EXECUTION COPY
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RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
________________________________________
TRUST AGREEMENT
Dated as of June 29, 2006
________________________________________
GMACM HOME EQUITY LOAN TRUST 2006-HE2
GMACM Home Equity Loan-Backed Certificates,
Series 2006-HE2
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TABLE OF CONTENTS
PAGE
ARTICLE I Definitions...............................................................1
Section 1.01. Definitions.......................................................1
Section 1.02. Other Definitional Provisions.....................................1
ARTICLE II Organization..............................................................2
Section 2.01. Name..............................................................2
Section 2.02. Office............................................................2
Section 2.03. Purposes and Powers...............................................2
Section 2.04. Appointment of Owner Trustee......................................3
Section 2.05. Initial Capital Contribution of Trust Estate......................3
Section 2.06. Declaration of Trust..............................................3
Section 2.07. Title to Trust Property...........................................4
Section 2.08. Situs of Trust....................................................4
Section 2.09. Representations and Warranties of the Depositor...................4
Section 2.10. Payment of Trust Fees.............................................5
ARTICLE III Conveyance of the Mortgage Loans; Certificates............................5
Section 3.01. Conveyance of the Mortgage Loans..................................5
Section 3.02. Initial Ownership.................................................5
Section 3.03. Issuance of Certificates..........................................5
Section 3.04. Authentication of Certificates....................................6
Section 3.05. Registration of and Limitations on Transfer and Exchange of
Certificates......................................................6
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates.................9
Section 3.07. Persons Deemed Certificateholders.................................9
Section 3.08. Access to List of Certificateholders' Names and Addresses.........9
Section 3.09. Maintenance of Office or Agency..................................10
Section 3.10. Certificate Paying Agent.........................................10
Section 3.11. Cooperation......................................................11
Section 3.12. Intentionally Omitted............................................11
Section 3.13. Subordination....................................................11
Section 3.14. No Priority Among Certificates...................................12
ARTICLE IV Authority and Duties of Owner Trustee....................................12
Section 4.01. General Authority................................................12
Section 4.02. General Duties...................................................12
Section 4.03. Action upon Instruction..........................................12
Section 4.04. No Duties Except as Specified under Specified Documents or
in Instructions..................................................13
Section 4.05. Restrictions.....................................................13
Section 4.06. Prior Notice to Certificateholders and the Enhancer with
Respect to Certain Matters. ....................................13
Section 4.07. Action by Certificateholders with Respect to Certain Matters.....14
Section 4.08. Action by Certificateholders with Respect to Bankruptcy..........14
Section 4.09. Restrictions on Certificateholders' Power........................14
Section 4.10. Majority Control.................................................14
Section 4.11. Doing Business in Other Jurisdictions............................15
Section 4.12. Removal of Mortgage Loans........................................15
ARTICLE V Application of Trust Funds...............................................15
Section 5.01. Distributions....................................................15
Section 5.02. Method of Payment. .............................................16
Section 5.03. Signature on Returns.............................................16
Section 5.04. Statements to Certificateholders.................................16
Section 5.05. Tax Reporting....................................................16
ARTICLE VI Concerning the Owner Trustee.............................................17
Section 6.01. Acceptance of Trusts and Duties..................................17
Section 6.02. Furnishing of Documents..........................................18
Section 6.03. Representations and Warranties...................................18
Section 6.04. Reliance; Advice of Counsel......................................19
Section 6.05. Not Acting in Individual Capacity................................19
Section 6.06. Owner Trustee Not Liable for Certificates or Related
Documents........................................................19
Section 6.07. Owner Trustee May Own Certificates and Notes.....................20
ARTICLE VII Compensation of Owner Trustee............................................20
Section 7.01. Owner Trustee's Fees and Expenses................................20
Section 7.02. Indemnification..................................................20
ARTICLE VIII Termination of Trust Agreement...........................................21
Section 8.01. Termination of Trust Agreement...................................21
ARTICLE IX Successor Owner Trustees and Additional Owner Trustees...................22
Section 9.01. Eligibility Requirements for Owner Trustee.......................22
Section 9.02. Replacement of Owner Trustee.....................................22
Section 9.03. Successor Owner Trustee..........................................23
Section 9.04. Merger or Consolidation of Owner Trustee.........................24
Section 9.05. Appointment of Co-Trustee or Separate Trustee....................24
ARTICLE X Compliance With Regulation AB............................................26
Section 10.01. Intent of the Parties; Reasonableness............................26
Section 10.02. Additional Representations and Warranties of the Owner
Trustee..........................................................26
Section 10.03. Information to Be Provided by the Owner Trustee..................27
Section 10.04. Indemnification; Remedies........................................28
ARTICLE XI Miscellaneous............................................................29
Section 11.01. Amendments.......................................................29
Section 11.02. No Legal Title to Trust Estate...................................31
Section 11.03. Limitations on Rights of Others..................................31
Section 11.04. Notices..........................................................31
Section 11.05. Severability.....................................................32
Section 11.06. Separate Counterparts............................................32
Section 11.07. Successors and Assigns...........................................32
Section 11.08. No Petition......................................................32
Section 11.09. No Recourse......................................................32
Section 11.10. Headings.........................................................32
Section 11.11. GOVERNING LAW....................................................32
Section 11.12. Integration......................................................32
Section 11.13. Rights of Enhancer to Exercise Rights of Certificateholders......32
This trust agreement, dated as of June 29, 2006 (as amended from time to time, the
"Trust Agreement"), is between Residential Asset Mortgage Products, Inc., a Delaware
corporation, as depositor (the "Depositor"), and Wilmington Trust Company, a Delaware
banking corporation, as owner trustee (the "Owner Trustee").
WITNESSETH:
WHEREAS, the Depositor and the Owner Trustee desire to form a Delaware statutory
trust;
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the
Depositor and the Owner Trustee agree as follows:
ARTICLE I
Definitions
Section 1.01...Definitions. For all purposes of this Trust Agreement, except as otherwise
expressly provided herein or unless the context otherwise requires, capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto in Appendix A
to the indenture dated as of June 29, 2006 (the "Indenture"), between GMACM Home Equity Loan
Trust 2006-HE2, as Issuer, and JPMorgan Chase Bank, National Association, as Indenture
Trustee. All other capitalized terms used herein shall have the meanings specified herein.
Section 1.02...Other Definitional Provisions.
(a) All terms defined in this Trust Agreement shall have the defined meanings when used
in any certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As used in this Trust Agreement and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in this Trust Agreement
or in any such certificate or other document, and accounting terms partly defined in this
Trust Agreement or in any such certificate or other document to the extent not defined,
shall have the respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this Trust Agreement
or in any such certificate or other document are inconsistent with the meanings of such
terms under generally accepted accounting principles, the definitions contained in this
Trust Agreement or in any such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar import when used in
this Trust Agreement shall refer to this Trust Agreement as a whole and not to any
particular provision of this Trust Agreement; Section and Exhibit references contained in
this Trust Agreement are references to Sections and Exhibits in or to this Trust Agreement
unless otherwise specified; the term "including" shall mean "including without limitation";
"or" shall include "and/or"; and the term "proceeds" shall have the meaning ascribed thereto
in the UCC.
(d) The definitions contained in this Trust Agreement are applicable to the singular as
well as the plural forms of such terms and to the masculine as well as to the feminine and
neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement, instrument
or statute as from time to time amended, modified or supplemented and includes (in the case
of agreements or instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted successors and
assigns.
ARTICLE II
Organization
Section 2.01...Name. The trust created hereby shall be known as "GMACM Home Equity Loan
Trust 2006-HE2," in which name the Owner Trustee may conduct the business of the Trust, make
and execute contracts and other instruments on behalf of the Trust and ▇▇▇ and be sued.
Section 2.02...Office. The office of the Trust shall be in care of the Owner Trustee at the
Corporate Trust Office or at such other address in Delaware as the Owner Trustee may
designate by written notice to the Certificateholders, the Depositor, and the Enhancer.
Section 2.03...Purposes and Powers. The purpose of the Trust is to engage in the following
activities:
(i) to issue the Notes pursuant to the Indenture and the Certificates pursuant to this
Trust Agreement and to sell the Notes and the Certificates;
(ii) to purchase the Mortgage Loans and to pay the organizational, start-up and
transactional expenses of the Trust;
(iii) to assign, grant, transfer, pledge and convey the Mortgage Loans pursuant to the
Indenture and to hold, manage and distribute to the Certificateholders pursuant to Section
5.01 any portion of the Mortgage Loans released from the Lien of, and remitted to the Trust
pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Basic Documents to which it is to
be a party;
(v) to engage in those activities, including entering into agreements, that are
necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or
connected therewith, including, without limitation, to accept additional contributions of
equity that are not subject to the Lien of the Indenture; and
(vi) subject to compliance with the Basic Documents, to engage in such other activities as
may be required in connection with conservation of the Trust Estate and the making of
distributions to the Securityholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust shall not
engage in any activity other than in connection with the foregoing or other than as required
or authorized by the terms of this Trust Agreement or the other Basic Documents while any
Note is outstanding without the consent of the Certificateholders of Certificates evidencing
a majority of the aggregate Certificate Percentage Interest of each Class of Certificates,
the Indenture Trustee, the Enhancer and the Noteholders of Notes representing a majority of
the aggregate Voting Rights of the Notes.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby appoints the Owner Trustee
as trustee of the Trust effective as of the date hereof, to have all the rights, powers and
duties set forth herein.
Section 2.05. Initial Capital Contribution of Trust Estate. In consideration of the delivery
by the Owner Trustee, on behalf of the Trust, of the Securities to the Depositor or its
designee, upon the order of the Depositor, the Depositor, as of the Closing Date and
concurrently with the execution and delivery hereof, does hereby transfer, assign, set over
and otherwise convey to the Trust, without recourse, but subject to the other terms and
provisions of this Trust Agreement, all of the right, title and interest of the Depositor in
and to the Trust Estate. The foregoing transfer, assignment, set over and conveyance does
not, and is not intended to, result in a creation or an assumption by the Trust of any
obligation of the Depositor or any other Person in connection with the Trust Estate or under
any agreement or instrument relating thereto, except as specifically set forth herein.
The Owner Trustee, on behalf of the Trust, acknowledges the conveyance to the Trust
by the Depositor, as of the Closing Date, of the Trust Estate, including all right, title
and interest of the Depositor in and to the Trust Estate. Concurrently with such conveyance
and in exchange therefor, the Trust has pledged the Trust Estate to the Indenture Trustee
and has executed the Certificates and the Notes and caused them to be duly authenticated and
delivered.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares that it shall hold
the Trust Estate in trust upon and subject to the conditions set forth herein for the use
and benefit of the Certificateholders, subject to the obligations of the Trust under the
Basic Documents. It is the intention of the parties hereto that the Trust constitute a
statutory trust under the Statutory Trust Statute and that this Trust Agreement constitute
the governing instrument of such statutory trust. Effective as of the date hereof, the
Owner Trustee shall have all rights, powers and duties set forth herein and in the Statutory
Trust Statute with respect to accomplishing the purposes of the Trust. It is the intention
of the parties hereto that, solely for federal, state and local income and franchise tax
purposes, the Trust shall be treated as an entity wholly owned by the Depositor or an
affiliate thereof, with the assets of the entity being the Trust Estate. It is the further
intention of the parties that an election to be treated as a REMIC ("REMIC I") for federal
income tax purposes be made with respect to the Trust Estate, exclusive of the Pre-Funding
Account and the Capitalized Interest Account, each of which shall be treated as an "outside
reserve fund" for purposes of the REMIC Provisions and that a second election to be treated
as a REMIC be made with respect to the REMIC I Regular Interests ("REMIC II"). The Issuer
will provide for the administration of the REMICs pursuant to Article XI of the Indenture.
The provisions of this Trust Agreement shall be interpreted to further such intentions.
Neither the Depositor nor any Certificateholder shall have any personal liability for any
liability or obligation of the Trust, other than the indemnification obligation provided in
Section 7.02 herein.
Section 2.07. Title to Trust Property. Legal title to the Trust Estate shall be vested at
all times in the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Estate to be vested in a trustee or
trustees, in which case title shall be deemed to be vested in the Owner Trustee, a
co-trustee and/or a separate trustee, as the case may be.
Section 2.08. Situs of Trust. The Trust will be located and administered in the State of
Delaware. All bank accounts maintained by the Owner Trustee on behalf of the Trust shall be
located in the State of Delaware or the State of Minnesota. The Trust shall not have any
employees in any state other than Delaware; provided, however, that nothing herein shall
restrict or prohibit the Owner Trustee from having employees within or without the State of
Delaware or taking actions outside the State of Delaware in order to comply with Section
2.03. Payments will be received by the Trust only in Delaware or Minnesota, and payments
will be made by the Trust only from Delaware or Minnesota. The only office of the Trust
will be at the Corporate Trust Office of the Owner Trustee in Delaware.
Section 2.09. Representations and Warranties of the Depositor. The Depositor hereby
represents and warrants to the Owner Trustee and the Enhancer that:
(a) The Depositor is duly organized and validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are currently owned and such
business is at present conducted.
(b) The Depositor is duly qualified to do business as a foreign corporation in good
standing and has obtained all necessary licenses and approvals in all jurisdictions in which
the ownership or lease of its property or the conduct of its business shall require such
qualifications and in which the failure to so qualify would have a material adverse effect
on the business, properties, assets or condition (financial or otherwise) of the Depositor
and the ability of the Depositor to perform under this Trust Agreement.
(c) The Depositor has the power and authority to execute and deliver this Trust Agreement
and to carry out its terms; the Depositor has full power and authority to sell and assign
the property to be sold and assigned to and deposited with the Trust as part of the Trust
and the Depositor has duly authorized such sale and assignment and deposit to the Trust by
all necessary corporate action; and the execution, delivery and performance of this Trust
Agreement have been duly authorized by the Depositor by all necessary corporate action.
(d) The consummation of the transactions contemplated by this Trust Agreement and the
fulfillment of the terms hereof do not conflict with, result in any material breach of any
of the terms and provisions of, or constitute (with or without notice or lapse of time) a
material default under, the articles of incorporation or bylaws of the Depositor, or any
material indenture, agreement or other instrument to which the Depositor is a party or by
which it is bound; nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other instrument (other
than pursuant to the Basic Documents); nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the Depositor of any court
or of any federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties.
Section 2.10. Payment of Trust Fees. The Owner Trustee shall pay the Trust's fees and
expenses incurred with respect to the performance of the Trust's duties under the Indenture.
ARTICLE III
Conveyance of the Mortgage Loans; Certificates
Section 3.01. Conveyance of the Mortgage Loans. The Depositor, concurrently with the
execution and delivery hereof, does hereby transfer, convey and assign to the Trust, on
behalf of the Securityholders and the Enhancer, without recourse, all its right, title and
interest in and to the Initial Mortgage Loans, including but not limited to any rights of
the Depositor under the Purchase Agreement. The Depositor shall also provide the Indenture
Trustee with the Policy.
The parties hereto intend that, for non-tax purposes, the transaction set forth
herein be a sale by the Depositor to the Trust of all of its right, title and interest in
and to the Initial Mortgage Loans. In the event that, for non-tax purposes, the transaction
set forth herein is not deemed to be a sale, the Depositor hereby grants to the Trust a
security interest in all of its right, title and interest in, to and under the Initial
Mortgage Loans, all distributions thereon and all proceeds thereof; and this Trust Agreement
shall constitute a security agreement under applicable law.
Section 3.02. Initial Ownership. Upon the formation of the Trust by the contribution by the
Depositor pursuant to Section 2.05 and the conveyance of the Initial Mortgage Loans pursuant
to Section 3.01 and the issuance of the Certificates, GMACM shall be the sole
Certificateholder of each Class of Certificates.
Section 3.03. Issuance of Certificates. The Certificates of each Class shall be issued in
minimum denominations of a Percentage Interest of 10.0000% and integral multiples of 0.0001%
in excess thereof. The Class SB Certificates shall be issued in substantially the form
attached hereto as Exhibit A. The Class R Certificates shall be issued in substantially the
form attached hereto as Exhibit I.
The Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee and authenticated in the manner
provided in Section 3.04. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Trust, shall be validly issued and entitled to the benefit of this
Trust Agreement, notwithstanding that such individuals or any of them shall have ceased to
be so authorized prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of authentication and delivery of such Certificates. A Person
shall become a Certificateholder and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such Person's acceptance of a Certificate
duly registered in such Person's name, pursuant to Section 3.05.
A transferee of a Certificate shall become a Certificateholder and shall be entitled
to the rights and subject to the obligations of a Certificateholder hereunder upon such
transferee's acceptance of a Certificate duly registered in such transferee's name pursuant
to and upon satisfaction of the conditions set forth in Section 3.05.
Section 3.04. Authentication of Certificates. Concurrently with the acquisition of the
Initial Mortgage Loans by the Trust, the Owner Trustee or the Certificate Paying Agent shall
cause the Certificates in an initial Percentage Interest of 100.00% to be executed on behalf
of the Trust, authenticated and delivered to or upon the written order of GMACM, signed by
its chairman of the board, its president or any vice president, without further corporate
action by GMACM, in authorized denominations. No Certificate shall entitle the
Certificateholder thereof to any benefit under this Trust Agreement or be valid for any
purpose unless there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A pr Exhibit I hereto, executed by the Owner
Trustee or the Certificate Paying Agent, by manual signature, and such authentication shall
constitute conclusive evidence that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their authentication.
Section 3.05. Registration of and Limitations on Transfer and Exchange of Certificates. The
Certificate Registrar shall keep or cause to be kept, at the office or agency maintained
pursuant to Section 3.09, a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as herein
provided. The Indenture Trustee shall be the initial Certificate Registrar. If the
Certificate Registrar resigns or is removed, the Owner Trustee shall appoint a successor
Certificate Registrar.
Subject to satisfaction of the conditions set forth below, upon surrender for
registration of transfer of any Certificate at the office or agency maintained pursuant to
Section 3.09, the Owner Trustee shall execute, authenticate and deliver (or shall cause the
Certificate Registrar as its authenticating agent to authenticate and deliver), in the name
of the designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate amount dated the date of authentication by the Owner
Trustee or any authenticating agent. At the option of a Certificateholder, Certificates may
be exchanged for other Certificates of authorized denominations of a like aggregate amount
upon surrender of the Certificates to be exchanged at the office or agency maintained
pursuant to Section 3.09.
Every Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Certificateholder or such Certificateholder's
attorney duly authorized in writing. Each Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the Certificate
Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or exchange of
Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
Except as described below, each Certificateholder shall establish its non-foreign
status by submitting to the Certificate Paying Agent an IRS Form W-9 and the Certificate of
Non-Foreign Status (in substantially the form attached hereto as Exhibit F).
A Certificate may be transferred to a Certificateholder unable to establish its
non-foreign status as described in the preceding paragraph only if such Certificateholder
provides an Opinion of Counsel to the Depositor, the Certificate Registrar and the Enhancer,
which Opinion of Counsel shall not be an expense of the Trust, the Owner Trustee, the
Certificate Registrar or the Depositor, satisfactory to the Depositor and the Enhancer, that
such transfer (1) will not affect the tax status of the Owner Trust and (2) will not
adversely affect the interests of any Securityholder or the Enhancer, including, without
limitation, as a result of the imposition of any United States federal withholding taxes on
the Owner Trust (except to the extent that such withholding taxes would be payable solely
from amounts otherwise distributable to the Certificate of the prospective transferee). If
such transfer occurs and such foreign Certificateholder becomes subject to such United
States federal withholding taxes, any such taxes will be withheld by the Indenture Trustee
at the direction of the Tax Matters Partner. Each Certificateholder unable to establish its
non-foreign status shall submit to the Certificate Paying Agent a copy of its Form W-8-BEN
or such successor form as required by then-applicable regulations and shall resubmit such
form every three years or with such frequency as required by then-applicable regulations.
No transfer, sale, pledge or other disposition of a Certificate shall be made unless
such transfer, sale, pledge or other disposition is exempt from the registration
requirements of the Securities Act and any applicable state securities laws or is made in
accordance with the Securities Act and such state laws. In the event of any such transfer,
the Certificate Registrar or the Depositor shall prior to such transfer require the
transferee to execute (A) either (i) (a) an investment letter in substantially the form
attached hereto as Exhibit C (or in such form and substance reasonably satisfactory to the
Certificate Registrar and the Depositor) which investment letters shall not be an expense of
the Trust, the Owner Trustee, the Certificate Registrar, the Servicer or the Depositor and
which investment letter states that, among other things, such transferee (a) is a "qualified
institutional buyer" as defined under Rule 144A, acting for its own account or the accounts
of other "qualified institutional buyers" as defined under Rule 144A, and (b) is aware that
the proposed transferor intends to rely on the exemption from registration requirements
under the Securities Act, provided by Rule 144A or (ii) (a) a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Certificate Registrar and the
Depositor that such transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the Securities Act and such state laws or is being
made pursuant to the Securities Act and such state laws, which Opinion of Counsel shall not
be an expense of the Trust, the Owner Trustee, the Certificate Registrar, the Servicer or
the Depositor and (b) the transferee executes a representation letter, substantially in the
form of Exhibit D hereto, and the transferor executes a representation letter, substantially
in the form of Exhibit E hereto, each acceptable to and in form and substance satisfactory
to the Certificate Registrar and the Depositor certifying the facts surrounding such
transfer, which representation letters shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Servicer or the Depositor and (B) the Certificate of
Non-Foreign Status (in substantially the form attached hereto as Exhibit F) acceptable to
and in form and substance reasonably satisfactory to the Certificate Registrar and the
Depositor, which certificate shall not be an expense of the Trust, the Owner Trustee, the
Certificate Registrar or the Depositor. If such Certificateholder is unable to provide a
Certificate of Non-Foreign Status, such Certificateholder must provide an Opinion of Counsel
as described in the preceding paragraph. The Certificateholder desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the
Certificate Registrar, the Servicer , the Enhancer and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance with such
federal and state laws. No transfer of Certificates or any interest therein shall be made
to any Plan, any Person acting, directly or indirectly, on behalf of any such Plan or any
Person acquiring such Certificates with Plan Assets unless the Depositor, the Owner Trustee,
the Certificate Registrar and the Servicer are provided with an Opinion of Counsel that
establishes to the satisfaction of the Depositor, the Owner Trustee, the Certificate
Registrar and the Servicer that the purchase of Certificates is permissible under applicable
law, will not constitute or result in any prohibited transaction under ERISA or Section 4975
of the Code and will not subject the Depositor, the Owner Trustee, the Certificate Registrar
or the Servicer to any obligation or liability (including obligations or liabilities under
ERISA or Section 4975 of the Code) in addition to those undertaken in this Trust Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer. In lieu of such Opinion of Counsel, a Plan, any
Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring
such Certificates with Plan Assets of a Plan may provide a certification in the form of
Exhibit G to this Trust Agreement, which the Depositor, the Owner Trustee, the Certificate
Registrar and the Servicer may rely upon without further inquiry or investigation. Neither
an Opinion of Counsel nor a certification will be required in connection with the initial
transfer of any such Certificate by the Depositor to an Affiliate of the Depositor (in which
case, the Depositor or any such Affiliate shall be deemed to have represented that such
Affiliate is not a Plan or a Person investing Plan Assets of any Plan) and the Owner Trustee
shall be entitled to conclusively rely upon a representation (which, upon the request of the
Owner Trustee, shall be a written representation) from the Depositor of the status of such
transferee as an Affiliate of the Depositor.
In addition, with respect to each Class R Certificate:
(i) Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to
have agreed to be bound by the following provisions and to have irrevocably authorized the
Certificate Paying Agent or its designee under clause (iii)(A) below to deliver payments to
a Person other than such Person and to negotiate the terms of any mandatory sale under
clause (iii)(B) below and to execute all instruments of transfer and to do all other things
necessary in connection with any such sale. The rights of each Person acquiring any
Ownership Interest in a Class R Certificate are expressly subject to the following
provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R
Certificate shall be a Permitted Transferee and shall promptly notify the Owner
Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a
Class R Certificate, the Certificate Registrar shall require delivery to it, and
shall not register the Transfer of any Class R Certificate until its receipt of, (I)
an affidavit and agreement (a "Transfer Affidavit and Agreement," in the form
attached hereto as Exhibit J-1) from the proposed Transferee, in form and substance
satisfactory to the Servicer, representing and warranting, among other things, that
it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the
Class R Certificate that is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person who is not a Permitted Transferee, that for so long
as it retains its Ownership Interest in a Class R Certificate, it will endeavor to
remain a Permitted Transferee, and that it has reviewed the provisions of this
Section 3.05 and agrees to be bound by them, and (II) a certificate, in the form
attached hereto as Exhibit J-2, from the Certificateholder of a Class R Certificate
wishing to transfer the Class R Certificate, in form and substance satisfactory to
the Servicer, representing and warranting, among other things, that no purpose of the
proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a
proposed Transferee under clause (B) above, if a Responsible Officer of the
Certificate Registrar who is assigned to this Agreement has actual knowledge that the
proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership
Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any
other Person to whom such Person attempts to transfer its Ownership Interest in a
Class R Certificate and (y) not to transfer its Ownership Interest unless it provides
a certificate to the Certificate Registrar in the form attached hereto as Exhibit J-2.
(E) Each Person holding or acquiring an Ownership Interest in a Class R
Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give
the Certificate Registrar written notice that it is a "pass-through interest holder"
within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is,
or is holding an Ownership Interest in a Class R Certificate on behalf of, a
"pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Class R
Certificate only if it shall have received the Transfer Affidavit and Agreement, a
certificate of the Certificateholder of a Class R Certificate requesting such transfer in
the form attached hereto as Exhibit G-2 and all of such other documents as shall have been
reasonably required by the Certificate Registrar as a condition to such registration.
Transfers of the Class R Certificates to Non-United States Persons and Disqualified
Organizations are prohibited.
(iii) (A) If any Disqualified Organization shall become a holder of a Class R
Certificate, then the last preceding Permitted Transferee shall be restored, to the
extent permitted by law, to all rights and obligations as Certificateholder of a
Class R Certificate thereof retroactive to the date of registration of such Transfer
of such Class R Certificate. If a Non-United States Person shall become a holder of
a Class R Certificate, then the last preceding United States Person shall be
restored, to the extent permitted by law, to all rights and obligations as
Certificateholder of a Class R Certificate thereof retroactive to the date of
registration of such Transfer of such Class R Certificate. If a transfer of a
Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations
Section 1.860E-1 or Section 1.860G-3, then the last preceding Permitted Transferee
shall be restored, to the extent permitted by law, to all rights and obligations as
Certificateholder of a Class R Certificate thereof retroactive to the date of
registration of such Transfer of such Class R Certificate. The Certificate Registrar
shall be under no liability to any Person for any registration of Transfer of a
Class R Certificate that is in fact not permitted by this Section 3.05 or for making
any payments due on such Certificate to the holder thereof or for taking any other
action with respect to such holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Certificateholder of a
Class R Certificate in violation of the restrictions in this Section 3.05 and to the
extent that the retroactive restoration of the rights of the Certificateholder of
such Class R Certificate as described in clause (iii)(A) above shall be invalid,
illegal or unenforceable, then the Servicer shall have the right, without notice to
the holder or any prior holder of such Class R Certificate, to sell such Class R
Certificate to a purchaser selected by the Servicer on such terms as the Servicer may
choose. Such purported Transferee shall promptly endorse and deliver each Class R
Certificate in accordance with the instructions of the Servicer. Such purchaser may
be the Servicer itself or any Affiliate of the Servicer. The proceeds of such sale,
net of the commissions (which may include commissions payable to the Servicer or its
Affiliates), expenses and taxes due, if any, will be remitted by the Servicer to such
purported Transferee. The terms and conditions of any sale under this clause
(iii)(B) shall be determined in the sole discretion of the Servicer, and the Servicer
shall not be liable to any Person having an Ownership Interest in a Class R
Certificate as a result of its exercise of such discretion.
(iv) The Certificate Paying Agent shall make available, upon written request from
the Internal Revenue Service and any potentially affected Person, all information necessary
to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a
Class R Certificate to any Person who is a Disqualified Organization, including the
information regarding "excess inclusions" of such Class R Certificates required to be
provided to the Internal Revenue Service and certain Persons as described in Treasury
Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund, partnership, trust,
estate or organization described in Section 1381 of the Code that holds an Ownership
Interest in a Class R Certificate having as among its record holders at any time any Person
who is a Disqualified Organization. Reasonable compensation for providing such information
may be required by the REMIC Administrator before it will provide such information to any
such potentially affected Person.
(v) The provisions of this Section 3.05 set forth prior to this clause (v) may be
modified, added to or eliminated, provided that there shall have been delivered to the Owner
Trustee the following:
(A) written notification from each Rating Agency to the effect that the
modification, addition to or elimination of such provisions will not cause such
Rating Agency to downgrade its then-current ratings, if any, of any Class of the
Notes below the lower of the then-current rating or the rating assigned to such Notes
as of the Closing Date by such Rating Agency without regard to the Policy; and
(B) subject to Section 10.01(f), an Officers' Certificate of the Servicer stating
that the Servicer has received an Opinion of Counsel, in form and substance satisfactory to
the Servicer, to the effect that such modification, addition to or absence of such
provisions will not cause any portion of any of the REMICs to cease to qualify as a REMIC
and will not cause (x) any portion of any of the REMICs to be subject to an entity-level tax
caused by the Transfer of any Class R Certificate to a Person that is a Disqualified
Organization or (y) a Certificateholder or another Person to be subject to a REMIC-related
tax caused by the Transfer of a Class R Certificate to a Person that is not a Permitted
Transferee.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any mutilated
Certificate shall be surrendered to the Certificate Registrar, or if the Certificate
Registrar shall receive evidence to its satisfaction of the destruction, loss or theft of
any Certificate and (b) there shall be delivered to the Certificate Registrar and the Owner
Trustee such security or indemnity as may be required by them to save each of them and the
Issuer from harm, then in the absence of notice to the Certificate Registrar or the Owner
Trustee that such Certificate has been acquired by a bona fide purchaser, the Owner Trustee
on behalf of the Trust shall execute and the Owner Trustee or the Certificate Paying Agent,
as the Trust's authenticating agent, shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and denomination. In connection with the issuance of any new Certificate under this
Section 3.06, the Owner Trustee or the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this Section 3.06 shall
constitute conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be found at any time.
Section 3.07. Persons Deemed Certificateholders. Prior to due presentation of a Certificate
for registration of transfer, the Owner Trustee, the Certificate Registrar or any
Certificate Paying Agent may treat the Person in whose name any Certificate is registered in
the Certificate Register as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 5.02 and for all other purposes whatsoever, and none of
the Trust, the Owner Trustee, the Certificate Registrar or any Paying Agent shall be bound
by any notice to the contrary.
Section 3.08. Access to List of Certificateholders' Names and Addresses. The Certificate
Registrar shall furnish or cause to be furnished to the Depositor or the Owner Trustee,
within 15 days after receipt by the Certificate Registrar of a written request therefor from
the Depositor or the Owner Trustee, a list, in such form as the Depositor or the Owner
Trustee, as the case may be, may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more Certificateholders,
or one or more Certificateholders evidencing not less than 25% of the Certificate Percentage
Interest of any Class, apply in writing to the Owner Trustee or the Certificate Registrar,
and such application states that the applicants desire to communicate with other
Certificateholders, with respect to their rights under this Agreement or under the
Certificates and such application is accompanied by a copy of the communication that such
applicants propose to transmit, then the Owner Trustee shall, within five (5) Business Days
after the receipt of such application, afford such applicants access during normal business
hours to the current list of Certificateholders. Each Certificateholder, by receiving and
holding a Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Registrar or the Owner Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such information was
derived.
Section 3.09. Maintenance of Office or Agency. The Owner Trustee, on behalf of the Trust,
shall maintain in The City of New York an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Owner Trustee in respect of the Certificates and the Basic
Documents may be served. The Owner Trustee initially designates the Corporate Trust Office
of the Indenture Trustee (or such other office as the Indenture Trustee may specify to the
Owner Trustee) as its office for such purposes. The Owner Trustee shall give prompt written
notice to the Depositor, the Certificateholders and the Enhancer of any change in the
location of the Certificate Register or any such office or agency.
Section 3.10. Certificate Paying Agent.
(a) The Certificate Paying Agent shall make distributions to Certificateholders from the
Distribution Account on behalf of the Trust in accordance with the provisions of the
Certificates and Section 5.01 hereof from payments remitted to the Certificate Paying Agent
by the Indenture Trustee pursuant to Section 3.05 of the Indenture. The Trust hereby
appoints the Indenture Trustee as Certificate Paying Agent. The Certificate Paying Agent
shall:
(i) hold all sums held by it for the payment of amounts due with respect to the
Certificates in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust of which it has actual
knowledge in the making of any payment required to be made with respect to the Certificates;
(iii) at any time during the continuance of any such default, upon the written request of
the Owner Trustee, forthwith pay to the Owner Trustee on behalf of the Trust all sums so
held in trust by such Certificate Paying Agent;
(iv) immediately resign as Certificate Paying Agent and forthwith pay to the Owner Trustee
on behalf of the Trust all sums held by it in trust for the payment of Certificates if at
any time it ceases to meet the standards required to be met by the Certificate Paying Agent
at the time of its appointment;
(v) comply with all requirements of the Code with respect to the withholding from any
payments made by it on any Certificates of any applicable withholding taxes imposed thereon
and with respect to any applicable reporting requirements in connection therewith; and
(vi) deliver to the Owner Trustee a copy of the report to Certificateholders prepared with
respect to each Payment Date by the Servicer pursuant to Section 4.01 of the Servicing
Agreement.
(b) The Trust may revoke such power and remove the Certificate Paying Agent if the Owner
Trustee determines in its sole discretion that the Certificate Paying Agent shall have
failed to perform its obligations under this Trust Agreement in any material respect. The
Indenture Trustee shall be permitted to resign as Certificate Paying Agent upon 30 days'
written notice to the Owner Trustee and the Enhancer; provided the Indenture Trustee is also
resigning as Paying Agent under the Indenture at such time. In the event that the Indenture
Trustee shall no longer be the Certificate Paying Agent under this Trust Agreement and
Paying Agent under the Indenture, the Owner Trustee shall appoint a successor to act as
Certificate Paying Agent (which shall be a bank or trust company) and which shall also be
the successor Paying Agent under the Indenture. The Owner Trustee shall cause such
successor Certificate Paying Agent or any additional Certificate Paying Agent appointed by
the Owner Trustee to execute and deliver to the Owner Trustee an instrument to the effect
set forth in this Section 3.10 as it relates to the Certificate Paying Agent. The
Certificate Paying Agent shall return all unclaimed funds to the Trust and upon removal of a
Certificate Paying Agent such Certificate Paying Agent shall also return all funds in its
possession to the Trust. The provisions of Sections 6.01, 6.04 and 7.01 shall apply to the
Certificate Paying Agent to the extent applicable. Any reference in this Trust Agreement to
the Certificate Paying Agent shall include any co-paying agent unless the context requires
otherwise.
(c) The Certificate Paying Agent shall establish and maintain with itself the
Distribution Account in which the Certificate Paying Agent shall deposit, on the same day as
it is received from the Indenture Trustee, each remittance received by the Certificate
Paying Agent with respect to payments made pursuant to the Indenture. Pending any such
distribution, funds deposited in the Distribution Account on a Payment Date and not
distributed to the Certificateholders on such Payment Date shall be invested by the
Certificate Paying Agent in Permitted Investments selected by the Servicer (or if no
selection is made by the Servicer in Permitted Investments described in clause (v) of the
definition thereof) maturing no later than the Business Day preceding the next succeeding
Payment Date (except that any investment in the institution with which the Distribution
Account is maintained may mature on such Payment Date and shall not be sold or disposed of
prior to the maturity). All investment income earned in respect of funds on deposit in the
Distribution Account shall be credited to the Distribution Account. The Certificate Paying
Agent shall make all distributions on the Certificates as provided in Section 3.05 of the
Indenture and Section 5.01(a) of this Trust Agreement from moneys on deposit in the
Distribution Account.
Section 3.11. Cooperation. The Owner Trustee shall cooperate in all respects with any
reasonable request by the Enhancer for action to preserve or enforce the Enhancer's rights
or interest under this Trust Agreement or the Insurance Agreement, consistent with this
Trust Agreement and without limiting the rights of the Certificateholders as otherwise
expressly set forth in this Trust Agreement.
Section 3.12. Intentionally Omitted.
Section 3.13. Subordination. Except as otherwise provided in the Basic Documents, for so
long as any Notes are outstanding or unpaid, the Certificateholders will generally be
subordinated in right of payment, under the Certificates or otherwise, to payments to the
Noteholders under, or otherwise related to, the Indenture. If an Event of Default has
occurred and is continuing under the Indenture, the Certificates will be fully subordinated
to obligations owing by the Trust to the Noteholders and the Enhancer under, or otherwise
related to, the Indenture, and no distributions will be made on the Certificates until the
Noteholders and the Indenture Trustee and the Enhancer have been irrevocably paid in full.
Section 3.14. No Priority Among Certificates. All Certificateholders shall rank equally as
to amounts distributable upon the liquidation, dissolution or winding up of the Trust, with
no preference or priority being afforded to any Certificateholders over any other
Certificateholders, except that amounts distributable will be distributed first to the Class
SB Certificates, in an amount equal to the Class SB Distribution Amount, before being
distributed to any other Class of Certificates.
ARTICLE IV
Authority and Duties of Owner Trustee
Section 4.01. General Authority. The Owner Trustee is authorized and directed to execute
and deliver the Basic Documents to which the Trust is to be a party and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents to which the
Trust is to be a party, as well as any certificate that supports the factual assumptions
made in any Opinion of Counsel delivered on the Closing Date, and any amendment or other
agreement or instrument described herein, in each case, in such form as the Owner Trustee
shall approve, as evidenced conclusively by the Owner Trustee's execution thereof. In
addition to the foregoing, the Owner Trustee is obligated to take all actions required of
the Trust pursuant to the Basic Documents.
Section 4.02. General Duties. The Owner Trustee shall be responsible to administer the
Trust pursuant to the terms of this Trust Agreement and the other Basic Documents to which
the Trust is a party and in the interest of the Certificateholders, subject to the Basic
Documents and in accordance with the provisions of this Trust Agreement.
Section 4.03. Action upon Instruction.
(a) Subject to this Article IV and Section 11.13 of this Trust Agreement and in
accordance with the terms of the Basic Documents, the Certificateholders may by written
instruction direct the Owner Trustee in the management of the Trust. Such direction may be
exercised at any time by written instruction of the Certificateholders pursuant to this
Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be required to take any
action hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to result in
liability on the part of the Owner Trustee or is contrary to the terms hereof or of any
other Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative courses of action
permitted or required by the terms of this Trust Agreement or under any other Basic
Document, or in the event that the Owner Trustee is unsure as to the application of any
provision of this Trust Agreement or any other Basic Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any other
applicable provision, or in the event that this Trust Agreement permits any determination by
the Owner Trustee or is silent or is incomplete as to the course of action that the Owner
Trustee is required to take with respect to a particular set of facts, the Owner Trustee
shall promptly give notice (in such form as shall be appropriate under the circumstances) to
the Certificateholders (with a copy to the Enhancer) requesting instruction as to the course
of action to be adopted, and to the extent the Owner Trustee acts in good faith in
accordance with any written instructions received from Certificateholders of Certificates
representing a majority of the aggregate Certificate Percentage Interest of each Class of
Certificates, the Owner Trustee shall not be liable on account of such action to any
Person. If the Owner Trustee shall not have received appropriate instruction within 10 days
of such notice (or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action not inconsistent with this Trust Agreement or the
other Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and the Owner Trustee shall have no liability to any Person for such
action or inaction.
Section 4.04. No Duties Except as Specified under Specified Documents or in Instructions.
The Owner Trustee shall not have any duty or obligation to manage, make any payment with
respect to, register, record, sell, dispose of, or otherwise deal with the Trust Estate, or
to otherwise take or refrain from taking any action under, or in connection with, any
document contemplated hereby to which the Owner Trustee is a party, except as expressly
provided (i) in accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Trust Agreement, (ii) in accordance with the Basic Documents
and (iii) in accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 4.03; and no implied duties or obligations shall be read into this Trust
Agreement or any other Basic Document against the Owner Trustee. The Owner Trustee shall
have no responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any security
interest or lien granted to it hereunder or to prepare or file any filing with the
Commission for the Trust or to record this Trust Agreement or any other Basic Document. The
Owner Trustee nevertheless agrees that it will, at its own cost and expense, promptly take
all action as may be necessary to discharge any liens on any part of the Trust Estate that
result from actions by, or claims against, the Owner Trustee that are not related to the
ownership or the administration of the Trust Estate.
Section 4.05. Restrictions.
(a) (a) The Owner Trustee shall not take any action (i) that is inconsistent with
the purposes of the Trust set forth in Section 2.03 or (ii) that, to the actual knowledge of
the Owner Trustee, would cause the Trust to be treated as an association (or a
publicly-traded partnership) taxable as a corporation or a taxable mortgage pool for federal
income tax purposes or would cause any of the REMICs to fail to qualify as a REMIC or cause
any of the REMICs to be subject to tax at any time that any of the Notes or Certificates are
outstanding or any obligations are due and owing to the Enhancer under the Insurance
Agreement. The Certificateholders shall not direct the Owner Trustee to take action that
would violate the provisions of this Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the Trust's properties or
assets, including those included in the Trust Estate, to any person unless (i) it shall have
received an Opinion of Counsel to the effect that such transaction will not have any
material adverse tax consequence to the Trust or any Certificateholder and (ii) such
conveyance or transfer shall not violate the provisions of Section 3.16(b) of the Indenture.
Section 4.06. Prior Notice to Certificateholders and the Enhancer with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not take action
unless, at least 30 days before the taking of such action, the Owner Trustee shall have
notified the Certificateholders and the Enhancer in writing of the proposed action and the
Enhancer, or if an Enhancer Default has occurred and is continuing, the Certificateholders
of Certificates representing a majority of the aggregate Certificate Percentage Interest
shall not have notified the Owner Trustee in writing prior to the 30th day after such notice
is given that the Enhancer or such Certificateholders, as applicable, have withheld consent
or provided alternative direction:
(a) the initiation of any Proceeding by the Trust (except Proceedings brought in
connection with the collection of cash distributions due and owing under the Mortgage Loans)
and the compromise of any Proceeding brought by or against the Trust (except with respect to
the aforementioned Proceedings for collection of cash distributions due and owing under the
Mortgage Loans);
(b) the election by the Trust to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Statutory Trust Statute);
(c) the amendment of any of the Basic Documents in circumstances where the consent of any
Noteholder is required;
(d) the amendment of any of the Basic Documents in circumstances where the consent of any
Noteholder is not required and such amendment materially and adversely affects the interest
of the Certificateholders;
(e) the appointment pursuant to the Indenture of a successor Note Registrar, Paying Agent
or Indenture Trustee or pursuant to this Trust Agreement of a successor Certificate
Registrar or Certificate Paying Agent or the consent to the assignment by the Note
Registrar, Paying Agent, Indenture Trustee, Certificate Registrar or Certificate Paying
Agent of its obligations under the Indenture or this Trust Agreement, as applicable.
Section 4.07. Action by Certificateholders with Respect to Certain Matters. The Owner
Trustee shall not have the power, except upon the written direction of Certificateholders of
Certificates evidencing not less than a majority of the aggregate Certificate Percentage
Interest of each Class of Certificates, and with the consent of the Enhancer, to (a) remove
the Servicer under the Servicing Agreement pursuant to Section 7.01 thereof or (b) except as
expressly provided in the Basic Documents, sell the Mortgage Loans after the termination of
the Indenture.
Section 4.08. Action by Certificateholders with Respect to Bankruptcy. The Owner Trustee
shall not have the power to commence a voluntary Proceeding in bankruptcy relating to the
Trust without the unanimous prior approval of all Certificateholders, and with the consent
of the Enhancer, and the delivery to the Owner Trustee by each such Certificateholder of a
certificate certifying that such Certificateholder reasonably believes that the Trust is
insolvent.
Section 4.09. Restrictions on Certificateholders' Power. The Certificateholders shall not
direct the Owner Trustee to take or to refrain from taking any action if such action or
inaction would be contrary to any obligation of the Trust or the Owner Trustee under this
Trust Agreement or any of the other Basic Documents or would be contrary to Section 2.03,
nor shall the Owner Trustee be obligated to follow any such direction, if given.
Section 4.10. Majority Control. Except as expressly provided herein, any action that may be
taken by the Certificateholders under this Trust Agreement may be taken by the
Certificateholders of Certificates evidencing not less than a majority of the aggregate
Certificate Percentage Interest of the Class specified, if any. Except as expressly
provided herein, any written notice of the Certificateholders of a Class delivered pursuant
to this Trust Agreement shall be effective if signed by the Certificateholders of
Certificates evidencing not less than a majority of the aggregate Certificate Percentage
Interest of such Class at the time of the delivery of such notice.
Section 4.11. Doing Business in Other Jurisdictions. Notwithstanding anything contained
herein to the contrary, neither Wilmington Trust Company nor the Owner Trustee shall be
required to take any action in any jurisdiction other than in the State of Delaware if the
taking of such action will, even after the appointment of a co-trustee or separate trustee
in accordance with Section 9.05 hereof, (i) require the consent or approval or authorization
or order of or the giving of notice to, or the registration with or the taking of any other
action in respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware; (ii) result in any fee, tax or other
governmental charge under the laws of the State of Delaware becoming payable by Wilmington
Trust Company, or (iii) subject Wilmington Trust Company to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by Wilmington Trust Company or the Owner
Trustee, as the case may be, contemplated hereby.
ARTICLE V
Application of Trust Funds
Section 5.01. Distributions.
(a) (a) On each Payment Date occurring in the months of March, June, September and
December, on any date on which the Trust is terminated pursuant to Section 8.01, and on each
other Payment Date for which the Certificate Paying Agent has received written notice from
the Certificateholders by the Determination Date relating to such Payment Date requesting
funds on deposit in the Distribution Account to be distributed, the Certificate Paying Agent
shall distribute to the Certificateholders all funds on deposit in the Distribution Account
and available therefor as provided in Section 3.05 of the Indenture. Such amounts shall be
distributed, first, to the Certificateholders of the Class SB Certificates, in an amount
equal to the Class SB Distribution Amount for such Payment Date and the Class SB
Distribution Amount for any previous Payment Date to the extent not previously paid, and
second, to the Certificateholders of the Class R Certificates, any amounts remaining. All
distributions made pursuant to this Section to any Class of Certificates shall be
distributed to the Certificateholders of such Class pro rata based on the respective
Percentage Interests thereof.
(b) In the event that any withholding tax is imposed on the distributions (or allocations
of income) to a Certificateholder, such tax shall reduce the amount otherwise distributable
to such Certificateholder in accordance with this Section 5.01. The Certificate Paying
Agent is hereby authorized and directed to retain or cause to be retained from amounts
otherwise distributable to the Certificateholders sufficient funds for the payment of any
tax that is legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate Proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such Proceedings). The amount of any
withholding tax imposed with respect to a Certificateholder shall be treated as cash
distributed to such Certificateholder at the time it is withheld by the Certificate Paying
Agent and remitted to the appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution (such as a distribution to a
non-U.S. Certificateholder), the Certificate Paying Agent may in its sole discretion
withhold such amounts in accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the creditors of the
Trust, including the Noteholders
(d) Allocations of profits, income and losses, as determined for federal
income tax purposes, shall be made among the Classes of Certificates in accordance with the
REMIC Provisions and within each Class of Certificates to the Certificateholders on a pro
rata basis based on the Certificate Percentage Interests thereof.
(e) On each Payment Date, the following amounts in the following order of priority, from
the amounts allocable to the Noteholders and Certificateholders pursuant to Section 3.05 of
the Indenture, shall be deemed to have been distributed by REMIC I to REMIC II on account of
the REMIC I Regular Interests or shall be withdrawn from the Distribution Account and
distributed to the holders of the Class R-I Certificates, as the case may be:
(i) first, (1) to the Holders of REMIC I Regular Interests LTB, in an
amount equal to (A) the Uncertificated Accrued Interest for such Payment Date, plus
(B) any amounts in respect thereof remaining unpaid from previous Payment Dates; and
second, (2) to Holders of REMIC I Regular Interest LTA in an amount equal to (A) the
Uncertificated Accrued Interest for such Payment Date, plus (B) any amounts in
respect thereof remaining unpaid from previous Payment Dates; and
(ii) to the Holders of REMIC I Regular Interests, in an amount equal to the
remainder of the Available Distribution Amount for such Distribution Date after the
distributions made pursuant to clause (i) above, allocated in the following order of
priority:
(A) to the Holders of REMIC I Regular Interest LTA, until the
Uncertificated Principal Balance of REMIC I Regular Interest LTA is reduced to
zero;
(B) to the Holders of REMIC I Regular Interests LTB sequentially in
the order of their numerical designation, until the Uncertificated Principal
Balance of each successive REMIC I Regular Interest LTB is reduced to zero; and
(C) any remaining amount to the Holders of the Class R-I
Certificates.
(f) On each Payment Date, the amounts allocable to the Noteholders and Certificateholders
pursuant to Section 3.05 of the Indenture and deemed to have been distributed to REMIC I
from REMIC II pursuant to paragraph (e), shall be deemed to have been distributed by REMIC
II to the holders of the REMIC II Regular Interests on account of the REMIC I Regular
Interests or shall be withdrawn from the Distribution Account and distributed to the holders
of the Class R-II Certificates, as the case may be in accord with the provisions relating
thereto in Section 3.05 of the Indenture and in this Trust Agreement.
Section 5.02. Method of Payment. Subject to Section 8.01(c), distributions required to be
made to Certificateholders on any Payment Date as provided in Section 5.01 shall be made to
each Certificateholder of record on the preceding Record Date by wire transfer, in
immediately available funds, to the account of each Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall have provided
to the Certificate Registrar appropriate written instructions at least five Business Days
prior to such Payment Date or, if not, by check or money order mailed to such
Certificateholder at the address of such Certificateholder appearing in the Certificate
Register.
Section 5.03. Signature on Returns. The REMIC Administrator, as agent for the Owner
Trustee, shall sign on behalf of the Trust the tax returns of the REMICs. The Owner Trustee
shall give the REMIC Administrator all such powers of attorney as are needed to enable the
REMICs Administrator to prepare and sign such tax returns. In the event that approval from
the applicable District Director of the Internal Revenue Service for the REMIC Administrator
to sign the tax returns is not forthcoming following application, the REMIC Administrator
shall prepare and the Owner Trustee shall sign the tax returns for the REMICs.
Section 5.04. Statements to Certificateholders. On each Payment Date, the Certificate
Paying Agent shall make available to each Certificateholder the statement or statements
provided to the Owner Trustee and the Certificate Paying Agent by the Servicer pursuant to
Section 4.01 of the Servicing Agreement with respect to such Payment Date.
ARTICLE VI
Concerning the Owner Trustee
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts the trusts hereby
created and agrees to perform its duties hereunder with respect to such trusts, but only
upon the terms of this Trust Agreement. The Owner Trustee and the Certificate Paying Agent
also agree to disburse all moneys actually received by it constituting part of the Trust
Estate upon the terms of this Trust Agreement and the other Basic Documents. The Owner
Trustee shall not be answerable or accountable hereunder or under any Basic Document under
any circumstances, except (i) for its own willful misconduct, negligence or bad faith or
negligent failure to act or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 6.03 expressly made by the Owner Trustee. In particular, but
not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) no provision of this Trust Agreement or any other Basic Document shall require the
Owner Trustee to expend or risk funds or otherwise incur any financial liability in the
performance of any of its rights, duties or powers hereunder or under any other Basic
Document if the Owner Trustee shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not reasonably assured or
provided to it;
(b) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced
by or arising under any of the Basic Documents, including the principal of and interest on
the Notes;
(c) the Owner Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Trust Agreement or for the due execution hereof by the Depositor for the
form, character, genuineness, sufficiency, value or validity of any of the Trust Estate, or
for or in respect of the validity or sufficiency of the Basic Documents, the Notes, the
Certificates, other than the certificate of authentication on the Certificates, if executed
by the Owner Trustee and the Owner Trustee shall in no event assume or incur any liability,
duty, or obligation to any Noteholder or to any Certificateholder, other than as expressly
provided for herein or in the other Basic Documents;
(d) the execution, delivery, authentication and performance by the Owner Trustee of this
Trust Agreement will not require the authorization, consent or approval of, the giving of
notice to, the filing or registration with, or the taking of any other action with respect
to, any governmental authority or agency;
(e) the Owner Trustee shall not be liable for the default or misconduct of the Depositor,
Indenture Trustee or the Servicer under any of the Basic Documents or otherwise and the
Owner Trustee shall have no obligation or liability to perform the obligations of the Trust
under this Trust Agreement or the other Basic Documents that are required to be performed by
the Indenture Trustee under the Indenture or the Sellers under the Purchase Agreement; and
(f) the Owner Trustee shall be under no obligation to exercise any of the rights or
powers vested in it or duties imposed by this Trust Agreement, or to institute, conduct or
defend any litigation under this Trust Agreement or otherwise or in relation to this Trust
Agreement or any other Basic Document, at the request, order or direction of any of the
Certificateholders, unless such Certificateholders have offered to the Owner Trustee
security or indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Owner Trustee therein or thereby. Notwithstanding the foregoing, the
Enhancer may direct any litigation under this Trust Agreement. The right of the Owner
Trustee to perform any discretionary act enumerated in this Trust Agreement or in any other
Basic Document shall not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its negligence, bad faith or willful misconduct in the performance
of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish to the
Securityholders promptly upon receipt of a written reasonable request therefor, duplicates
or copies of all reports, notices, requests, demands, certificates, financial statements and
any other instruments furnished to the Trust under the Basic Documents.
Section 6.03. Representations and Warranties. The Owner Trustee hereby represents and
warrants to the Depositor, for the benefit of the Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in good standing
under the laws of the State of Delaware. It has all requisite corporate power and authority
to execute, deliver and perform its obligations under this Trust Agreement;
(b) It has taken all corporate action necessary to authorize the execution and delivery
by it of this Trust Agreement, and this Trust Agreement will be executed and delivered by
one of its officers who is duly authorized to execute and deliver this Trust Agreement on
its behalf;
(c) Neither the execution nor the delivery by it of this Trust Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance by it with any of
the terms or provisions hereof will contravene any federal or Delaware law, governmental
rule or regulation governing the banking or trust powers of the Owner Trustee or any
judgment or order binding on it, or constitute any default under its charter documents or
bylaws or any indenture, mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound;
(d) This Trust Agreement, assuming due authorization, execution and delivery by the Owner
Trustee and the Depositor, constitutes a valid, legal and binding obligation of the Owner
Trustee, enforceable against it in accordance with the terms hereof subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement
of creditors' rights generally and to general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(e) The Owner Trustee is not in default with respect to any order or decree of any court
or any order, regulation or demand of any federal, state, municipal or governmental agency,
which default might have consequences that would materially and adversely affect the
condition (financial or other) or operations of the Owner Trustee or its properties or might
have consequences that would materially adversely affect its performance hereunder; and
(f) No litigation is pending or, to the best of the Owner Trustee's knowledge, threatened
against the Owner Trustee which would prohibit its entering into this Trust Agreement or
performing its obligations under this Trust Agreement.
Section 6.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond,
or other document or paper believed by it to be genuine and believed by it to be signed by
the proper party or parties. The Owner Trustee may accept a certified copy of a resolution
of the board of directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer or other
authorized officers of the relevant party, as to such fact or matter and such certificate
shall constitute full protection to the Owner Trustee for any action taken or omitted to be
taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in the performance of
its duties and obligations under this Trust Agreement or the other Basic Documents, the
Owner Trustee (i) may act directly or through its agents, attorneys, custodians or nominees
(including persons acting under a power of attorney) pursuant to agreements entered into
with any of them, and the Owner Trustee shall not be liable for the conduct or misconduct of
such agents, attorneys, custodians or nominees (including persons acting under a power of
attorney) if such persons have been selected by the Owner Trustee with reasonable care, and
(ii) may consult with counsel, accountants and other skilled persons to be selected with
reasonable care and employed by it at the expense of the Trust. The Owner Trustee shall not
be liable for anything done, suffered or omitted in good faith by it in accordance with the
opinion or advice of any such counsel, accountants or other such Persons and not contrary to
this Trust Agreement or any other Basic Document.
Section 6.05. Not Acting in Individual Capacity. Except as provided in this Article VI, in
accepting the trusts hereby created Wilmington Trust Company acts solely as Owner Trustee
hereunder and not in its individual capacity, and all Persons having any claim against the
Owner Trustee by reason of the transactions contemplated by this Trust Agreement or any
other Basic Document shall look only to the Trust Estate for payment or satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates or Related Documents. The recitals
contained herein and in the Certificates (other than the signatures of the Owner Trustee on
the Certificates) shall be taken as the statements of the Depositor, and the Owner Trustee
assumes no responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Trust Agreement, of any other
Basic Document or of the Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents. The Owner Trustee shall at no time
have any responsibility or liability with respect to the sufficiency of the Trust Estate or
its ability to generate the payments to be distributed to Certificateholders under this
Trust Agreement or the Noteholders under the Indenture, including, the compliance by the
Depositor or the Sellers with any warranty or representation made under any Basic Document
or in any related document or the accuracy of any such warranty or representation, or any
action of the Certificate Paying Agent, the Certificate Registrar or the Indenture Trustee
taken in the name of the Owner Trustee.
Section 6.07. Owner Trustee May Own Certificates and Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates or Notes
and may deal with the Depositor, the Sellers, the Certificate Paying Agent, the Certificate
Registrar and the Indenture Trustee in transactions with the same rights as it would have if
it were not Owner Trustee.
ARTICLE VII
Compensation of Owner Trustee
Section 7.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall receive as
compensation for its services hereunder such fees as have been separately agreed upon before
the date hereof in accordance with Section 6.06 of the Servicing Agreement, and the Owner
Trustee shall be reimbursed for its reasonable expenses hereunder and under the other Basic
Documents, including the reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may reasonably employ in
connection with the exercise and performance of its rights and its duties hereunder and
under the other Basic Documents which shall be payable by the Servicer pursuant to Section
3.09 of the Servicing Agreement.
Section 7.02. Indemnification. The Certificateholder of the majority of the Percentage
Interest of the Certificates shall indemnify, defend and hold harmless the Owner Trustee and
its successors, assigns, agents and servants (collectively, the "Indemnified Parties") from
and against, any and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted against the Owner
Trustee or any Indemnified Party in any way relating to or arising out of this Trust
Agreement, the other Basic Documents, the Trust Estate, the administration of the Trust
Estate or the action or inaction of the Owner Trustee hereunder; provided, that:
(a) the Certificateholder of the majority of the Percentage Interest of the Class SB
Certificates shall not be liable for or required to indemnify an Indemnified Party from and
against Expenses arising or resulting from the Owner Trustee's willful misconduct,
negligence or bad faith or as a result of any inaccuracy of a representation or warranty
contained in Section 6.03 expressly made by the Owner Trustee;
(b) with respect to any such claim, the Indemnified Party shall have given the
Certificateholder of the majority of the Percentage Interest of the Class SB Certificates
written notice thereof promptly after the Indemnified Party shall have actual knowledge
thereof;
(c) (c) while maintaining control over its own defense, the Certificateholder of
the majority of the Percentage Interest of the Class SB Certificates shall consult with the
Indemnified Party in preparing such defense; and
(d) while maintaining control over its own defense, the Certificateholder of the majority
of the Percentage Interest of the Class SB Certificates shall consult with the Indemnified
Party in preparing such defense.
The indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Trust Agreement. In the event
of any Proceeding for which indemnity may be sought pursuant to this Section 7.02, the Owner
Trustee's choice of legal counsel, if other than the legal counsel retained by the Owner
Trustee in connection with the execution and delivery of this Trust Agreement, shall be
subject to the approval of the Certificateholder of the majority of the Percentage Interest
of the Class SB Certificates, which approval shall not be unreasonably withheld. In
addition, upon written notice to the Owner Trustee and with the consent of the Owner
Trustee, which consent shall not be unreasonably withheld, the Certificateholder of the
majority of the Percentage Interest of the Class SB Certificates shall have the right to
assume the defense of any Proceeding against the Owner Trustee.
ARTICLE VIII
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement.
(a) This Trust Agreement (other than this Article VIII) and the Trust shall terminate and
be of no further force or effect upon the final distribution of all moneys or other property
or proceeds of the Trust Estate in accordance with the terms of the Indenture and this Trust
Agreement. The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (i) operate to terminate this Trust Agreement or the Trust, (ii)
entitle such Certificateholder's legal representatives or heirs to claim an accounting or to
take any Proceeding in any court for a partition or winding up of all or any part of the
Trust or the Trust Estate or (iii) otherwise affect the rights, obligations and liabilities
of the parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date on which
Certificateholders shall surrender their Certificates to the Certificate Paying Agent for
payment of the final distribution thereon and cancellation thereof, shall be given by the
Certificate Paying Agent by letter to the Certificateholders and the Enhancer mailed within
five Business Days of receipt of notice of such termination from the Owner Trustee, stating
(i) the Payment Date upon or with respect to which final payment of the Certificates shall
be made upon presentation and surrender of the Certificates at the office of the Certificate
Paying Agent therein designated, (ii) the amount of any such final payment and (iii) that
the Record Date otherwise applicable to such Payment Date is not applicable, payments being
made only upon presentation and surrender of the Certificates at the office of the
Certificate Paying Agent therein specified. The Certificate Paying Agent shall give such
notice to the Owner Trustee and the Certificate Registrar at the time such notice is given
to Certificateholders. Upon presentation and surrender of the Certificates, the Certificate
Paying Agent shall cause to be distributed to Certificateholders amounts distributable on
such Payment Date pursuant to Section 5.01.
In the event that all of the Certificateholders shall not have surrendered their
Certificates for cancellation within six months after the date specified in the above
mentioned written notice, the Certificate Paying Agent shall give a second written notice to
the remaining Certificateholders to surrender their Certificates for cancellation and
receive the final distribution with respect thereto. Subject to applicable laws with
respect to escheat of funds, if within one year following the Payment Date on which final
payment of the Certificates was to have been made pursuant to Section 3.10, all the
Certificates shall not have been surrendered for cancellation, the Certificate Paying Agent
may take appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain subject to this
Trust Agreement. Any funds remaining in the Distribution Account after exhaustion of such
remedies shall be distributed by the Certificate Paying Agent to the Certificateholder of
the majority of the Percentage Interest of the Certificates of the Class with respect to
which such amounts are due.
(d) Upon the winding up of the Trust and its termination, the Owner Trustee shall cause
the Certificate of Trust to be cancelled by filing a certificate of cancellation with the
Secretary of State in accordance with the provisions of Section 3810(c) of the Statutory
Trust Statute.
Section 8.02. Additional Termination Requirements.
(a) Each REMIC shall be terminated in accordance with the following additional
requirements including upon the exercise by the Servicer of an optional redemption of the
Notes pursuant to Section 8.08 of the Servicing Agreement, unless the Owner Trustee, the
REMIC Administrator and the Servicer have received an Opinion of Counsel (which Opinion of
Counsel shall not be an expense of the Owner Trustee) to the effect that the failure of the
REMIC to comply with the requirements of this Section 8.02 will not (i) result in the
imposition on the Trust Estate of taxes on "prohibited transactions," as described in
Section 860F of the Code, or (ii) cause any of the REMICs to fail to qualify as a REMIC at
any time that any Certificate is outstanding:
(i) The Servicer shall establish a 90-day liquidation period for such REMIC and specify
the first day of such period in a statement, which the Indenture Trustee shall attach
to the Trust Estate's final Tax Return pursuant to Treasury regulations Section
1.860F-1. The Servicer also shall satisfy all of the requirements of a qualified
liquidation for a REMIC under Section 860F of the Code and regulations thereunder;
(ii) The Servicer shall notify the Owner Trustee and the Indenture Trustee at the
commencement of such 90-day liquidation period and, at or prior to the time of making
of the final payment on the Certificates, the Owner Trustee shall sell or otherwise
dispose of all of the remaining assets of the Trust Estate in accordance with the
terms hereof; and
(iii) If the Servicer is exercising its right to purchase the assets of the Trust Estate,
the Servicer shall, during the 90-day liquidation period and at or prior to the Final
Payment Date, purchase all of the assets of the Trust Estate for cash.
(b) Each Holder of a Security and the Owner Trustee hereby irrevocably approves and
appoints the Servicer as its attorney-in-fact to adopt a plan of complete liquidation for
the REMIC at the expense of the Trust Estate in accordance with the terms and conditions of
this Agreement.
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner Trustee shall at all
times be a corporation satisfying the provisions of Section 3807(a) of the Statutory Trust
Statute; authorized to exercise corporate trust powers; having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by federal or
state authorities; and having (or having a parent that has) long-term debt obligations with
a rating of at least A by Moody's or Standard & Poor's. If such corporation shall publish
reports of condition at least annually pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In case at
any time the Owner Trustee shall cease to be eligible in accordance with the provisions of
this Section 9.01, the Owner Trustee shall resign immediately in the manner and with the
effect specified in Section 9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at any time resign and be
discharged from the trusts hereby created by giving 30 days' prior written notice thereof to
the Enhancer, the Indenture Trustee and the Depositor. Upon receiving such notice of
resignation, the Indenture Trustee shall promptly appoint a successor Owner Trustee with the
consent of the Enhancer, which consent shall not be unreasonably withheld, by written
instrument, in duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner Trustee
shall have been so appointed and have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Owner Trustee may petition any court of
competent jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 9.01 and shall fail to resign after written request therefor by the
Indenture Trustee, or if at any time the Owner Trustee shall be legally unable to act, or
shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of its
property shall be appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Indenture Trustee may, and, at the direction of the Enhancer, shall,
remove the Owner Trustee. If the Indenture Trustee shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Indenture Trustee shall promptly
appoint a successor Owner Trustee acceptable to the Enhancer by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing Owner Trustee so
removed and one copy to the successor Owner Trustee, and shall pay all fees owed to the
outgoing Owner Trustee. If the Indenture Trustee is unable to appoint a successor Owner
Trustee within 60 days after any such direction, the Indenture Trustee may petition any
court of competent jurisdiction for the appointment of a successor Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a successor Owner
Trustee pursuant to any of the provisions of this Section shall not become effective until
acceptance of appointment by the successor Owner Trustee pursuant to Section 9.03 and
payment of all fees and expenses owed to the outgoing Owner Trustee.
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee appointed pursuant to
Section 9.02 shall execute, acknowledge and deliver to the Indenture Trustee and to its
predecessor Owner Trustee an instrument accepting such appointment under this Trust
Agreement, and thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective, and such successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and obligations of
its predecessor under this Trust Agreement, with like effect as if originally named as Owner
Trustee. The predecessor Owner Trustee shall upon payment of its fees and expenses deliver
to the successor Owner Trustee all documents and statements and monies held by it under this
Trust Agreement; and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
No successor Owner Trustee shall accept appointment as provided in this Section 9.03
unless at the time of such acceptance such successor Owner Trustee shall be eligible
pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to this Section
9.03, the Indenture Trustee shall mail notice thereof to all Certificateholders, the
Indenture Trustee, the Noteholders and the Rating Agencies and the Enhancer. If the
Indenture Trustee shall fail to mail such notice within 10 days after acceptance of such
appointment by the successor Owner Trustee, the successor Owner Trustee shall cause such
notice to be mailed at the expense of the Indenture Trustee.
Section 9.04. Merger or Consolidation of Owner Trustee. Any Person into which the Owner
Trustee may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Owner Trustee shall be a
party, or any Person succeeding to all or substantially all of the corporate trust business
of the Owner Trustee, shall be the successor of the Owner Trustee hereunder, without the
execution or filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, that such Person shall be
eligible pursuant to Section 9.01 and, provided, further, that the Owner Trustee shall mail
notice of such merger or consolidation to the Rating Agencies.
Section 9.05. Appointment of Co-Trustee or Separate Trustee. Notwithstanding any other
provisions of this Trust Agreement, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Trust Estate may at the time be
located, the Owner Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons to act as co-trustee, jointly with the Owner
Trustee, or as separate trustee or trustees, of all or any part of the Trust Estate, and to
vest in such Person, in such capacity, such title to the Trust or any part thereof and,
subject to the other provisions of this Section, such powers, duties, obligations, rights
and trusts as the Owner Trustee may consider necessary or desirable. No co-trustee or
separate trustee under this Trust Agreement shall be required to meet the terms of
eligibility as a successor Owner Trustee pursuant to Section 9.01 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee and such
separate trustee or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner Trustee;
(b) No trustee under this Trust Agreement shall be personally liable by reason of any act
or omission of any other trustee under this Trust Agreement; and
(c) The Owner Trustee may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be deemed to
have been given to each of the then separate trustees and co-trustees, as effectively as if
given to each of them. Every instrument appointing any separate trustee or co-trustee shall
refer to this Trust Agreement and the conditions of this Article IX. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the provisions of
this Trust Agreement, specifically including every provision of this Trust Agreement
relating to the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner Trustee as its
agent or attorney-in-fact with full power and authority, to the extent not prohibited by
law, to do any lawful act under or in respect of this Trust Agreement on its behalf and in
its name. If any separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE X
Compliance With Regulation AB
Section 10.01. Intent of the Parties; Reasonableness.
The Depositor and the Owner Trustee acknowledge and agree that the purpose of this
Article X is to facilitate compliance by the Depositor with the provisions of Regulation AB
and related rules and regulations of the Commission. The Depositor shall not exercise its
right to request delivery of information or other performance under these provisions other
than in good faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission under the Securities Act and
the Exchange Act. The Owner Trustee acknowledges that interpretations of the requirements
of Regulation AB may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the mortgage-backed securities
markets, advice of counsel, or otherwise, and agrees to comply with reasonable requests made
by the Depositor in good faith for delivery of information under these provisions on the
basis of evolving interpretations of Regulation AB. The Owner Trustee shall cooperate in
good faith with any reasonable request by the Depositor for information regarding the Owner
Trustee that is necessary or required, in the reasonable, good faith determination of the
Depositor, to permit the Depositor to comply with the provisions of Regulation AB.
Section 10.02. Additional Representations and Warranties of the Owner Trustee.
(a) The Owner Trustee shall be deemed to represent and warrant to the Depositor as
of the date hereof and on each date on which information is provided to the Depositor under
Sections 10.01, 10.02(b) or 10.03 that, except as disclosed in writing to the Depositor
prior to such date: (i) it is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any other
Securitization Transaction due to any default of the Owner Trustee; (ii) there are no
aspects of its financial condition that could have a material adverse effect on the
performance by it of its trustee obligations under the Trust Agreement or any other
Securitization Transaction as to which it is the trustee; (iii) there are no material legal
or governmental proceedings pending (or known to be contemplated) against it that would be
material to Noteholders; (iv) there are no relationships or transactions (as described in
Item 1119(b) of Regulation AB) relating to the Owner Trustee with respect to the Depositor
or any sponsor, issuing entity, servicer, trustee, originator, significant obligor,
enhancement or support provider or other material transaction party (as each of such terms
are used in Regulation AB) relating to the Securitization Transaction contemplated by the
Trust Agreement, as identified by the Depositor to the Owner Trustee in writing as of the
Closing Date (each, a "Transaction Party") that are outside the ordinary course of business
or on terms other than would be obtained in an arm's length transaction with an unrelated
third party, apart from the Securitization Transaction, and that are material to the
investors' understanding of the Certificates; and (v) the Owner Trustee is not an affiliate
(as contemplated by Item 1119(a) of Regulation AB) of any Transaction Party. The Depositor
shall notify the Owner Trustee of any change in the identity of a Transaction Party after
the Closing Date at least five (5) Business Days prior to January 31 of each calendar year.
(b) If so requested by the Depositor on any date following the Closing Date, the
Owner Trustee shall, within five Business Days following such request, confirm in writing
the accuracy of the representations and warranties set forth in paragraph (a) of this
Section or, if any such representation and warranty is not accurate as of the date of such
confirmation, provide the pertinent facts, in writing, to the Depositor. Any such request
from the Depositor shall not be given more than once each calendar quarter, unless the
Depositor shall have a reasonable basis for questioning the accuracy of any of the
representations and warranties.
Section 10.03. Information to Be Provided by the Owner Trustee.
(a) For so long as the Notes are outstanding, for the purpose of satisfying the
Depositor's reporting obligation under the Exchange Act with respect to any class of Notes,
the Owner Trustee shall provide to the Depositor a written description of (i) the
commencement of, a material development in or, if applicable, the termination of, any and
all legal proceedings against the Owner Trustee or any and all proceedings of which any
property of the Owner Trustee is the subject, that would be material to Noteholders; and
(ii) any such proceedings known to be contemplated by governmental authorities that would be
material to Noteholders. the Owner Trustee shall also notify the Depositor, in writing, as
promptly as practicable following notice to or discovery by a Responsible Officer of the
Owner Trustee of any material changes to proceedings described in the preceding sentence.
In addition, the Owner Trustee will furnish to the Depositor, in writing, the necessary
disclosure regarding the Owner Trustee describing such proceedings required to be disclosed
under Item 1117 of Regulation AB, for inclusion in reports filed by or on behalf of the
Depositor pursuant to the Exchange Act. The Depositor will allow the Owner Trustee to
review any disclosure relating to material litigation against the Owner Trustee prior to
filing such disclosure with the Commission to the extent the Depositor changes the
information provided by the Owner Trustee. Any descriptions required with respect to legal
proceedings, as well as updates to previously provided descriptions, under this
Section 10.03(a) shall be given no later than five Business Days prior to the Determination
Date following the month in which the relevant event occurs.
(b) For so long as the Notes are outstanding, for the purpose of satisfying the
Depositor's reporting obligation under the Exchange Act with respect to any class of Notes,
the Owner Trustee shall, no later than January 31 of each calendar year, (i) provide to the
Depositor such information regarding the Owner Trustee as is required for the purpose of
compliance with Item 1119 of Regulation AB; provided, however, the Owner Trustee shall not
be required to provide such information in the event that there has been no change to the
information previously provided by the Owner Trustee to the Depositor; and (ii) as promptly
as practicable following notice to or discovery by a Responsible Officer of the Owner
Trustee of any changes to such information, provide to the Depositor, in writing, such
updated information. Such information shall include, at a minimum, a description of any
affiliation between the Owner Trustee and any of the following parties to the Securitization
Transaction contemplated by the Trust Agreement, as such parties and their affiliates are
identified to the Owner Trustee by the Depositor in connection with the closing of each
Securitization Transaction or, if there has been a change in any such party, as such party
is identified by the Depositor in a written notice to the Owner Trustee at least five (5)
Business Days prior to January 31 of each calendar year:
(1) the sponsor;
(2) any depositor;
(3) the issuing entity;
(4) any servicer;
(5) any other trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material party related to any Securitization Transaction.
In addition, the Owner Trustee shall provide a description of whether there is, and
if so the general character of, any business relationship, agreement, arrangement,
transaction or understanding between the Owner Trustee and any above-listed party that is
entered into outside the ordinary course of business or is on terms other than would be
obtained in an arm's length transaction with an unrelated third party, apart from the
Securitization Transaction contemplated by the Trust Agreement, that currently exists or
that existed during the past two years and that is material to an investor's understanding
of the Notes.
(c) As of the related Payment Date with respect to each Report on Form 10-D with respect
to the Notes filed by or on behalf of the Depositor, and as of March 15 preceding the date
each Report on Form 10-K with respect to the Notes is filed, the Owner Trustee shall be
deemed to represent and warrant that any information previously provided by the Owner
Trustee under this Article X is materially correct and does not have any material omissions
unless the Owner Trustee has provided an update to such information.
Section 10.04. Indemnification; Remedies.
(a) The Owner Trustee shall indemnify the Depositor, each affiliate of the Depositor,
GMACM and each affiliate of GMACM, and the respective present and former directors,
officers, employees and agents of each of the foregoing, and shall hold each of them
harmless from and against any claims, losses, liabilities (including penalties), actions,
suits, judgments, demands, damages, costs and expenses (including reasonable fees and
expenses of attorneys or, as necessary, consultants and auditors and reasonable costs of
investigations) that any of them may sustain arising out of or based upon:
(i)(A) any untrue statement of a material fact contained or alleged to
be contained in any information, report, certification or other material provided under
Sections 10.01, 10.02 or 10.03 of this Article X by or on behalf of the Owner Trustee
(collectively, the "Owner Trustee Information"), or (B) the omission or alleged omission to
state in Owner Trustee Information a material fact required to be stated in Owner Trustee
Information or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or
(ii) any failure by the Owner Trustee to deliver any information,
report, certification or other material when and as required under Sections 10.02 and 10.03.
(b) In the case of any failure of performance described in clause (ii) of
Section 10.04(a), the Owner Trustee shall (i) promptly reimburse the Depositor for all costs
reasonably incurred by the Depositor in order to obtain the information, report,
certification or other material not delivered by the Owner Trustee as required and (ii)
cooperate with the Depositor to mitigate any damages that may result from such failure.
(c) The Depositor and GMACM shall indemnify the Owner Trustee, each affiliate of the
Owner Trustee and the respective present and former directors, officers, employees and
agents of the Owner Trustee, and shall hold each of them harmless from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain arising out
of or based upon (i) any untrue statement of a material fact contained or alleged to be
contained in any information provided by or on behalf of the Depositor or GMACM for
inclusion in any report filed with Commission under the Exchange Act (collectively, the
"GMACM Information"), or (ii) the omission or alleged omission to state in the GMACM
Information a material fact required to be stated in the GMACM Information or necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) Notwithstanding any provision in this Section 10.04 to the contrary, the parties
agree that none of the Owner Trustee, the Depositor or GMACM shall be liable to the other
for any consequential or punitive damages whatsoever, whether in contract, tort (including
negligence and strict liability), or any other legal or equitable principle; provided,
however, that such limitation shall not be applicable with respect to third party claims
made against a party.
ARTICLE XI
Miscellaneous
Section 11.01. Amendments.
(a) (a) This Trust Agreement may be amended from time to time by the parties
hereto with the consent of the Enhancer as specified in this Section 11.01, provided that
any such amendment, except as provided in paragraph (e) below, shall be accompanied by an
Opinion of Counsel addressed to the Owner Trustee and the Enhancer to the effect that such
amendment (i) complies with the provisions of this Section and (ii) will not cause the Trust
to be subject to any tax or cause any of the REMICs to fail to qualify as a REMIC for
federal income tax purposes.
(b) If the purpose of any such amendment (as detailed therein) is to correct any mistake,
eliminate any inconsistency, cure any ambiguity or deal with any matter not covered in this
Trust Agreement (i.e., to give effect to the intent of the parties), it shall not be
necessary to obtain the consent of any Certificateholders, but the Owner Trustee shall be
furnished with (i) a letter from each Rating Agency that the amendment will not result in a
Rating Event, determined without regard to the Policy and (ii) an Opinion of Counsel to the
effect that such action will not adversely affect in any material respect the interests of
any Certificateholder or the Enhancer, and the consent of the Enhancer shall be obtained.
(c) If the purpose of the amendment is to prevent the imposition of any federal or state
taxes at any time that any Security is outstanding (i.e., technical in nature), it shall not
be necessary to obtain the consent of any Certificateholder, but the Owner Trustee shall be
furnished with an Opinion of Counsel that such amendment is necessary or helpful to prevent
the imposition of such taxes and is not materially adverse to any Certificateholder and the
consent of the Enhancer shall be obtained.
(d) If the purpose of the amendment is to add or eliminate or change any provision of the
Trust Agreement other than as contemplated in (b) and (c) above, the amendment shall require
(i) the consent of the Enhancer and an Opinion of Counsel to the effect that such action
will not adversely affect in any material respect the interests of any Certificateholder and
(ii) either (A) a letter from each Rating Agency that such amendment will not cause a Rating
Event, if determined without regard to the Policy or (B) the consent of Certificateholders
of each Class of Certificates evidencing a majority of the aggregate Certificate Percentage
Interest and the Indenture Trustee; provided, however, that no such amendment shall reduce
in any manner the amount of, or delay the timing of, payments received that are required to
be distributed on any Certificate without the consent of each Certificateholder affected
thereby and the Enhancer, or reduce the aforesaid percentage of Certificates the
Certificateholders of which are required to consent to any such amendment, without the
consent of the Certificateholders of all such Certificates then outstanding.
(e) No amendment of this Trust Agreement may provide for the holding of any of the
Certificates in book-entry form.
(f) If the purpose of any such amendment is to provide for the issuance of additional
Certificates representing an interest in the Trust, it shall not be necessary to obtain the
consent of any Certificateholder, but the Owner Trustee shall be furnished with (i) an
Opinion of Counsel to the effect that such action will not adversely affect in any material
respect the interests of any Certificateholders and (B) a letter from each Rating Agency to
the effect that such amendment will not cause a Rating Event, if determined without regard
to the Policy, and the consent of the Enhancer shall be obtained.
(g) Promptly after the execution of any such amendment or consent, the Owner Trustee
shall furnish written notification of the substance of such amendment or consent to each
Certificateholder, the Indenture Trustee, the Enhancer and each of the Rating Agencies. It
shall not be necessary for the consent of Certificateholders or the Indenture Trustee
pursuant to this Section 11.01 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance thereof.
The manner of obtaining such consents (and any other consents of Certificateholders provided
for in this Trust Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to such
reasonable requirements as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any agreement to which the Trust
is a party, other than this Trust Agreement, the Owner Trustee shall be entitled to receive
and conclusively rely upon an Opinion of Counsel to the effect that such amendment is
authorized or permitted by the documents subject to such amendment and that all conditions
precedent in the Basic Documents for the execution and delivery thereof by the Trust or the
Owner Trustee, as the case may be, have been satisfied.
Promptly after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of State.
Section 11.02. No Legal Title to Trust Estate. The Certificateholders shall not have legal
title to any part of the Trust Estate. The Certificateholders shall be entitled to receive
distributions with respect to their undivided beneficial interest therein only in accordance
with Articles V and VIII. No transfer, by operation of law or otherwise, of any right,
title or interest of the Certificateholders to and in their ownership interest in the Trust
Estate shall operate to terminate this Trust Agreement or the trusts hereunder or entitle
any transferee to an accounting or to the transfer to it of legal title to any part of the
Trust Estate.
Section 11.03. Limitations on Rights of Others. Except for Section 2.07, the provisions of
this Trust Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Certificateholders, the Enhancer and, to the extent expressly provided herein, the Indenture
Trustee and the Noteholders, and nothing in this Trust Agreement (other than Section 2.07),
whether express or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Trust Estate or under or in respect of this Trust
Agreement or any covenants, conditions or provisions contained herein.
Section 11.04. Notices.
(a) Unless otherwise expressly specified or permitted by the terms hereof, all notices
shall be in writing and shall be deemed given upon receipt: if to the Owner Trustee,
addressed to its Corporate Trust Office; if to the Certificate Paying Agent, addressed to
JPMorgan Chase Bank, National Association, ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, if to the Depositor, addressed to Residential
Asset Mortgage Products, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President, Re: GMACM Home Equity Loan Trust Series 2006-HE2; if
to the Enhancer, addressed to Financial Guaranty Insurance Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇: Attention: Structured Finance Surveillance (GMACM Home Equity Loan
Trust 2006-HE2), if to the Rating Agencies, addressed to ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and Standard & Poor's, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Structured Finance Department - MBS; or, as to each of the foregoing Persons, at such other
address as shall be designated by such Person in a written notice to each of the other
foregoing Persons.
(b) Any notice required or permitted to be given to a Certificateholder shall be given by
first-class mail, postage prepaid, at the address of such Certificateholder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this Trust
Agreement to a Certificateholder shall be conclusively presumed to have been duly given,
whether or not such Certificateholder receives such notice.
(c) A copy of any notice delivered to the Owner Trustee or the Trust shall also be
delivered to the Depositor.
(d) Where this Trust Agreement provides for a notice, certificate, opinion, report or
similar delivery to be given to any transaction party or to a Rating Agency, a copy of such
document shall be contemporaneously sent to the Enhancer.
Section 11.05. Severability. Any provision of this Trust Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 11.06. Separate Counterparts. This Trust Agreement may be executed by the parties
hereto in any number of counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute but one and the same
instrument.
Section 11.07. Successors and Assigns. All representations, warranties, covenants and
agreements contained herein shall be binding upon, and inure to the benefit of, each of the
Enhancer, the Depositor, the Owner Trustee and its successors and each Certificateholder and
its successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by a Certificateholder shall bind
the successors and assigns of such Certificateholder.
Section 11.08. No Petition. The Owner Trustee, by entering into this Trust Agreement, and
each Certificateholder, by accepting a Certificate, hereby covenant and agree that they will
not at any time institute against the Depositor or the Trust, or join in any institution
against the Depositor or the Trust of, any bankruptcy Proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations to the
Certificates, the Notes, this Trust Agreement or any of the other Basic Documents.
Section 11.09. No Recourse. Each Certificateholder, by accepting a Certificate, acknowledges
that such Certificateholder's Certificate represents a beneficial interest in the Trust only
and does not represent an interest in or obligation of the Depositor, the Sellers, the Owner
Trustee, the Indenture Trustee or any Affiliate thereof, and that no recourse may be had
against such Persons or their assets, except as may be expressly set forth or contemplated
in the Certificates, this Trust Agreement or the other Basic Documents.
Section 11.10. Headings. The headings of the various Articles and Sections herein are for
convenience of reference only and shall not define or limit any of the terms or provisions
hereof.
Section 11.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section 11.12. Integration. This Trust Agreement constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes all prior agreements
and understanding pertaining thereto.
Section 11.13. Rights of Enhancer to Exercise Rights of Certificateholders. By accepting its
Certificate, each Certificateholder agrees that unless an Enhancer Default exists or as
otherwise provided in this Agreement, the Enhancer shall have the right to exercise all
rights of the Certificateholders under this Trust Agreement without any further consent of
the Certificateholders. Nothing in this Section, however, shall alter or modify in any way,
the fiduciary obligations of the Owner Trustee to the Certificateholders pursuant to this
Trust Agreement, or create any fiduciary obligation of the Owner Trustee to the Enhancer.
The Enhancer shall be an express third party beneficiary of this Trust Agreement.
IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused their names to be
signed hereto by their respective officers thereunto duly authorized, all as of the day and
year first above written.
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Depositor
By: ____________________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee, except with respect to the
representations and warranties contained in
Section 6.03 hereof
By: ___________________________________
Name:
Title:
Acknowledged and Agreed:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Indenture Trustee, Certificate
Registrar
and Certificate Paying Agent
By: __________________________________
Name:
Title:
Acknowledged and Agreed for purposes of Article X:
GMAC MORTGAGE CORPORATION,
By: __________________________________________
Name:
Title:
EXHIBIT A
FORM OF CLASS SB CERTIFICATE
THIS CLASS SB CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES AS DESCRIBED IN
THE AGREEMENT (AS DEFINED HEREIN).
THIS CLASS SB CERTIFICATE IS ISSUED IN THE PERCENTAGE INTEREST SET FORTH BELOW. THE
CERTIFICATEHOLDER OF THIS CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS PERCENTAGE
INTEREST IN ACCORDANCE WITH SUCH SECTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS NOTE IS A "REGULAR INTEREST" IN A "REAL
ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
THIS CLASS SB CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND STATE LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND SUCH STATE
LAWS AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.05 OF THE AGREEMENT.
NO TRANSFER OF THIS CLASS SB CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR
SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER, IN THE FORM OF EXHIBIT G TO THE
AGREEMENT, FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT
AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION RESTRICTIONS AND THE
FIDUCIARY RESPONSIBILITY REQUIREMENTS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), ANY PERSON ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF ANY SUCH PLAN OR ANY
PERSON USING "PLAN ASSETS," WITHIN THE MEANING OF THE DEPARTMENT OF LABOR REGULATIONS
SECTION 2510.3-101, TO ACQUIRE THIS CLASS SB CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (ii)
IF THIS CLASS SB CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR,
AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE DEPOSITOR,
THE OWNER TRUSTEE, THE SERVICER AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF THIS CLASS SB CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL
NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) AND WILL NOT
SUBJECT THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER OR THE CERTIFICATE REGISTRAR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THE TRANSFEREE OF THIS CLASS SB CERTIFICATE SHALL BE SUBJECT TO UNITED STATES FEDERAL
WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF
NON-FOREIGN STATUS CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION
OR PARTNERSHIP UNDER U.S. LAW.
THIS CLASS SB CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLERS,
THE DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT OR THE OTHER BASIC
DOCUMENTS.
Class: SB
Certificate No.
Percentage Interest: 100%
Cut-Off Date: June 1, 2006
Date of Trust Agreement: June 29, 2006
First Payment Date: July 25, 2006
Final Payment Date: May 25, 2036
GMACM HOME EQUITY LOAN-BACKED CERTIFICATE, SERIES 2006-HE2
evidencing a fractional undivided interest in GMACM Home Equity
Loan Trust 2006-HE2 (the "Issuer"), the property of which
consists primarily of the Mortgage Loans.
This Class SB Certificate is payable solely from the assets of the Trust Estate, and
does not represent an obligation of or interest in the Depositor, the Sellers, the Servicer,
the Indenture Trustee or the Owner Trustee or any of their Affiliates. This Class SB
Certificate is not guaranteed or insured by any governmental agency or instrumentality or by
the Depositor, the Sellers, the Servicer, the Indenture Trustee or the Owner Trustee or any
of their affiliates. None of the Depositor, the Sellers, the Servicer, the Indenture
Trustee or the Owner Trustee or any of their Affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that GMAC Mortgage Corporation is the registered owner of the
Certificate Percentage Interest evidenced by this Class SB Certificate (as set forth on the
face hereof) in certain distributions with respect to the Trust Estate, consisting primarily
of the Mortgage Loans, created by Residential Asset Mortgage Products, Inc. (the
"Depositor"). The Trust (as defined herein) was created pursuant to a trust agreement dated
as of June 29, 2006 (as amended and supplemented from time to time, the "Agreement"),
between the Depositor and Wilmington Trust Company, as owner trustee (the "Owner Trustee,"
which term includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. Capitalized terms used herein that
are not otherwise defined shall have the meanings ascribed thereto in Appendix A to the
indenture dated as of June 29, 2006, between the Trust and the Indenture Trustee. This
Class SB Certificate is issued under and is subject to the terms, provisions and conditions
of the Agreement, to which Agreement the Certificateholder of this Class SB Certificate by
virtue of the acceptance hereof assents and by which such Certificateholder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the 25th day
of each March, June, September and December or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Payment Date"), commencing on the first Payment
Date specified above, to the Person in whose name this Class SB Certificate is registered at
the close of business on the last day (or if such last day is not a Business Day, the
Business Day immediately preceding such last day) of the month immediately preceding the
month of such distribution (the "Record Date"), in an amount equal to the pro rata portion
evidenced by this Class SB Certificate (based on the Percentage Interest stated on the face
hereon) of the amount, if any, required to be distributed to Certificateholders of Class SB
Certificates on such Payment Date. Distributions on this Class SB Certificate will be made
as provided in the Agreement by the Certificate Paying Agent by wire transfer or check
mailed to the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Class SB Certificate or the making of any notation
hereon. Pursuant to the Agreement, the Trust has issued three Classes of Certificates,
designated as the Class SB Certificates, the Class R-I Certificates and the Class R-II
Certificates.
Except as otherwise provided in the Agreement and notwithstanding the above, the
final distribution on this Class SB Certificate will be made after due notice by the
Certificate Paying Agent of the pendency of such distribution and only upon presentation and
surrender of this Class SB Certificate at the Corporate Trust Office of the Certificate
Registrar.
No transfer of this Class SB Certificate will be made unless such transfer is exempt
from the registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable state securities laws or is made in accordance the
Securities Act and such state laws. In the event that such a transfer is to be made, (i)
the Certificate Registrar or the Depositor may require an Opinion of Counsel acceptable to
and in form and substance satisfactory to the Certificate Registrar and the Depositor that
such transfer is exempt (describing the applicable exemption and the basis therefor) from or
is being made pursuant to the registration requirements of the Securities Act, and of any
applicable statute of any state and (ii) the transferee shall execute an investment letter
in the form described in the Agreement and (iii) the Certificate Registrar shall require the
transferee to execute an investment letter and a Certificate of Non-Foreign Status in the
form described by the Agreement (or if a Certificate of Non-Foreign Status is not provided,
an Opinion of Counsel as described in the Agreement), which investment letter and
certificate or Opinion of Counsel shall not be at the expense of the Trust, the Owner
Trustee, the Certificate Registrar or the Depositor. The Certificateholder hereof desiring
to effect such transfer shall, and does hereby agree to, indemnify the Trust, the Owner
Trustee, the Depositor, the Servicer and the Certificate Registrar against any liability
that may result if the transfer is not so exempt or is not made in accordance with such
federal and state laws. In connection with any such transfer, the Certificate Registrar
(unless otherwise directed by the Depositor) will also require either (i) a representation
letter, in the form of Exhibit G to the Agreement, stating that the transferee is not an
employee benefit or other plan subject to the prohibited transaction restrictions or the
fiduciary responsibility requirements of ERISA or Section 4975 of the Code (a "Plan"), any
person acting, directly or indirectly, on behalf of any such Plan or any Person using the
"plan assets," within the meaning of the Department of Labor Regulations Section 2510.3-101,
to effect such acquisition (collectively, a "Plan Investor") or (ii) if such transferee is a
Plan Investor, an Opinion of Counsel acceptable to and in form and substance satisfactory to
the Depositor, the Owner Trustee, the Servicer and the Certificate Registrar, to the effect
that the purchase or holding of such Class SB Certificate is permissible under applicable
law, will not constitute or result in a prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent enactments) and will
not subject the Depositor, the Owner Trustee, the Servicer or the Certificate Registrar to
any obligation or liability (including obligations or liabilities under Section 406 of ERISA
or Section 4975 of the Code) in addition to those undertaken in the Agreement.
This Class SB Certificate is one of a duly authorized issue of Certificates
designated as GMACM Home Equity Loan-Backed Certificates of the Series specified hereon (the
"Certificates").
The Certificateholder of this Class SB Certificate, by its acceptance hereof, agrees
that it will look solely to the funds on deposit in the Distribution Account that have been
released from the Lien of the Indenture for payment hereunder and that neither the Owner
Trustee in its individual capacity nor the Depositor is personally liable to the
Certificateholders for any amount payable under this Class SB Certificate or the Agreement
or, except as expressly provided in the Agreement, subject to any liability under the
Agreement.
The Certificateholder of this Class SB Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Class SB Certificate are subordinated to
the rights of the Noteholders as described in the Indenture.
Each Certificateholder, by its acceptance of a Certificate, covenants and agrees that
such Certificateholder will not at any time institute against the Depositor, or join in any
institution against the Depositor or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any obligations
relating to the Certificates, the Notes, the Agreement or any of the other Basic Documents.
The Agreement permits the amendment thereof as specified below, provided that any
amendment be accompanied by the consent of the Enhancer and an Opinion of Counsel to the
Owner Trustee to the effect that such amendment complies with the provisions of the
Agreement and will not cause the Trust to be subject to an entity level tax. If the purpose
of any such amendment is to correct any mistake, eliminate any inconsistency, cure any
ambiguity or deal with any matter not covered, it shall not be necessary to obtain the
consent of any Certificateholder, but the Owner Trustee shall be furnished with a letter
from each Rating Agency to the effect that such amendment will not cause a Rating Event
determined without regard to the Policy, and the consent of the Enhancer shall be obtained.
If the purpose of any such amendment is to prevent the imposition of any federal or state
taxes at any time that any Security is Outstanding, it shall not be necessary to obtain the
consent of the any Certificateholder, but the Owner Trustee shall be furnished with an
Opinion of Counsel that such amendment is necessary or helpful to prevent the imposition of
such taxes and is not materially adverse to any Certificateholder and the consent of the
Enhancer shall be obtained. If the purpose of the amendment is to add or eliminate or
change any provision of the Agreement, other than as specified in the preceding two
sentences, the amendment shall require either (a) a letter from each Rating Agency to the
effect that such amendment will not cause a Rating Event (determined without regard to the
Policy or (b) the consent of Certificateholders of a majority of the Percentage Interests of
the Certificates and the Indenture Trustee; provided, however, that no such amendment shall
(i) reduce in any manner the amount of, or delay the time of, payments received that are
required to be distributed on any Certificate without the consent of all Certificateholders
affected thereby and the Enhancer, or (ii) reduce the aforesaid percentage of Certificates
the Certificateholders of which are required to consent to any such amendment without the
consent of the Certificateholders of all such Certificates then outstanding.
As provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Class SB Certificate is registerable in the Certificate Register upon
surrender of this Class SB Certificate for registration of transfer at the Corporate Trust
Office of the Certificate Registrar, accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Certificateholder hereof or
such Certificateholder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee. The initial Certificate Registrar
appointed under the Agreement is the Owner Trustee.
Except as provided in the Agreement, the Class SB Certificates are issuable only in
minimum denominations of a 10.0000% Percentage Interest and in integral multiples of a
0.0001% Percentage Interest in excess thereof. As provided in the Agreement and subject to
certain limitations therein set forth, the Class SB Certificates are exchangeable for new
Class SB Certificates of authorized denominations, as requested by the Certificateholder
surrendering the same. This Class SB Certificate is issued in the Percentage Interest above.
No service charge will be made for any such registration of transfer or exchange, but
the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar and any
agent of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar may
treat the Person in whose name this Class SB Certificate is registered as the owner hereof
for all purposes, and none of the Owner Trustee, the Certificate Paying Agent, the
Certificate Registrar or any such agent shall be affected by any notice to the contrary.
This Class SB Certificate shall be governed by and construed in accordance with the
laws of the State of Delaware.
The obligations created by the Agreement in respect of this Class SB Certificate and
the Trust created thereby shall terminate upon the final distribution of all moneys or other
property or proceeds of the Trust Estate in accordance with the terms of the Indenture and
the Agreement.
Unless the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual signature,
this Class SB Certificate shall not be entitled to any benefit under the Agreement or be
valid for any purpose.
[Signature Page Follows]
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Class SB Certificate to be duly executed.
GMACM HOME EQUITY LOAN TRUST 2006-HE2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
Dated: June 29, 2006 By: _____________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ___________________________________________
Authorized Signatory
or ____________________________________________,
as Authenticating Agent of the Trust
By:_____________________________________________
Authorized Signatory
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer unto
______________________________________________________________________________
(name and address of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably constituting and
appointing ___________________________________________________________________________________
to transfer said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:______________________
_____________________________________ */
Signature Guaranteed:
___________________________ */
*/ NOTICE: The signature to this assignment must correspond with the name as it appears
upon the face of the within Certificate in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the Certificate
Paying Agent:
Distribution shall be made by wire transfer in immediately available funds to
______________________________________________________________________________________________
for the account of ____________________________________________________________, account
number ___________________________, or, if mailed by check, to _______________________________.
Applicable statements should be mailed to ___________________________________________.
________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT B
CERTIFICATE OF TRUST
OF
GMACM HOME EQUITY LOAN TRUST 2006-HE2
THE UNDERSIGNED, Wilmington Trust Company, as owner trustee (the "Trustee"), for the
purpose of forming a statutory trust does hereby certify as follows:
1. The name of the statutory trust is:
GMACM HOME EQUITY LOAN TRUST 2006-HE2
2. The name and business address of the Trustee of the statutory trust in the
State Delaware is Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. The statutory trust reserves the right to amend, alter, change, or repeal any
provision contained in this Certificate of Trust in the manner now or hereafter prescribed
by law.
4. This Certificate of Trust shall be effective upon filing.
THE UNDERSIGNED, being the Trustee hereinbefore named, for the purpose of forming a
statutory trust pursuant to the provisions of the Delaware Statutory Trust Act, does make
this certificate of trust, hereby declaring and further certifying that this is its act and
deed and that to the best of the undersigned's knowledge and belief the facts herein stated
are true.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as owner trustee under the trust agreement
to be dated as of June 29, 2006
By:_______________________________________________
Name:
Title:
Dated: June [__], 2006
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
The undersigned seller, as registered holder (the "Seller"), intends to transfer the
Rule 144A Securities described above to the undersigned buyer (the "Buyer").
1. In connection with such transfer and in accordance with the agreements
pursuant to which the Rule 144A Securities were issued, the Seller hereby certifies the
following facts: Neither the Seller nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A Securities, any interest
in the Rule 144A Securities or any other similar security to, or solicited any offer to buy
or accept a transfer, pledge or other disposition of the Rule 144A Securities, any interest
in the Rule 144A Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken any other
action, that would constitute a distribution of the Rule 144A Securities under the
Securities Act of 1933, as amended (the "1933 Act"), or that would render the disposition of
the Rule 144A Securities a violation of Section 5 of the 1933 Act or require registration
pursuant thereto, and that the Seller has not offered the Rule 144A Securities to any person
other than the Buyer or another "qualified institutional buyer" as defined in Rule 144A
under the ▇▇▇▇ ▇▇▇.
2. The Buyer warrants and represents to, and covenants with, the Owner Trustee
and the Depositor, pursuant to Section 3.05 of the trust agreement dated as of June 29, 2006
(the "Agreement"), between Residential Asset Mortgage Products, Inc., as depositor (the
"Depositor"), and Wilmington Trust Company, as owner trustee (the "Owner Trustee"), as
follows:
a. The Buyer understands that the Rule 144A Securities have not been
registered under the 1933 Act or the securities laws of any state.
b. The Buyer considers itself a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business matters that
it is capable of evaluating the merits and risks of investment in the Rule 144A
Securities.
c. The Buyer has been furnished with all information regarding the Rule 144A
Securities that it has requested from the Seller, the Indenture Trustee, the Owner
Trustee or the Servicer.
d. Neither the Buyer nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar security
from, or otherwise approached or negotiated with respect to the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, that would constitute
a distribution of the Rule 144A Securities under the 1933 Act or that would render
the disposition of the Rule 144A Securities a violation of Section 5 of the 1933 Act
or require registration pursuant thereto, nor will it act, nor has it authorized or
will it authorize any person to act, in such manner with respect to the Rule 144A
Securities.
e. The Buyer is a "qualified institutional buyer" as that term is defined in
Rule 144A under the 1933 Act and has completed either of the forms of certification
to that effect attached hereto as Annex 1 or Annex 2. The Buyer is aware that the
sale to it is being made in reliance on Rule 144A. The Buyer is acquiring the Rule
144A Securities for its own account or the accounts of other qualified institutional
buyers, understands that such Rule 144A Securities may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified institutional
buyer that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the 1933 Act.
3. The Buyer represents that:
(i) either (a) or (b) is satisfied, as marked below:
a. The Buyer is not any employee benefit plan subject
to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or the Internal Revenue Code of 1986, as amended (the "Code"), a Person
acting, directly or indirectly, on behalf of any such plan or any Person
acquiring such Certificates with "plan assets" of a Plan within the meaning of
the Department of Labor Regulations Section 2510.3-101; or
b. The Buyer will provide the Depositor, the Owner
Trustee, the Certificate Registrar and the Servicer with either: (x) an
opinion of counsel, satisfactory to the Depositor, the Owner Trustee, the
Certificate Registrar and the Servicer, to the effect that the purchase and
holding of a Certificate by or on behalf of the Buyer is permissible under
applicable law, will not constitute or result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code (or comparable
provisions of any subsequent enactments) and will not subject the Depositor,
the Owner Trustee, the Certificate Registrar or the Servicer to any obligation
or liability (including liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in the Trust Agreement, which opinion of
counsel shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer; or (y) in lieu of such opinion of
counsel, a certification in the form of Exhibit G to the Trust Agreement; and
(ii) the Buyer is familiar with the prohibited transaction restrictions and
fiduciary responsibility requirements of Sections 406 and 407 of ERISA and Section
4975 of the Code and understands that each of the parties to which this certification
is made is relying and will continue to rely on the statements made in this paragraph
3.
This document may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall be deemed to
be an original; such counterparts, together, shall constitute one and the same document.
Capitalized terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in Appendix A to the indenture dated as of June 29, 2006, between the Trust
and the Indenture Trustee.
IN WITNESS WHEREOF, each of the parties has executed this document as of the date set
forth below.
Print Name of Seller Print Name of Buyer
By: __________________________________ By: __________________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. No.
Date: Date:
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities Act of 1933
("Rule 144A") because (i) the Buyer owned and/or invested on a discretionary basis
$ ____________________________________ (1) in securities (except for the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A) and (ii) the Buyer satisfies the criteria in the
category marked below.
Corporation, etc. The Buyer is a corporation (other than a bank, savings and
loan association or similar institution), Massachusetts or similar statutory
trust, partnership, or charitable organization described in Section 501(c)(3)
of the Internal Revenue Code.
Bank. The Buyer (a) is a national bank or banking institution organized under
the laws of any state, territory or the District of Columbia, the business of
which is substantially confined to banking and is supervised by the state or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements, a copy
of which is attached hereto.
Savings and Loan. The Buyer (a) is a savings and loan association, building
and loan association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a state or federal authority
having supervision over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial statements.
Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended.
Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or agency of a state or
territory or the District of Columbia.
_______________________
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
State or Local Plan. The Buyer is a plan established and maintained by a
state, its political subdivisions, or any agency or instrumentality of the
state or its political subdivisions, for the benefit of its employees.
ERISA Plan. The Buyer is an employee benefit plan within the meaning of Title
I of the Employee Retirement Income Security Act of 1974, as amended.
Investment Adviser. The Buyer is an investment adviser registered under the
Investment Advisers Act of 1940. as amended.
SBIC. The Buyer is a Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958, as amended.
Business Development Company. The Buyer is a business development company as
defined in Section 202(a)(22) of the Investment Advisers Act of 1940, as
amended.
Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the benefit of
its employees, or (b) employee benefit plans within the meaning of Title I of
the Employee Retirement Income Security Act of 1974, as amended, but is not a
trust fund that includes as participants individual retirement accounts or
H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an unsold
allotment to or subscription by the Buyer, if the Buyer is a dealer, (iii) bank deposit
notes and certificates of deposit, (iv) loan participations, (v) repurchase agreements, (vi)
securities owned but subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Buyer, the Buyer used the cost of such securities
to the Buyer and did not include any of the securities referred to in the preceding
paragraph. Further, in determining such aggregate amount, the Buyer may have included
securities owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such subsidiaries are
managed under the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and understands that
the seller to it and other parties related to the Rule 144A Securities are relying and will
continue to rely on the statements made herein because one or more sales to the Buyer may be
in reliance on Rule 144A.
Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees that, in
connection with any purchase of securities sold to the Buyer for the account of a third
party (including any separate account) in reliance on Rule 144A, the Buyer will only
purchase for the account of a third party that at the time is a "qualified institutional
buyer" within the meaning of Rule 144A. In addition, the Buyer agrees that the Buyer will
not purchase securities for a third party unless the Buyer has obtained a current
representation letter from such third party or taken other appropriate steps contemplated by
Rule 144A to conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice is given, the
Buyer's purchase of Rule 144A Securities will constitute a reaffirmation of this
certification as of the date of such purchase.
Print Name of Buyer
By: __________________________________
Name:
Title:
Date:_________________________________
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial Officer
or Senior Vice President of the Buyer or, if the Buyer is a "qualified institutional buyer"
as that term is defined in Rule 144A under the Securities Act of 1933 ("Rule 144A") because
Buyer is part of a Family of Investment Companies (as defined below), is such an officer of
the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified institutional
buyer" as defined in Rule 144A because (i) the Buyer is an investment company registered
under the Investment Company Act of 1940, and (ii) as marked below, the Buyer alone, or the
Buyer's Family of Investment Companies, owned at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
The Buyer owned $____________________________________________ in
securities (other than the excluded securities referred to below) as of
the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
The Buyer is part of a Family of Investment Companies which
owned in the aggregate $ _________________________________in securities
(other than the excluded securities referred to below) as of the end of
the Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or more
registered investment companies (or series thereof) that have the same investment adviser or
investment advisers that are affiliated (by virtue of being majority owned subsidiaries of
the same parent or because one investment adviser is a majority owned subsidiary of the
other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of Investment
Companies, (ii) bank deposit notes and certificates of deposit, (iii) loan participations,
(iv) repurchase agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each of the parties
to which this certification is made are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which this certification is
made of any changes in the information and conclusions herein. Until such notice, the
Buyer's purchase of Rule 144A Securities will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
Print Name of Buyer
By: _____________________________________
Name:
Title:
IF AN ADVISER:
_________________________________________
Print Name of Buyer
Date: ___________________________________
EXHIBIT D
FORM OF INVESTOR REPRESENTATION LETTER
_______________,________
Residential Asset Mortgage Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
JPMorgan Chase Bank, National Association
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Residential Asset Mortgage Products, Inc.,
GMACM Home Equity Loan-Backed Certificates, Series 2006-HE2
Ladies and Gentlemen:
___________________ (the "Purchaser") intends to purchase from
(the "Seller") % Certificate Percentage Interest of
Series 2006-HE2 (the "Certificates"), issued pursuant to the trust agreement dated as of
June 29, 2006 (the "Trust Agreement"), between Residential Asset Mortgage Products, Inc., as
depositor (the "Depositor") and Wilmington Trust Company, as owner trustee (the "Owner
Trustee"), as acknowledged and agreed by JPMorgan Chase Bank, National Association, as
Certificate Registrar. Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in Appendix A to the indenture dated as of June 29, 2006,
between the Trust and the Indenture Trustee. The Purchaser hereby certifies, represents and
warrants to, and covenants with, the Depositor and the Certificate Registrar that:
1. The Purchaser understands that (a) the Certificates have not been and
will not be registered or qualified under the Securities Act of 1933, as amended (the
"Act"), or any state securities law, (b) the Company is not required to so register
or qualify the Certificates, (c) the Certificates may be resold only if registered
and qualified pursuant to the provisions of the Act or any state securities law, or
if an exemption from such registration and qualification is available, (d) the Trust
Agreement contains restrictions regarding the transfer of the Certificates and (e)
the Certificates will bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificates for its own account for
investment only and not with a view to or for sale in connection with any
distribution thereof in any manner that would violate the Act or any applicable state
securities laws.
3. The Purchaser is (a) a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business matters, and,
in particular, in such matters related to securities similar to the Certificates,
such that it is capable of evaluating the merits and risks of investment in the
Certificates, (b) able to bear the economic risks of such an investment and (c) an
"accredited investor" within the meaning of Rule 501(a) promulgated pursuant to the
Act.
4. The Purchaser has been furnished with, and has had an opportunity to
review a copy of the Trust Agreement and such other information concerning the
Certificates, the Mortgage Loans and the Depositor as has been requested by the
Purchaser from the Depositor or the Seller and is relevant to the Purchaser's
decision to purchase the Certificates. The Purchaser has had any questions arising
from such review answered by the Depositor or the Seller to the satisfaction of the
Purchaser.
5. The Purchaser has not and will not nor has it authorized or will it
authorize any person to (a) offer, pledge, sell, dispose of or otherwise transfer any
Certificate, any interest in any Certificate or any other similar security to any
person in any manner, (b) solicit any offer to buy or to accept a pledge, disposition
of other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approach or negotiate
with respect to any Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (d) make any general solicitation by means of
general advertising or in any other manner or (e) take any other action, that (as to
any of (a) through (d) above) would constitute a distribution of any Certificate
under the Act, that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require registration
or qualification pursuant thereto. The Purchaser will not sell or otherwise transfer
any of the Certificates, except in compliance with the provisions of the Trust
Agreement.
6. The Purchaser represents:
(i) that either (a) or (b) is satisfied, as marked below:
a. The Purchaser is not any employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986, as amended (the "Code"), a
Person acting, directly or indirectly, on behalf of any such plan or any
Person acquiring such Certificates with "plan assets" of a Plan within the
meaning of the Department of Labor Regulations Section 2510.3-101; or
b. The Purchaser will provide the Depositor, the
Owner Trustee, the Certificate Registrar and the Servicer with either: (x) an
opinion of counsel, satisfactory to the Depositor, the Owner Trustee, the
Certificate Registrar and the Servicer, to the effect that the purchase and
holding of a Certificate by or on behalf of the Purchaser is permissible under
applicable law, will not constitute or result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code (or comparable
provisions of any subsequent enactments) and will not subject the Depositor,
the Owner Trustee, the Certificate Registrar or the Servicer to any obligation
or liability (including liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in the Trust Agreement, which opinion of
counsel shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer; or (y) in lieu of such opinion of
counsel, a certification in the form of Exhibit G to the Trust Agreement; and
(ii) the Purchaser is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406 and 407 of
ERISA and Section 4975 of the Code and understands that each of the parties to which
this certification is made is relying and will continue to rely on the statements
made in this paragraph 6.
7. The Purchaser is not a non-United States person.
Very truly yours,
By: _________________________________
Name:
Title:
EXHIBIT E
FORM OF TRANSFEROR REPRESENTATION LETTER
_________________ ,___________
Residential Asset Mortgage Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
JPMorgan Chase Bank, National Association
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Residential Asset Mortgage Products, Inc.
GMACM Home Equity Loan-Backed Certificates, Series 2006-HE2
Ladies and Gentlemen:
(the "Purchaser") intends to purchase from
(the "Seller") a ______% Percentage Interest of Certificates of Series
2006-HE2 (the "Certificates"), issued pursuant to the trust agreement dated as of June 29,
2006 (the "Trust Agreement"), between Residential Asset Mortgage Products, Inc., as
depositor (the "Depositor"), and Wilmington Trust Company, as owner trustee (the "Owner
Trustee"), as acknowledged and agreed by JPMorgan Chase Bank, National Association, as
Certificate Registrar. Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in Appendix A to the indenture dated as of June 29, 2006,
between the Trust and the Indenture Trustee. The Seller hereby certifies, represents and
warrants to, and covenants with, the Depositor and the Certificate Registrar that:
Neither the Seller nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in any Certificate or any
other similar security to any person in any manner, (b) has solicited any offer to buy or to
accept a pledge, disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has otherwise
approached or negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any general
solicitation by means of general advertising or in any other manner, or (e) has taken any
other action, that (as to any of (a) through (e) above) would constitute a distribution of
the Certificates under the Securities Act of 1933 (the "Act"), that would render the
disposition of any Certificate a violation of Section 5 of the Act or any state securities
law, or that would require registration or qualification pursuant thereto. The Seller will
not act, in any manner set forth in the foregoing sentence with respect to any Certificate.
The Seller has not and will not sell or otherwise transfer any of the Certificates, except
in compliance with the provisions of the Trust Agreement.
Very truly yours,
______________________________________
(Seller)
By: ___________________________________
Name:
Title:
EXHIBIT F
FORM OF CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status is delivered pursuant to Section 3.05 of the
trust agreement dated as of June 29, 2006 (the "Trust Agreement"), between Residential Asset
Mortgage Products, Inc., as depositor (the "Depositor"), and Wilmington Trust Company, as
owner trustee, in connection with the acquisition of, transfer to or possession by the
undersigned, whether as beneficial owner (the "Beneficial Owner"), or nominee on behalf of
the Beneficial Owner of GMACM Home Equity Loan-Backed Certificates, Series 2006-HE2 (the
"Certificates"). Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in Appendix A to the indenture dated as of June 29, 2006, between
the Trust and the Indenture Trustee.
Each holder must complete Part I, Part II (if the holder is a nominee), and in all
cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form W-9 relating
to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the
Internal Revenue Code (relating to withholding tax on foreign partners) do not apply in
respect of the Certificates held by the undersigned, the undersigned hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (the Beneficial Owner is ) not a non-resident alien for
purposes of U.S. income taxation;
2. My (the Beneficial Owner's) name and home address are:
______________________________________; and
3. My (the Beneficial Owner's) U.S. taxpayer identification number
(Social Security Number) is _______________________.
B. Corporate, Partnership or Other Entity as Beneficial Owner
1. (Name of the Beneficial Owner) is
not a foreign corporation, foreign partnership, foreign trust
or foreign estate (as those terms are defined in the Code and
Treasury Regulations;
2.. The Beneficial Owner's office address and place of
incorporation (if applicable) is
_____________________________________; and
3. The Beneficial Owner's U.S. employer identification number is
____________________________.
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the undersigned certifies
that this Certificate has been made in reliance upon information contained in:
an IRS Form W-9
a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned agrees to
notify the Trust at least thirty (30) days prior to the date that the form relied upon
becomes obsolete, and (ii) in connection with change in Beneficial Owners, the undersigned
agrees to submit a new Certificate of Non-Foreign Status to the Trust promptly after such
change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees to notify the
Trust within sixty (60) days of the date that the Beneficial Owner becomes a foreign
person. The undersigned understands that this certificate may be disclosed to the Internal
Revenue Service by the Trust and any false statement contained therein could be punishable
by fines, imprisonment or both.
Under penalties of perjury, I declare that I have examined this certificate and to
the best of my knowledge and belief it is true, correct and complete and will further
declare that I will inform the Trust of any change in the information provided above, and,
if applicable, I further declare that I have the authority* to sign this document.
____________________________________
Name
____________________________________
Title (if applicable)
____________________________________
Signature and Date
*NOTE: If signed pursuant to a power of attorney, the power of attorney must accompany this
certificate.
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
________________,_______
Residential Asset Mortgage Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
GMAC Mortgage Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
JPMorgan Chase Bank, National Association
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Residential Asset Mortgage Products, Inc.
GMACM Home Equity Loan-Backed Certificates, Series 2006-HE2
Dear Sirs:
____________________________________________ (the "Transferee") intends to
acquire from _______________________________ (the "Transferor") a _________% Percentage
Interest of GMACM Home Equity Loan-Backed Certificates, Series 2006-HE2 (the
"Certificates"), issued pursuant to a trust agreement dated as of June 29, 2006, between
Residential Asset Mortgage Products, Inc., as depositor (the "Depositor"), and Wilmington
Trust Company, as owner trustee (the "Owner Trustee"). Capitalized terms used herein that
are not otherwise defined shall have the meanings ascribed thereto in Appendix A to the
indenture dated as of June 29, 2006, between the Trust and the Indenture Trustee.
The Transferee hereby certifies, represents and warrants to, and covenants with, the
Depositor, the Owner Trustee, the Certificate Registrar and the Servicer that:
The Certificates (i) are not being acquired by, and will not be transferred to, any
employee benefit plan within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or other retirement arrangement,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and bank
collective investment funds and insurance company general or separate accounts in
which such plans, accounts or arrangements are invested, that is subject to Section
406 of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code") (any of the foregoing, a "Plan"), (ii) are not being acquired with "plan
assets" of a Plan within the meaning of the Department of Labor ("DOL") Regulations
Section 2510.3-101, and (iii) will not be transferred to any entity that is deemed to
be investing in plan assets within the meaning of the DOL Regulations Section
2510.3-101.
The Transferee is familiar with the prohibited transaction restrictions and
fiduciary responsibility requirements of Sections 406 and 407 of ERISA and Section
4975 of the Code and understands that each of the parties to which this certification
is made is relying and will continue to rely on the statements made herein.
Very truly yours,
By: _________________________________
Name:
Title:
EXHIBIT H
FORM OF REPRESENTATION LETTER
_____________ ,____
Residential Asset Mortgage Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
GMAC Mortgage Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
JPMorgan Chase Bank, National Association
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Residential Asset Mortgage Products, Inc.
GMACM Home Equity Loan-Backed Certificates, Series 2006-HE2
Dear Sirs:
______________________________ (the "Transferee") intends to acquire
from _________________________________ (the "Transferor") a ___________% Percentage
Interest of GMACM Home Equity Loan-Backed Certificates, Series 2006-HE2 (the
"Certificates"), issued pursuant to a trust agreement dated as of June 29, 2006 (the "Trust
Agreement"), Residential Asset Mortgage Products, Inc., as depositor (the "Depositor"), and
Wilmington Trust Company, as owner trustee (the "Owner Trustee"). Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto in Appendix A
to the indenture dated as of June 29, 2006, between the Trust and the Indenture Trustee.
The Transferee hereby certifies, represents and warrants to, and covenants with, the
Depositor, the Owner Trustee, the Certificate Registrar and the Servicer that:
(1) the Transferee is acquiring the Certificate for its own behalf and is
not acting as agent or custodian for any other person or entity in connection with
such acquisition; and
(2) the Transferee is not a partnership, grantor trust or S corporation for
federal income tax purposes, or, if the Transferee is a partnership, grantor trust or
S corporation for federal income tax purposes, the Certificates are not more than 50%
of the assets of the partnership, grantor trust or S corporation.
Very truly yours,
By: _____________________________
Name:
Title:
EXHIBIT I-1
FORM OF CLASS R-I CERTIFICATES
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON OR A
DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A
"REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE PROVIDES
EITHER A CERTIFICATION PURSUANT TO SECTION 3.05 OF THE AGREEMENT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE SERVICER, THE COMPANY OR THE TRUSTEE TO
ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE
PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1)
SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF,
ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE
SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT
SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY
ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS
SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION
511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE
COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE
PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING
CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED
ORGANIZATION"), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH
TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF
A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE
DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
Certificate No. 1
Class R Certificate
Percentage Interest: 100%
Cut-Off Date: June 1, 2006
Date of Trust Agreement: June 29, 2006
First Payment Date: July 25, 2006
Final Payment Date: May 25, 2036
GMACM HOME EQUITY LOAN-BACKED CERTIFICATE, SERIES 2006-HE2
evidencing a fractional undivided interest in GMACM Home Equity
Loan Trust 2006-HE2 (the "Trust"), the property of which
consists primarily of the Mortgage Loans.
This Certificate is payable solely from the assets of the Trust Estate, and does not
represent an obligation of or interest in the Depositor, the Sellers, the Servicer, the
Indenture Trustee or the Owner Trustee or any of their Affiliates. This Certificate is not
guaranteed or insured by any governmental agency or instrumentality or by the Depositor, the
Sellers, the Servicer, the Indenture Trustee or the Owner Trustee or any of their
affiliates. None of the Depositor, the Sellers, the Servicer, the Indenture Trustee or the
Owner Trustee or any of their Affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that GMAC Mortgage Corporation is the registered owner of the
Certificate Percentage Interest evidenced by this Certificate (as set forth on the face
hereof) in certain distributions with respect to the Trust Estate, consisting primarily of
the Mortgage Loans, created by Residential Asset Mortgage Products, Inc. (the "Depositor").
The Trust (as defined herein) was created pursuant to a trust agreement dated as of June 29,
2006 (as amended and supplemented from time to time, the "Agreement"), between the Depositor
and Wilmington Trust Company, as owner trustee (the "Owner Trustee," which term includes any
successor entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in Appendix A to the indenture dated as of June 29,
2006, between the Trust and the Indenture Trustee. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which Agreement the
Certificateholder of this Certificate by virtue of the acceptance hereof assents and by
which such Certificateholder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the 25th day
of each March, June, September and December or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Payment Date"), commencing on the first Payment
Date specified above, to the Person in whose name this Certificate is registered at the
close of business on the last day (or if such last day is not a Business Day, the Business
Day immediately preceding such last day) of the month immediately preceding the month of
such distribution (the "Record Date"), in an amount equal to the pro rata portion evidenced
by this Certificate (based on the Percentage Interest stated on the face hereon) of the
amount, if any, required to be distributed to Certificateholders of Certificates on such
Payment Date. Distributions on this Certificate will be made as provided in the Agreement
by the Certificate Paying Agent by wire transfer or check mailed to the Certificateholder of
record in the Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon.
Except as otherwise provided in the Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the Certificate
Paying Agent of the pendency of such distribution and only upon presentation and surrender
of this Certificate at the Corporate Trust Office of the Certificate Registrar. This
Certificate has no Certificate Balance.
Each Certificateholder of this Certificate will be deemed to have agreed to be bound
by the restrictions set forth in the Agreement to the effect that (i) each person holding or
acquiring any Ownership Interest in this Certificate must be a United States Person and a
Permitted Transferee, (ii) the transfer of any Ownership Interest in this Certificate will
be conditioned upon the delivery to the Indenture Trustee of, among other things, an
affidavit to the effect that it is a United States Person and Permitted Transferee, (iii)
any attempted or purported transfer of any Ownership Interest in this Certificate in
violation of such restrictions will be absolutely null and void and will vest no rights in
the purported transferee, and (iv) if any person other than a United States Person and a
Permitted Transferee acquires any Ownership Interest in this Certificate in violation of
such restrictions, then the Depositor will have the right, in its sole discretion and
without notice to the Certificateholder of this Certificate, to sell this Certificate to a
purchaser selected by the Depositor, which purchaser may be the Depositor, or any affiliate
of the Depositor, on such terms and conditions as the Depositor may choose.
No transfer of this Class R-I Certificate will be made unless the Indenture Trustee
has received either (i) an opinion of counsel acceptable to and in form and substance
satisfactory to the Trustee, the Depositor and the Servicer 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 Certificates designated as
GMACM Home Equity Loan-Backed Certificates of the Series specified hereon (the
"Certificates").
The Certificateholder of this Certificate, by its acceptance hereof, agrees that it
will look solely to the funds on deposit in the Distribution Account that have been released
from the Lien of the Indenture for payment hereunder and that neither the Owner Trustee in
its individual capacity nor the Depositor is personally liable to the Certificateholders for
any amount payable under this Certificate or the Agreement or, except as expressly provided
in the Agreement, subject to any liability under the Agreement.
The Certificateholder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the rights of the
Noteholders and the Enhancer as described in the Indenture.
Each Certificateholder, by its acceptance of a Certificate, covenants and agrees that
such Certificateholder will not at any time institute against the Depositor, or join in any
institution against the Depositor or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any obligations
relating to the Certificates, the Notes, the Agreement or any of the other Basic Documents.
The Agreement permits the amendment thereof as specified below, provided that any
amendment be accompanied by an Opinion of Counsel to the Owner Trustee and the Enhancer to
the effect that such amendment complies with the provisions of the Agreement and will not
cause the Trust to be subject to an entity level tax. If the purpose of any such amendment
is to correct any mistake, eliminate any inconsistency, cure any ambiguity or deal with any
matter not covered, it shall not be necessary to obtain the consent of any
Certificateholder, but the Owner Trustee shall be furnished with a letter from each Rating
Agency to the effect that such amendment will not cause a Rating Event, determined without
regard to the Policy. If the purpose of any such amendment is to prevent the imposition of
any federal or state taxes at any time that any Security is Outstanding, it shall not be
necessary to obtain the consent of the any Certificateholder, but the Owner Trustee and the
Enhancer shall be furnished with an Opinion of Counsel that such amendment is necessary or
helpful to prevent the imposition of such taxes and is not materially adverse to any
Certificateholder. If the purpose of the amendment is to add or eliminate or change any
provision of the Agreement, other than as specified in the preceding two sentences, the
amendment shall require either (a) a letter from each Rating Agency to the effect that such
amendment will not cause a Rating Event, determined without regard to the Policy or (b) the
consent of Certificateholders of a majority of the Percentage Interests of the Certificates
and the Indenture Trustee; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the time of, payments received that are required to be
distributed on any Certificate without the consent of all Certificateholders affected
thereby, or (ii) reduce the aforesaid percentage of Certificates the Certificateholders of
which are required to consent to any such amendment without the consent of the
Certificateholders of all such Certificates then outstanding.
As provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registerable in the Certificate Register upon surrender
of this Certificate for registration of transfer at the Corporate Trust Office of the
Certificate Registrar, accompanied by a written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Certificateholder hereof or such
Certificateholder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee. The initial Certificate Registrar
appointed under the Agreement is the Owner Trustee.
Except as provided in the Agreement, the Certificates are issuable only in minimum
denominations of a 10.0000% Percentage Interest and in integral multiples of a 0.0001%
Percentage Interest in excess thereof. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new Certificates of
authorized denominations, as requested by the Certificateholder surrendering the same. This
Certificate is issued in the Percentage Interest above.
No service charge will be made for any such registration of transfer or exchange, but
the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar and any
agent of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar or any such agent shall be affected by any notice to the contrary.
This Certificate shall be governed by and construed in accordance with the laws of
the State of Delaware.
The obligations created by the Agreement in respect of this Certificate and the Trust
created thereby shall terminate upon the final distribution of all moneys or other property
or proceeds of the Trust Estate in accordance with the terms of the Indenture and the
Agreement.
Unless the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual signature,
this Certificate shall not be entitled to any benefit under the Agreement or be valid for
any purpose.
[Signature Page Follows]
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Class SB Certificate to be duly executed.
GMACM HOME EQUITY LOAN TRUST 2006-HE2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
Dated: June 29, 2006 By: _____________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ___________________________________________
Authorized Signatory
or ____________________________________________,
as Authenticating Agent of the Trust
By:_____________________________________________
Authorized Signatory
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer unto
______________________________________________________________________________
(name and address of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably constituting and
appointing ___________________________________________________________________________________
to transfer said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:______________________
_____________________________________ */
Signature Guaranteed:
___________________________ */
*/ NOTICE: The signature to this assignment must correspond with the name as it appears
upon the face of the within Certificate in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the Certificate
Paying Agent:
Distribution shall be made by wire transfer in immediately available funds to
______________________________________________________________________________________________
for the account of ____________________________________________________________, account
number ___________________________, or, if mailed by check, to _______________________________.
Applicable statements should be mailed to ___________________________________________.
________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT I-2
FORM OF CLASS R-II 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 3.05 OF THE AGREEMENT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE SERVICER, THE COMPANY OR THE TRUSTEE TO
ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE
PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE TRUSTEE THAT (1)
SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF,
ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE
SUBJECT TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT
SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY
ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS
SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION
511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE
COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE
PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING
CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED
ORGANIZATION"), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH
TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF
A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE
DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
Certificate No. 1
Class R-II Certificate
Percentage Interest: 100%
Cut-Off Date: June 1, 2006
Date of Trust Agreement: June 29, 2006
First Payment Date: July 25, 2006
Final Payment Date: May 25, 2036
GMACM HOME EQUITY LOAN-BACKED CERTIFICATE, SERIES 2006-HE2
evidencing a fractional undivided interest in GMACM Home Equity
Loan Trust 2006-HE2 (the "Trust"), the property of which
consists primarily of the Mortgage Loans.
This Certificate is payable solely from the assets of the Trust Estate, and does not
represent an obligation of or interest in the Depositor, the Sellers, the Servicer, the
Indenture Trustee or the Owner Trustee or any of their Affiliates. This Certificate is not
guaranteed or insured by any governmental agency or instrumentality or by the Depositor, the
Sellers, the Servicer, the Indenture Trustee or the Owner Trustee or any of their
affiliates. None of the Depositor, the Sellers, the Servicer, the Indenture Trustee or the
Owner Trustee or any of their Affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that GMAC Mortgage Corporation is the registered owner of the
Certificate Percentage Interest evidenced by this Certificate (as set forth on the face
hereof) in certain distributions with respect to the Trust Estate, consisting primarily of
the Mortgage Loans, created by Residential Asset Mortgage Products, Inc. (the "Depositor").
The Trust (as defined herein) was created pursuant to a trust agreement dated as of June 29,
2006 (as amended and supplemented from time to time, the "Agreement"), between the Depositor
and Wilmington Trust Company, as owner trustee (the "Owner Trustee," which term includes any
successor entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in Appendix A to the indenture dated as of June 29,
2006, between the Trust and the Indenture Trustee. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which Agreement the
Certificateholder of this Certificate by virtue of the acceptance hereof assents and by
which such Certificateholder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the 25th day
of each March, June, September and December or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Payment Date"), commencing on the first Payment
Date specified above, to the Person in whose name this Certificate is registered at the
close of business on the last day (or if such last day is not a Business Day, the Business
Day immediately preceding such last day) of the month immediately preceding the month of
such distribution (the "Record Date"), in an amount equal to the pro rata portion evidenced
by this Certificate (based on the Percentage Interest stated on the face hereon) of the
amount, if any, required to be distributed to Certificateholders of Certificates on such
Payment Date. Distributions on this Certificate will be made as provided in the Agreement
by the Certificate Paying Agent by wire transfer or check mailed to the Certificateholder of
record in the Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon.
Except as otherwise provided in the Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the Certificate
Paying Agent of the pendency of such distribution and only upon presentation and surrender
of this Certificate at the Corporate Trust Office of the Certificate Registrar. This
Certificate has no Certificate Balance.
Each Certificateholder of this Certificate will be deemed to have agreed to be bound
by the restrictions set forth in the Agreement to the effect that (i) each person holding or
acquiring any Ownership Interest in this Certificate must be a United States Person and a
Permitted Transferee, (ii) the transfer of any Ownership Interest in this Certificate will
be conditioned upon the delivery to the Indenture Trustee of, among other things, an
affidavit to the effect that it is a United States Person and Permitted Transferee, (iii)
any attempted or purported transfer of any Ownership Interest in this Certificate in
violation of such restrictions will be absolutely null and void and will vest no rights in
the purported transferee, and (iv) if any person other than a United States Person and a
Permitted Transferee acquires any Ownership Interest in this Certificate in violation of
such restrictions, then the Depositor will have the right, in its sole discretion and
without notice to the Certificateholder of this Certificate, to sell this Certificate to a
purchaser selected by the Depositor, which purchaser may be the Depositor, or any affiliate
of the Depositor, on such terms and conditions as the Depositor may choose.
No transfer of this Class R-II Certificate will be made unless the Indenture Trustee
has received either (i) an opinion of counsel acceptable to and in form and substance
satisfactory to the Trustee, the Depositor and the Servicer 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 Certificates designated as
GMACM Home Equity Loan-Backed Certificates of the Series specified hereon (the
"Certificates").
The Certificateholder of this Certificate, by its acceptance hereof, agrees that it
will look solely to the funds on deposit in the Distribution Account that have been released
from the Lien of the Indenture for payment hereunder and that neither the Owner Trustee in
its individual capacity nor the Depositor is personally liable to the Certificateholders for
any amount payable under this Certificate or the Agreement or, except as expressly provided
in the Agreement, subject to any liability under the Agreement.
The Certificateholder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the rights of the
Noteholders and the Enhancer as described in the Indenture.
Each Certificateholder, by its acceptance of a Certificate, covenants and agrees that
such Certificateholder will not at any time institute against the Depositor, or join in any
institution against the Depositor or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any obligations
relating to the Certificates, the Notes, the Agreement or any of the other Basic Documents.
The Agreement permits the amendment thereof as specified below, provided that any
amendment be accompanied by an Opinion of Counsel to the Owner Trustee and the Enhancer to
the effect that such amendment complies with the provisions of the Agreement and will not
cause the Trust to be subject to an entity level tax. If the purpose of any such amendment
is to correct any mistake, eliminate any inconsistency, cure any ambiguity or deal with any
matter not covered, it shall not be necessary to obtain the consent of any
Certificateholder, but the Owner Trustee shall be furnished with a letter from each Rating
Agency to the effect that such amendment will not cause a Rating Event, determined without
regard to the Policy. If the purpose of any such amendment is to prevent the imposition of
any federal or state taxes at any time that any Security is Outstanding, it shall not be
necessary to obtain the consent of the any Certificateholder, but the Owner Trustee and the
Enhancer shall be furnished with an Opinion of Counsel that such amendment is necessary or
helpful to prevent the imposition of such taxes and is not materially adverse to any
Certificateholder. If the purpose of the amendment is to add or eliminate or change any
provision of the Agreement, other than as specified in the preceding two sentences, the
amendment shall require either (a) a letter from each Rating Agency to the effect that such
amendment will not cause a Rating Event, determined without regard to the Policy or (b) the
consent of Certificateholders of a majority of the Percentage Interests of the Certificates
and the Indenture Trustee; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the time of, payments received that are required to be
distributed on any Certificate without the consent of all Certificateholders affected
thereby, or (ii) reduce the aforesaid percentage of Certificates the Certificateholders of
which are required to consent to any such amendment without the consent of the
Certificateholders of all such Certificates then outstanding.
As provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registerable in the Certificate Register upon surrender
of this Certificate for registration of transfer at the Corporate Trust Office of the
Certificate Registrar, accompanied by a written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Certificateholder hereof or such
Certificateholder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee. The initial Certificate Registrar
appointed under the Agreement is the Owner Trustee.
Except as provided in the Agreement, the Certificates are issuable only in minimum
denominations of a 10.0000% Percentage Interest and in integral multiples of a 0.0001%
Percentage Interest in excess thereof. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new Certificates of
authorized denominations, as requested by the Certificateholder surrendering the same. This
Certificate is issued in the Percentage Interest above.
No service charge will be made for any such registration of transfer or exchange, but
the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar and any
agent of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar or any such agent shall be affected by any notice to the contrary.
This Certificate shall be governed by and construed in accordance with the laws of
the State of Delaware.
The obligations created by the Agreement in respect of this Certificate and the Trust
created thereby shall terminate upon the final distribution of all moneys or other property
or proceeds of the Trust Estate in accordance with the terms of the Indenture and the
Agreement.
Unless the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual signature,
this Certificate shall not be entitled to any benefit under the Agreement or be valid for
any purpose.
[Signature Page Follows]
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Class SB Certificate to be duly executed.
GMACM HOME EQUITY LOAN TRUST 2006-HE2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
Dated: June 29, 2006 By: _____________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ___________________________________________
Authorized Signatory
or ____________________________________________,
as Authenticating Agent of the Trust
By:_____________________________________________
Authorized Signatory
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer unto
______________________________________________________________________________
(name and address of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably constituting and
appointing ___________________________________________________________________________________
to transfer said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:______________________
_____________________________________ */
Signature Guaranteed:
___________________________ */
*/ NOTICE: The signature to this assignment must correspond with the name as it appears
upon the face of the within Certificate in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the Certificate
Paying Agent:
Distribution shall be made by wire transfer in immediately available funds to
______________________________________________________________________________________________
for the account of ____________________________________________________________, account
number ___________________________, or, if mailed by check, to _______________________________.
Applicable statements should be mailed to ___________________________________________.
________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT J-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
(1) That he is [Title of Officer] of [Name of Owner] (record or beneficial owner of the
GMACM Home Equity Loan-Backed Certificates, Series 2006-HE2, Class R-[ ] (the "Owner")), a
[savings institution] [corporation] duly organized and existing under the laws of [the State
of _____________________________________] [the United States], on behalf of which he makes
this affidavit and agreement.
(2) That the Owner (i) is not and will not be a "disqualified organization" or an
electing large partnership as of [date of transfer] within the meaning of Sections
860E(e)(5) and 775, respectively, of the Internal Revenue Code of 1986, as amended (the
"Code") or an electing large partnership under Section 775(a) of the Code, (ii) will endeavor
to remain other than a disqualified organization for so long as it retains its ownership
interest in the Class R-[ ] Certificates, and (iii) is acquiring the Class R-[ ]
Certificates for its own account or for the account of another Owner from which it has
received an affidavit and agreement in substantially the same form as this affidavit and
agreement. (For this purpose, a "disqualified organization" means an electing large
partnership under Section 775 of the Code, the United States, any state or political
subdivision thereof, any agency or instrumentality of any of the foregoing (other than an
instrumentality all of the activities of which are subject to tax and, except for the
Federal Home Loan Mortgage Corporation, a majority of whose board of directors is not
selected by any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or organization,
any rural electric or telephone cooperative, or any organization (other than certain
farmers' cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income).
(3) That the Owner is aware (i) of the tax that would be imposed on transfers of Class R
Certificates to disqualified organizations or electing large partnerships, under the Code,
that applies to all transfers of Class R Certificates after March 31, 1988; (ii) that such
tax would be on the transferor (or, with respect to transfers to electing large
partnerships, on each such partnership), or, if such transfer is through an agent (which
person includes a broker, nominee or middleman) for a disqualified organization, on the
agent; (iii) that the person (other than with respect to transfers to electing large
partnerships) otherwise liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such person an affidavit that the transferee is not a disqualified
organization and, at the time of transfer, such person does not have actual knowledge that
the affidavit is false; and (iv) that the Class R-[ ] Certificates may be "noneconomic
residual interests" within the meaning of Treasury regulations promulgated pursuant to the
Code and that the transferor of a noneconomic residual interest will remain liable for any
taxes due with respect to the income on such residual interest, unless no significant
purpose of the transfer was to impede the assessment or collection of tax.
(4) That the Owner is aware of the tax imposed on a "pass-through entity" holding Class R
Certificates if either the pass-through entity is an electing large partnership under
Section 775 of the if at any time during the taxable year of the pass-through entity a
disqualified organization is the record holder of an interest in such entity. (For this
purpose, a "pass through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and certain
cooperatives.)
(5) The Owner is 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 (except in the case of a partnership, to the extent provided
in Treasury regulations), or an estate that is described in Section 7701(a)(30)(D) of the
Code, or a trust that is described in Section 7701(a)(30)(E) of the Code.
(6) That the Owner is aware that the Certificate Registrar will not register the transfer
of any Class R Certificates unless the transferee, or the transferee's agent, delivers to it
an affidavit and agreement, among other things, in substantially the same form as this
affidavit and agreement. The Owner expressly agrees that it will not consummate any such
transfer if it knows or believes that any of the representations contained in such affidavit
and agreement are false.
(7) That the Owner has reviewed the restrictions set forth on the face of the Class R
Certificates and the provisions of Section 3.05 of the Trust Agreement under which the
Class R-[ ] Certificates were issued (in particular, clause (i)(A) and (i)(B) of Section
3.05 which authorize the Certificate Registrar to deliver payments to a person other than
the Owner and negotiate a mandatory sale by the Servicer Trustee in the event the Owner
holds such Certificates in violation of Section 3.05). The Owner expressly agrees to be
bound by and to comply with such restrictions and provisions.
(8) 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.
(9) The Owner's Taxpayer Identification Number is .
(10) 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.
(11) 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.
(12) 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.
(13) 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.
(14) The Purchaser is not an employee benefit plan or other plan subject to the prohibited
transaction provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or
an investment manager, named fiduciary or a trustee of any such plan, or any other Person
acting, directly or indirectly, on behalf of or purchasing any Certificate with "plan
assets" of any such plan.
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Title of Officer] and
its corporate seal to be hereunto attached, attested by its [Assistant] Secretary, this ____
day of __________, ____________.
[NAME OF OWNER]
By: _______________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and to be the
[Title of Officer] of the Owner, and acknowledged to me that he executed the same as his
free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ____ day of __________, ____________.
NOTARY PUBLIC
COUNTY OF __________________
STATE OF ____________________
My Commission expires the ______day of ________, 20___.
EXHIBIT J-2
FORM OF TRANSFEROR CERTIFICATE
_______, 20___
Residential Asset Mortgage Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Re: GMACM Home Equity Loan-Backed Term Notes,
Series 2006-HE2, Class R
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
__________________________________________________________________ (the "Seller") to
____________________________________________________________________ (the "Purchaser") of
$________________________ Initial Certificate Principal Balance of GMACM Home Loan Backed
Pass-Through Certificates, Series 2006-HE2, Class R-[ ] (the "Certificates"), pursuant to
Section 3.05 of the Trust Agreement (the "Trust Agreement"), dated as of June 29, 2006 among
Residential Asset Mortgage Products, Inc., as seller (the "Company"), GMAC Mortgage
Corporation, as servicer, and Wilmington Trust Company, as owner trustee (the "Trustee").
All terms used herein and not otherwise defined shall have the meanings set forth in the
Trust Agreement. The Seller hereby certifies, represents and warrants to, and covenants
with, the Company and the Trustee that:
(15) No purpose of the Seller relating to the transfer of the Certificate by the Seller to
the Purchaser is or will be to impede the assessment or collection of any tax.
(16) The Seller understands that the Purchaser has delivered to the Trustee and the
Servicer a transfer affidavit and agreement in the form attached to the Trust Agreement as
Exhibit J-1. The Seller does not know or believe that any representation contained therein
is false.
(17) The Seller has at the time of the transfer conducted a reasonable investigation of
the financial condition of the Purchaser as contemplated by Treasury Regulations Section
1.860E-1(c)(4)(i) and, as a result of that investigation, the Seller has determined that the
Purchaser has historically paid its debts as they become due and has found no significant
evidence to indicate that the Purchaser will not continue to pay its debts as they become
due in the future. The Seller understands that the transfer of a Class R-[ ] Certificate
may not be respected for United States income tax purposes (and the Seller may continue to
be liable for United States income taxes associated therewith) unless the Seller has
conducted such an investigation.
(18) The Seller has no actual knowledge that the proposed Transferee is not both a United
States Person and a Permitted Transferee.
Very truly yours,
____________________________________
(Seller)
By:
Name:
Title: ______________________________
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or invest on a
discretionary basis at least $10,000,000 in securities.