests of each Class of Trust Certificates
affected thereby for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Trust
Certificates of such Class; provided, however, that no such amendment
shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
which are required to be distributed on any Trust Certificate without
the consent of the Holder of such Trust Certificate, or
(ii) reduce the aforesaid percentage of Trust Certificates of any Class the
Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Trust Certificates
of such Class then outstanding.
50
(c) Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Company or the
Trustee in accordance with such amendment will not result in the
imposition of a tax on the Trust Fund or cause the Trust Fund to fail to
qualify as a REMIC at any time that any Trust Certificate is
outstanding.
(d) Promptly after the execution of any such amendment the Trustee shall
furnish written notification of the substance of such amendment to each
Certificateholder. It shall not be necessary for the consent of
Certificateholders under this Section 8.01 to approve the particular
form of any proposed amendment, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining
such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Section 8.02 Counterparts.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 8.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor 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 the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as expressly
provided for herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Trust
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee a notice of a default by the Company or the Trustee in
the performance of any obligation hereunder, and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of Trust Certificates
entitled to at least 33% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
51
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. For the protection and
enforcement of the provisions of this Section, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
Section 8.04 Governing Law.
This Agreement and the Trust Certificates shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 8.05 Notices.
All demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid (except for notices to the Trustee which shall
be deemed to have been duly given only when received), to (a) in the case of the
Company, 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx
00000, Attention: President, or such other address as may hereafter be furnished
to the Trustee and the Certificate Administrator in writing by the Company, (b)
in the case of the Certificate Administrator, 000 Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxx 00000, Attention: President or such other address as may hereafter
be furnished to the Trustee and the Company in writing by the Certificate
Administrator, (c) in the case of the Trustee, 0 Xxx Xxxx Xxxxx, Xxxxx Xxxxx,
Xxx Xxxx 00000 or such other address as may hereafter be furnished to the
Company and the Certificate Administrator in writing by the Trustee, (d) in the
case of Fitch, Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and (e) in the
case of S&P, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any notice required or
permitted to be mailed 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 Agreement
shall be conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Section 8.06 Notices to the Rating Agencies.
The Company or the Trustee, as applicable, shall notify each Rating
Agency at such time as it is otherwise required pursuant to this Agreement to
give notice of the occurrence of any of the events described in clauses (a),
(b), (d), (e) or (f) below or provide a copy to the Rating Agency at such time
as otherwise required to be delivered pursuant to this Agreement of any of the
statements described in clause (c) below:
(a) a material change or amendment to this Agreement,
(b) the termination or appointment of a successor Trustee or a change in the
majority ownership of the Trustee,
(c) the statement required to be delivered to the Holders of each Class of
Trust Certificates pursuant to Section 3.06,
(d) a change in the location of the Trust Certificate Account,
52
(e) the occurrence of the final Distribution Date, and
(f) the repurchase of the Underlying Certificate.
Section 8.07 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Trust Certificates or the rights of the Holders thereof.
Section 8.08 Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto, and all
such provisions shall inure to the benefit of the Certificateholders.
Section 8.09 Article and Section Headings.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
Section 8.10 Supplemental Provisions for Resecuritization.
This Agreement may be supplemented by means of the addition of a
separate Article hereto (a "Supplemental Article") for the purpose of
resecuritizing any of the Trust Certificates issued hereunder, under the
following circumstances. With respect to any Class or Classes of Trust
Certificates issued hereunder, or any portion of any such Class, as to which the
Company or any of its Affiliates (or any designee thereof) is the registered
Holder (the "Resecuritized Certificates"), the Company may deposit such
Resecuritized Certificates into a new REMIC, grantor trust, FASIT or custodial
arrangement (a "Restructuring Vehicle") to be held by the Trustee pursuant to a
Supplemental Article. The instrument adopting such Supplemental Article shall be
executed by the Company, the Certificate Administrator and the Trustee;
provided, that neither the Certificate Administrator nor the Trustee shall
withhold their consent thereto if their respective interests would not be
materially adversely affected thereby. To the extent that the terms of the
Supplemental Article do not in any way affect any provisions of this Agreement
as to any of the Trust Certificates initially issued hereunder, the adoption of
the Supplemental Article shall not constitute an "amendment" of this Agreement.
Each Supplemental Article shall set forth all necessary provisions
relating to the holding of the Resecuritized Certificates by the Trustee, the
establishment of the Restructuring Vehicle, the issuing of various classes of
new certificates by the Restructuring Vehicle and the distributions to be made
thereon, and any other provisions necessary for the purposes thereof. In
connection with each Supplemental Article, the Company shall deliver to the
Trustee an Opinion of Counsel to the effect that (i) the Restructuring Vehicle
will qualify as a REMIC, grantor trust, FASIT or other entity not subject to
taxation for federal income tax purposes and (ii) the adoption of the
Supplemental Article will not endanger the status of either REMIC created
53
hereunder as a REMIC or (subject to Section 3.01(f)) result in the imposition of
a tax upon the Trust Fund or either REMIC created hereunder (including but not
limited to the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on contributions to a REMIC as set forth in Section
860G(d) of the Code).
Section 8.11 Non-Petition.
The Company, the Certificate Administrator and the Trustee, by entering
into this Agreement, and each Certificateholder, by accepting a Trust
Certificate, hereby covenant and agree that they will not at any time institute
against the Trust Fund, or join in any institution against the Trust Fund of,
any bankruptcy proceedings under any United States federal or state bankruptcy
or similar law in connection with any obligation with respect to the Trust
Certificates or this Agreement.
54
IN WITNESS WHEREOF, the Company, the Certificate Administrator and the
Trustee have caused their names to be signed hereto by their respective officers
thereunto duly authorized and their respective seals, if required, duly
attested, to be hereunto affixed, all as of the day and year first above
written.
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Company
By:
Name:
Title:
GMAC MORTGAGE CORPORATION,
as Certificate Administrator
By:
Name:
Title:
JPMORGAN CHASE BANK, as Trustee
By:
Name:
Title:
55
EXHIBIT A
FORM OF CLASS A CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS 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.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EACH BENEFICIAL OWNER OF THIS CERTIFICATE (OR ANY INTEREST THEREIN),
SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF
SUCH CERTIFICATE (OR INTEREST THEREIN), THAT EITHER (I) IT IS NOT ACQUIRING THE
CERTIFICATE WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE, OR AN ENTITY DEEMED TO HOLD THE
"PLAN ASSETS" OF ANY OF THE FOREGOING, (II) IT HAS ACQUIRED AND IS HOLDING SUCH
CERTIFICATE IN RELIANCE ON THE ISSUER EXEMPTION AS DEFINED IN THE PROSPECTUS
SUPPLEMENT, AND THAT (1) IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE
AVAILABILITY OF THE ISSUER EXEMPTION, INCLUDING THAT SUCH CERTIFICATE MUST BE
RATED, AT THE TIME OF PURCHASE, NOT LOWER THAN "BBB-" (OR ITS EQUIVALENT) BY
S&P, XXXXX'X OR FITCH AND (2) IT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1) OF REGULATION D OF THE SECURITIES ACT OF 1933, AS AMENDED, OR (III)
(1) SUCH ACQUIRER OR HOLDER IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS
USED TO ACQUIRE AND HOLD SUCH CERTIFICATE (OR INTEREST THEREIN) IS AN "INSURANCE
COMPANY GENERAL ACCOUNT" (AS DEFINED IN U.S. DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION ("PTCE") 95-60), AND (3) THE CONDITIONS SET FORTH IN
SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED.
IF THIS CERTIFICATE (OR ANY INTEREST THEREIN) IS ACQUIRED OR HELD IN
VIOLATION OF THE CONDITIONS DESCRIBED IN THE PRECEDING PARAGRAPH, THE NEXT
PRECEDING PERMITTED BENEFICIAL OWNER WILL BE TREATED AS THE BENEFICIAL OWNER OF
SUCH CERTIFICATE, RETROACTIVE TO THE DATE OF TRANSFER TO THE PURPORTED
A-1
BENEFICIAL OWNER. ANY PURPORTED BENEFICIAL OWNER WHOSE ACQUISITION OR HOLDING OF
ANY SUCH CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF THE
CONDITIONS DESCRIBED IN THE PRECEDING PARAGRAPH SHALL INDEMNIFY AND HOLD
HARMLESS THE DEPOSITOR, THE TRUSTEE, THE SERVICER, ANY SUBSERVICER, THE
UNDERWRITER AND THE TRUST FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS,
COSTS OR EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR
HOLDING.
A-2
Certificate No. 1 [____]% Pass-Through Rate
Class A-[___]
Date of Trust Agreement: February 27, 2004 Percentage Interest: [___]%
Certificate Administrator: Aggregate Initial Certificate Principal
GMAC Mortgage Corporation Balance of the Class A-[__] Certificates:
$[_________]
First Distribution Date: Initial Certificate Principal Balance of this
March 25, 2004 Certificate: $[__________]
Assumed Final Distribution Date: CUSIP [___]
[_____]
TRUST CERTIFICATE
SERIES 2004-JR1
Evidencing a percentage interest in the distributions allocable to the
Class A-[__] Certificates with respect to a Trust Fund consisting
primarily of a class of mortgage trust certificates issued by a trust
established by RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
This Certificate is payable solely from the assets of the Trust Fund (as
defined below), and does not represent an obligation of or interest in
Residential Asset Mortgage Products, Inc., the Certificate Administrator, the
Trustee referred to below or GMAC Mortgage Group, Inc. or any of their
affiliates. Neither this Certificate nor the Underlying Certificate (as defined
below) are guaranteed or insured by any governmental agency or instrumentality
or by Residential Asset Mortgage Products, Inc. (hereinafter called the
"Company," which term includes any successor entity under the Agreement referred
to below), the Certificate Administrator, the Trustee or GMAC Mortgage Group,
Inc. or any of their affiliates. Neither the Company, the Certificate
Administrator, GMAC Mortgage Group, Inc. nor any of their affiliates will have
any obligation with respect to any certificate or other obligation secured by or
payable from payments on this Certificate.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Initial
Certificate Principal Balance of this Certificate by the aggregate Initial
Certificate Principal Balance of all Class A-[__] Certificates, both as
specified above) in certain distributions with respect to the Trust Fund
consisting primarily of an interest in the GMACM Mortgage Pass-Though
Certificates, Series 2003-J8, Class A (the "Underlying Certificate"). The Trust
Fund was created pursuant to the Trust Agreement dated as specified above (the
"Agreement") among the Company, the Certificate Administrator and XX Xxxxxx
Chase Bank, as trustee (the "Trustee"), 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
A-3
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 "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), from
Available Funds in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount (of interest and principal, if any)
required to be distributed to Holders of Class A-[___] Certificates on such
Distribution Date.
Distributions on this Certificate will be made by the Certificate
Administrator acting on behalf of the Trustee (by wire transfer or otherwise)
for the account of the Person entitled thereto if such Person shall have so
notified the Certificate Administrator, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose in the City and State of New York. The Initial
Certificate Principal Balance of this Certificate is set forth above. The
Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal and any Class A Loss Amounts allocable
hereto.
This Certificate is one of a duly authorized issue of certificates
issued in several Classes designated as Mortgage Trust Certificates of the
Series specified hereon.
The Trust Certificates are limited in right of payment to certain
distributions made to the Underlying Certificate, all as more specifically set
forth herein and in the Agreement.
As provided in the Agreement, withdrawals from the Trust Certificate
Account created for the benefit of Certificateholders may be made by the
Certificate Administrator from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement of certain expenses incurred by the Certificate Administrator, the
Company or the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Certificate Administrator and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, the
Certificate Administrator and the Trustee with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66% of the Percentage
Interests of each Class of Trust Certificates affected thereby. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof in certain circumstances without the consent of
A-4
the Holders of any of the Certificates and, in certain additional circumstances,
without the consent of the Holders of certain Classes of Trust Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Trust
Certificates of authorized denominations evidencing the same Class and aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Trust Certificates are issuable only as registered Certificates
without coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Trust Certificates are exchangeable for new Trust Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Certificate Administrator, the Trustee and the
Certificate Registrar and any agent of the Company, the Certificate
Administrator, the Trustee or the Certificate Registrar may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Company, the Certificate Administrator, the Trustee nor any such
agent shall be affected by notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject to the
Underlying Certificate or the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (ii) the
purchase by the Servicer from the trust fund relating to the Underlying
Certificate of all remaining Mortgage Loans and all property acquired in respect
of such Mortgage Loans, thereby effecting early retirement of the Underlying
Certificate. The Pooling and Servicing Agreement permits, but does not require,
the Servicer to (i) purchase at a price determined as provided in the Pooling
and Servicing Agreement all remaining Mortgage Loans and all property acquired
in respect of any Mortgage Loan or (ii) purchase in whole, but not in part, all
of the GMACM Mortgage Pass-Through Certificates, Series 2003-J8 from the holders
thereof; provided, that any such option may only be exercised if the Pool Stated
Principal Balance (as defined in the Pooling and Servicing Agreement) of the
Mortgage Loans as of the Distribution Date upon which the proceeds of any such
purchase are distributed is less than ten percent of the Cut-off Date Principal
A-5
Balance (as defined in the Pooling and Servicing Agreement) of the Mortgage
Loans.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: February 27, 2004 JPMORGAN CHASE BANK,
as Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK,
as Certificate Registrar
By:
Authorized Signatory
A-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) a Percentage Interest evidenced by the within Mortgage Asset-Backed
Pass-Through Certificate and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
Dated:__________________
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account of ______________ account number
_____________, or, if mailed by check, to
___________________________________________________________________________
Applicable statements should be mailed to
_____________________________________________________________________________.
This information is provided by __________________________________, the
assignee named above, or _________________________________________ as its agent.
A-8
EXHIBIT B
FORM OF CLASS R CERTIFICATE
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 4.02(d) OF THE
AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE
ADMINISTRATOR, 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
CERTIFICATE ADMINISTRATOR 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
B-1
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. 2 5.25% Pass-Through Rate
Class R-[__] Aggregate Initial Certificate
Principal Balance of the
Date of Trust Agreement: Class R-[___] Certificates:
February 27, 2004 $50.00
First Distribution Date: Initial Certificate Principal
March 25, 2004 Balance of this Certificate:
$[_____]
Certificate Administrator: Percentage Interest: [_____]%
GMAC Mortgage Corporation
Assumed Final Distribution Date: CUSIP: [___]
[_____]
TRUST CERTIFICATE,
SERIES 2004-JR1
evidencing a percentage interest in any distributions allocable to the
Class R-[___] Certificates with respect to the Trust Fund consisting
primarily of a class of mortgage trust certificates issued by a trust
established by RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
This Certificate is payable solely from the assets of the Trust Fund (as
defined below), and does not represent an obligation of or interest in
Residential Asset Mortgage Products, Inc., the Certificate Administrator, the
Trustee referred to below or GMAC Mortgage Group, Inc. or any of their
affiliates. Neither this Certificate nor the Underlying Certificate (as defined
below) are guaranteed or insured by any governmental agency or instrumentality
or by Residential Asset Mortgage Products, Inc. (hereinafter called the
"Company," which term includes any successor entity under the Agreement referred
to below), the Certificate Administrator, the Trustee or GMAC Mortgage Group,
B-2
Inc. or any of their affiliates. Neither the Company, the Certificate
Administrator, GMAC Mortgage Group, Inc. nor any of their affiliates will have
any obligation with respect to any certificate or other obligation secured by or
payable from payments on this Certificate.
This certifies that [_________________________] is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the Initial Certificate Principal Balance of this Certificate by the aggregate
Initial Certificate Principal Balance of all Class R-[___] Certificates, both as
specified above) in certain distributions with respect to the Trust Fund
consisting primarily of the GMACM Mortgage Pass-Through Certificates, Series
2003-J8, Class A (the "Underlying Certificate"). The Trust Fund was created
pursuant to the Trust Agreement dated as specified above (the "Agreement") among
the Company, the Certificate Administrator and XX Xxxxxx Xxxxx Bank, as trustee
(the "Trustee"), 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 "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), from
the Available Funds in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount (of interest and principal, if any)
required to be distributed to Holders of Class R-[___] Certificates on such
Distribution Date.
Each Holder 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 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 Company will have the right, in its
sole discretion and without notice to the Holder of this Certificate, to sell
this Certificate to a purchaser selected by the Company, which purchaser may be
the Company, or any affiliate of the Company, on such terms and conditions as
the Company may choose.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose in the City and State of New York. The Initial
Certificate Principal Balance of this Certificate is set forth above. The
Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal. Notwithstanding the reduction of the
B-3
Certificate Principal Balance hereof to zero, this Certificate will remain
outstanding under the Agreement and the Holder hereof may have additional
obligations with respect to this Certificate, including tax liabilities, and may
be entitled to certain additional distributions hereon, in accordance with the
terms and provisions of the Agreement.
No transfer of this Class R-[___] Certificate will be made unless the
Trustee has received either (i) an opinion of counsel acceptable to and in form
and substance satisfactory to the Trustee, the Company and the Certificate
Administrator with respect to the permissibility of such transfer under the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
Section 4975 of the Internal Revenue Code (the "Code") and stating, among other
things, that the transferee's acquisition of a Class R-[___] Certificate will
not constitute or result in a non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code or (ii) 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 provisions
of ERISA or Section 4975 of the Code (a "Plan"), or any other person (including
an investment manager, a named fiduciary or a trustee of any Plan) acting,
directly or indirectly, on behalf of or purchasing any Certificate with "plan
assets" of any Plan.
This Certificate is one of a duly authorized issue of the certificates
issued in several Classes designated as Mortgage Trust Certificates of the
Series specified hereon.
The Trust Certificates are limited in right of payment to certain
distributions made to the Underlying Certificate.
As provided in the Agreement, withdrawals from the Trust Certificate
Account created for the benefit of Certificateholders may be made by the
Certificate Administrator from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement of certain expenses incurred by the Certificate Administrator, the
Company or the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Certificate Administrator and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, the
Certificate Administrator and the Trustee with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66% of the Percentage
Interests of each Class of Trust Certificates affected thereby. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof in certain circumstances without the consent of
the Holders of any of the Certificates and, in certain additional circumstances,
without the consent of the Holders of certain Classes of Trust Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or other
B-4
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Trust
Certificates of authorized denominations evidencing the same Class and aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Trust Certificates are issuable only as registered Certificates
without coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Trust Certificates are exchangeable for new Trust Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Certificate Administrator, the Trustee and the
Certificate Registrar and any agent of the Company, the Certificate
Administrator, the Trustee or the Certificate Registrar may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Company, the Certificate Administrator, the Trustee nor any such
agent shall be affected by notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject to the
Underlying Certificate or the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (ii) the
purchase by the Servicer from the trust fund relating to the Underlying
Certificate of all remaining Mortgage Loans and all property acquired in respect
of such Mortgage Loans, thereby effecting early retirement of the Underlying
Certificate. The Pooling and Servicing Agreement permits, but does not require,
the Servicer to (i) purchase at a price determined as provided in the Agreement
all remaining Mortgage Loans and all property acquired in respect of any
Mortgage Loan or (ii) purchase in whole, but not in part, all of the GMACM
Mortgage Pass-Through Certificates, Series 2003-J8 from the holders thereof;
provided, that any such option may only be exercised if the Pool Stated
Principal Balance (as defined in the Pooling and Servicing Agreement) of the
Mortgage Loans as of the Distribution Date upon which the proceeds of any such
purchase are distributed is less than ten percent of the Cut-off Date Principal
Balance (as defined in the Pooling and Servicing Agreement) of the Mortgage
Loans.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purpose
have the same effect as if set forth at this place.
B-5
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: February 27, 2004 JPMORGAN CHASE BANK,
as Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK,
as Certificate Registrar
By:_______________________________
Authorized Signatory
B-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) a Percentage Interest evidenced by the within Mortgage Asset-Backed
Pass-Through Certificate and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
Dated:__________________
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account of ______________ account number
_____________, or, if mailed by check, to
___________________________________________________________________________
Applicable statements should be mailed to
_____________________________________________________________________________.
This information is provided by __________________________________, the
assignee named above, or _________________________________________ as its agent.
B-8
EXHIBIT C-1
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 Mortgage Trust Certificates, Series ____-___, 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.
C-1-1
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 Code or 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 Trustee 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 4.02(c) of the Trust
Agreement under which the Class R Certificates were issued. 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 Annex
1.
C-1-2
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 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.
C-1-3
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 ______________________, 200___.
[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
______________________, 200___.
NOTARY PUBLIC
COUNTY OF
STATE OF
My Commission expires the ___________ day of
______________________, 200___.
C-1-4
ANNEX 1 TO EXHIBIT C-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
C-1-5
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 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.
C-1-6
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.
C-1-7
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 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.
C-1-8
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 * * *
C-1-9
EXHIBIT C-2
Form of Transferor Certificate
________________________, 2_____
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
GMAC Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
XX Xxxxxx Chase Bank
4 New York Xxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Residential Asset Mortgage Products, Inc., Mortgage Trust
Certificates, Series 2004-JR1 , Class R-[I][II] Certificates
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
Residential Asset Mortgage Products, Inc., Mortgage Trust Certificates, Series
2004-JR1, Class R-[I][II] (the "Certificates"), pursuant to Section 4.02 of the
Trust Agreement (the "Trust Agreement"), dated as of February 27, 2004 among
Residential Asset Mortgage Products, Inc., as depositor (the "Company"), GMAC
Mortgage Corporation, as certificate administrator (the "Certificate
Administrator") and XX Xxxxxx Xxxxx Bank, as trustee (the "Trustee"). All terms
used herein and not otherwise defined shall have the meanings set forth in the
Trust Agreement. The Seller hereby certifies, represents and warrants to, and
covenants with, the Company and the Trustee that:
1. No purpose of the Seller relating to 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 a
transfer affidavit and agreement in the form attached to the Trust
Agreement as Exhibit C-1. The Seller does not know or believe that any
representation contained therein is false.
3. The Seller has no actual knowledge that the proposed Transferee is not
both a United States Person and a Permitted Transferee.
4. 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
C-2-1
historically paid its debts as they become due and has found no significant
evidence to indicate the Purchaser will not continue to pay its debts as
they become due in the future. The Seller understands that the transfer of
the 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.
5. 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:
C-2-2
EXHIBIT D
Pooling and Servicing Agreement
D-1
EXHIBIT E
Form of Form 10K Certification
I, [identify the certifying individual], certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal year [____],
and all reports on Form 8-K containing distribution or servicing reports filed
in respect of periods included in the year covered by that annual report, of the
trust (the "Trust") created pursuant to the Trust Agreement (the "Trust
Agreement") among Residential Asset Mortgage Products, Inc. (the "Company"),
GMAC Mortgage Corporation (the "Certificate Administrator") and [Name of
Trustee] (the "Trustee");
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required to be provided to
the Trustee by the Certificate Administrator under the Trust Agreement for
inclusion in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by the Certificate
Administrator under the Trust Agreement and based upon my knowledge and the
annual compliance review required under the Trust Agreement, and, except as
disclosed in the reports, the Certificate Administrator has fulfilled its
obligations under the Trust Agreement; and
5. The reports disclose all significant deficiencies relating to the Certificate
Administrator's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
as set forth in the Trust Agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied on the
information provided to me by the following unaffiliated parties: [the Trustee].
Date:_______________________
____________________________*
Name:
Title:
* to be signed by the senior officer in charge of the servicing functions of
the Certificate Administrator
E-1
EXHIBIT F
Form of Back-up Certification to Form 10K Certification
The undersigned, a Responsible Officer of [_________] (the "Trustee")
certifies that:
(a) The Trustee has performed all of the duties specifically required to be
performed by it pursuant to the provisions of the Trust Agreement dated
as of [_________], 20[__] (the "Agreement") by and among [__________],
as depositor, GMAC Mortgage Corporation, as certificate administrator,
and the Trustee in accordance with the standards set forth therein.
(b) Based on my knowledge, the list of Certificateholders as shown on the
Certificate Register as of the end of each calendar year that is
provided by the Trustee pursuant to the Agreement is accurate as of the
last day of the 20[__] calendar year.
Capitalized terms used and not defined herein shall have the meanings given such
terms in the Agreement.
IN WITNESS WHEREOF, I have duly executed this certificate as of _________,
20__.]
Name:_________________________________
Title:
F-1
