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RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Depositor
and
________________
as Owner Trustee
________________________________________
TRUST AGREEMENT
Dated as of ________________
________________________________________
HOME EQUITY LOAN TRUST [ ]-[ ]
Home Equity Loan-Backed Certificates,
Series [ ]-[ ]
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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 3.13. 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 Miscellaneous................................................25
Section 10.01. Amendments.............................................25
Section 10.02. No Legal Title to Trust Estate.........................26
Section 10.03. Limitations on Rights of Others........................27
Section 10.04. Notices................................................27
Section 10.05. Severability...........................................27
Section 10.06. Separate Counterparts..................................27
Section 10.07. Successors and Assigns.................................27
Section 10.08. No Petition............................................28
Section 10.09. No Recourse............................................28
Section 10.10. Headings...............................................28
Section 10.11. GOVERNING LAW..........................................28
Section 10.12. Integration............................................28
Section 10.13. Rights of Enhancer to Exercise Rights of
Certificateholders.....................................28
1
This trust agreement, dated as of ________________ (as amended from
time to time, the "Trust Agreement"), is between Residential Asset Mortgage
Products, Inc., a Delaware corporation, as depositor (the "Depositor"), and
________________, 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
________________ (the "Indenture"), between Home Equity Loan Trust
[ ]-[ ], as Issuer, and ________________, 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 "Home
Equity Loan Trust [ ]-[ ]," 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, for so long as 100% of the Certificates are held by a
single person or entity, the Trust shall be treated as a disregarded entity,
with the Trust Estate being treated as assets of a single person or entity,
and the Notes being treated as debt of the single person or entity, and the
provisions of this Trust Agreement shall be interpreted to further this
intention. If more than one person owns the Certificates, it is the further
intention of the parties hereto that solely for federal, state and local
income and franchise tax purposes the Owner Trust shall be treated as a
partnership, with the assets of the partnership being Trust Estate, the
partners of the partnership being the Certificateholders and the Notes being
debt of the partnership. 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 obligations as
provided in Section 7.2 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 __________ or the
State of ___________. 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
___________ or ____________. 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, _______ shall be the sole Certificateholder of each Class of
Certificates.
Section 3.03. Issuance of Certificates. The Certificates shall be issued
in minimum denominations of a Percentage Interest of 10.0000% and integral
multiples of 0.0001% in excess thereof. The Certificates shall be issued in
substantially the form attached hereto as Exhibit A.
The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Owner Trustee and
authenticated in the manner provided in Section 3.04. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be validly issued and entitled to the benefit of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates. A Person shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such Person's acceptance of a Certificate
duly registered in such Person's name, pursuant to Section 3.05.
A transferee of a Certificate shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a
Certificate duly registered in such transferee's name pursuant to and upon
satisfaction of the conditions set forth in Section 3.05.
Section 3.04. Authentication of Certificates. Concurrently with the
acquisition of the 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 _______, signed
by its chairman of the board, its president or any vice president, without
further corporate action by _______, 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 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. The initial Certificateholder agrees to
not transfer any Certificate during either the Revolving Period or the
Managed Amortization Period, unless the initial Certificateholder receives an
Opinion of Counsel stating that such transfer of the Certificate will not
adversely affect the opinion delivered on the Closing Date by such counsel
regarding the transfer of the Mortgage Loans by _______ to the Depositor.
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, no transfer of a Certificate shall be permitted, and no
such transfer shall be registered by the Certificate Registrar or be
effective hereunder, unless evidenced by an Opinion of Counsel addressed to
the Certificate Registrar and the Enhancer that establishes that such
transfer or the registration of such transfer would not cause the Trust to be
classified as a publicly traded partnership, by having more than 100
Certificateholders at any time during the taxable year of the Trust, an
association taxable as a corporation, a corporation or a taxable mortgage
pool for federal and relevant state income tax purposes, which Opinion of
Counsel shall not be an expense of the Certificate Registrar and shall be an
expense of the proposed transferee. No Opinion of Counsel will be required
if such transfer is made to a nominee of an existing beneficial holder of a
Certificate.
In addition, no transfer, sale, assignment, pledge or other disposition
of a Certificate shall be made unless the proposed transferee executes a
representation letter substantially in the form of Exhibit H hereto, that (1)
the transferee is acquiring such Certificate for its own behalf and is not
acting as agent or custodian for any other Person or entity in connection
with such acquisition and (2) if the transferee is a partnership, grantor
trust or S corporation for federal income tax purposes, the Certificates
acquired are not more than 50% of the assets of the partnership, grantor
trust or S corporation.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates. If (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.
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 10.13 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) 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 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 and 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 such
Certificateholders 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 ________________ 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 ________________, or (iii) subject
________________ 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 ________________ or the Owner Trustee, as
the case may be, contemplated hereby.
Section 4.12. Removal of Mortgage Loans. Certificateholders holding 100%
of the Certificate Percentage Interests of the Certificates may, by
delivering a written request to the Owner Trustee to such effect, cause the
removal of Mortgage Loans from the Trust Estate in accordance with the
provisions of Section 3.15(c) of the Servicing Agreement. Promptly following
receipt of any such request, the Owner Trustee shall deliver to the Servicer
the written notice and request required to be delivered to the Servicer
pursuant to Section 3.15(c) of the Servicing Agreement. Any Mortgage Loans
removed from the Trust Estate pursuant to Section 3.15(c) of the Servicing
Agreement shall be property of the Issuer and, upon the written request of
the Certificateholders holding 100% of the Certificate Percentage Interests
of the Certificates, be released to the Certificateholders as a dividend and
in accordance with the written instructions of such Certificateholders.
ARTICLE V
Application of Trust Funds
Section 5.01. Distributions.
(a) On each Payment Date 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. All distributions made pursuant to this Section to any
Certificates shall be distributed to the Certificateholders pro rata based on
the respective Percentage Interests thereof.
(b) In the event that any withholding tax is imposed on the distributions
(or allocations of income) to a Certificateholder, such tax shall reduce the
amount otherwise distributable to 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.
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 Servicer, as the Tax Matters
Partner or the agent for the Tax Matters Partner, shall sign on behalf of the
Trust the tax returns, if any, of the Trust.
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.
Section 5.05. Tax Reporting. So long as the Depositor or any Affiliate of
the Depositor owns 100% of the Certificates, then no separate federal and
state income tax returns and information returns or statements will be filed
with respect to the Trust. If the Servicer is no longer the sole
Certificateholder, the subsequent holders of the Certificates by their
acceptance of a Certificate, agree to appoint the Servicer as their agent and
the Servicer, as agent for such holders, agrees to perform all duties
necessary to comply with federal and state income tax laws.
Any Certificateholder that holds 100% of the Certificates agrees by its
purchase of 100% of the Certificates to treat the Trust Estate as assets of a
single person or entity wholly owned by such Certificateholder for purposes
of federal and state income tax, franchise tax and any other tax measured in
whole or in part by income, with the assets of the single person or entity
being the assets held by the Trust, and the Notes being treated as debt of
the Trust.
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. 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 ________________ 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) such Certificateholder 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
such Certificateholder written notice thereof promptly after the Indemnified
Party shall have actual knowledge thereof;
(c) while maintaining control over its own defense, such Certificateholder
shall consult with the Indemnified Party in preparing such defense; and
(d) notwithstanding anything in this Trust Agreement to the contrary, such
Certificateholder shall not be liable for settlement of any claim by an
Indemnified Party entered into without the prior consent of such
Certificateholder, which consent shall not be unreasonably withheld.
The indemnities contained in this Section shall survive the resignation
or termination of the Owner Trustee or the termination of this Trust
Agreement. In the event of any 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 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 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.
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
Miscellaneous
Section 10.01. Amendments.
(a) This Trust Agreement may be amended from time to time by the parties
hereto as specified in this Section 10.01, 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 complies with the provisions of this Section.
(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, 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 10.01 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents (and any other
consents of Certificateholders provided for in this Trust Agreement or in any
other Basic Document) and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any agreement to
which the Trust is a party, other than this Trust Agreement, the Owner
Trustee shall be entitled to receive and conclusively rely upon an Opinion of
Counsel to the effect that such amendment is authorized or permitted by the
documents subject to such amendment and that all conditions precedent in the
Basic Documents for the execution and delivery thereof by the Trust or the
Owner Trustee, as the case may be, have been satisfied.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
Section 10.02. 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 10.03. Limitations on Rights of Others. Except for Section 2.07,
the provisions of this Trust Agreement are solely for the benefit of the
Owner Trustee, the Depositor, the Certificateholders, the 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 10.04. Notices.
(a) Unless otherwise expressly specified or permitted by the terms hereof,
all notices shall be in writing and shall be deemed given upon receipt: if
to the Owner Trustee, addressed to its Corporate Trust Office; if to the
Certificate Paying Agent, addressed to __________________, with a copy to the
Corporate Trust Office of the Indenture Trustee, if to the Depositor,
addressed to Residential Asset Mortgage Products, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President, Re:
Home Equity Loan Trust Series [ ]-[ ]; if to the Enhancer, addressed to
_________________, 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.
Section 10.05. Severability. Any provision of this Trust Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 10.06. Separate Counterparts. This Trust Agreement may be
executed by the parties hereto in 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 10.07. Successors and Assigns. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, each of the 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 10.08. 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 10.09. 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 10.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. Integration. This Trust Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof
and supersedes all prior agreements and understanding pertaining thereto.
Section 10.13. Rights of Enhancer to Exercise Rights of
Certificateholders. By accepting its Certificate, each Certificateholder
agrees that unless a Enhancer Default exists, 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
________________,
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:
________________,
as Indenture Trustee, Certificate Registrar
and Certificate Paying Agent
By:
Name:
Title:
EXHIBIT A
FORM OF CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM NOTES
AND THE VARIABLE PAY REVOLVING NOTES AS DESCRIBED IN THE AGREEMENT (AS
DEFINED HEREIN).
THIS CERTIFICATE IS ISSUED IN THE PERCENTAGE INTEREST SET FORTH BELOW.
THIS 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 CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER 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 CERTIFICATE (EACH, A "PLAN
INVESTOR"), OR (ii) IF THIS 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, OR A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE
AGREEMENT, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS 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 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 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.
Certificate No. 1
Cut-Off Date:
_________________
Date of Trust Agreement:
________________
First Payment Date: Percentage Interest: 100%
_________________
Final Payment Date:
_________________
HOME EQUITY LOAN-BACKED CERTIFICATE, SERIES [ ]-[ ]
evidencing a fractional undivided interest in Home Equity Loan Trust
[ ]-[ ] (the "Issuer"), 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 _________________ 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
________________ (as amended and supplemented from time to time, the
"Agreement"), between the Depositor and ________________, 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 ________________, 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 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, or as otherwise
determined in accordance with the Trust Agreement, 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. Pursuant to the
Agreement, the Trust has issued one Class of Certificates.
Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Certificate will be made after due
notice by the Certificate Paying Agent of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency designated by the Certificate Registrar for that purpose in the City
and State of New York.
No transfer of this 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 as described by the
Agreement, stating that the transferee is not an employee benefit or other
plan subject to the prohibited transaction restrictions or the fiduciary
responsibility requirements of ERISA or Section 4975 of the Code (a "Plan"),
any person acting, directly or indirectly, on behalf of any such Plan or any
Person using the "plan assets," within the meaning of the Department of Labor
Regulations 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, or
a certification in the form of Exhibit G to the Agreement, to the effect that
the purchase or holding of such 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 Certificate is one of a duly authorized issue of Certificates
designated as 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 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 Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained
in the City and State of New York, 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.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
HOME EQUITY LOAN TRUST [ ]-[ ]
By: ________________,
not in its individual capacity
but solely as Owner Trustee
Dated: ________________ By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
________________,
not in its individual capacity
but solely as Owner Trustee
By:
Authorized Signatory
or ,
as Authenticating Agent of the Owner Trustee
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
_____________________________________ */
Signature Guaranteed:
___________________________ */
*/ NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must
be guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available
funds to
for the account of
, account number
, or, if mailed by check, to
.
Applicable statements should be mailed to
.
________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT B
CERTIFICATE OF TRUST
OF
HOME EQUITY LOAN TRUST [ ]-[ ]
THE UNDERSIGNED, ________________, 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:
HOME EQUITY LOAN TRUST [ ]-[ ]
2. The name and business address of the Trustee of the statutory
trust in the State Delaware is ________________, ___________________.
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.
________________,
not in its individual capacity but
solely as owner trustee under the
trust agreement to be dated as of
________________
By:
Name:
Title:
Dated: _________________
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 ________________ (the "Agreement"), between Residential
Asset Mortgage Products, Inc., as depositor (the "Depositor"), and
________________, 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
________________, 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.
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.
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________________
________________
________________
Attention: ________________
Re: Residential Asset Mortgage Products, Inc.,
Home Equity Loan-Backed Certificates, Series [ ]-[ ]
Ladies and Gentlemen:
___________________ (the "Purchaser") intends to purchase from
(the "Seller") % Certificate
Percentage Interest of Series [ ]-[ ] (the "Certificates"), issued
pursuant to the trust agreement dated as of ________________ (the "Trust
Agreement"), between Residential Asset Mortgage Products, Inc., as depositor
(the "Depositor") and ________________, as owner trustee (the "Owner
Trustee"), as acknowledged and agreed by ________________, 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 ________________, 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.
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________________
________________
________________
Attention: ________________
Re: Residential Asset Mortgage Products, Inc.
Home Equity Loan-Backed Certificates, Series [ ]-[ ]
Ladies and Gentlemen:
(the "Purchaser") intends to purchase from
(the "Seller") a ______% Percentage Interest of
Certificates of Series [ ]-[ ] (the "Certificates"), issued pursuant to
the trust agreement dated as of ________________ (the "Trust Agreement"),
between Residential Asset Mortgage Products, Inc., as depositor (the
"Depositor"), and ________________, as owner trustee (the "Owner Trustee"),
as acknowledged and agreed by ________________, 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
________________, 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 ________________ (the "Trust
Agreement"), between Residential Asset Mortgage Products, Inc., as depositor
(the "Depositor"), and ________________, 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 Home Equity Loan-Backed Certificates, Series [ ]-[ ]
(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 ________________, 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.
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________________
________________
________________
________________
________________
________________
________________
________________
________________
________________
Attention: ________________
Re: Residential Asset Mortgage Products, Inc.
Home Equity Loan-Backed Certificates, Series [ ]-[ ]
Dear Sirs:
(the "Transferee")
intends to acquire from (the
"Transferor") a % Percentage Interest of Home Equity Loan-Backed
Certificates, Series [ ]-[ ] (the "Certificates"), issued pursuant to a
trust agreement dated as of ________________, between Residential Asset
Mortgage Products, Inc., as depositor (the "Depositor"), and
________________, 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 ________________, 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.
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________________
________________
________________
________________
________________
________________
________________
________________
________________
________________
________________
Re: Residential Asset Mortgage Products, Inc.
Home Equity Loan-Backed Certificates, Series [ ]-[ ]
Dear Sirs:
(the "Transferee") intends
to acquire from (the "Transferor")
a % Percentage Interest of Home Equity Loan-Backed Certificates, Series
[ ]-[ ] (the "Certificates"), issued pursuant to a trust agreement dated
as of ________________ (the "Trust Agreement"), Residential Asset Mortgage
Products, Inc., as depositor (the "Depositor"), and ________________, 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 ________________, 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:
(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.