EXECUTION COPY
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RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
________________________________________
TRUST AGREEMENT
Dated as of November 29, 2006
________________________________________
GMACM HOME EQUITY LOAN TRUST 2006-HE5
GMACM Home Equity Loan-Backed Certificates,
Series 2006-HE5
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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......11
Section 3.07. Persons Deemed Certificateholders......................11
Section 3.08. Access to List of Certificateholders' Names and
Addresses..............................................11
Section 3.09. Maintenance of Office or Agency........................12
Section 3.10. Certificate Paying Agent...............................12
Section 3.11. Cooperation............................................14
Section 3.12. Intentionally Omitted..................................14
Section 3.13. Subordination..........................................14
Section 3.14. No Priority Among Certificates.........................14
ARTICLE IV Authority and Duties of Owner Trustee........................14
Section 4.01. General Authority......................................14
Section 4.02. General Duties.........................................14
Section 4.03. Action upon Instruction................................14
Section 4.04. No Duties Except as Specified under Specified
Documents or in Instructions...........................15
Section 4.05. Restrictions...........................................16
Section 4.06. Prior Notice to Certificateholders and the
Enhancer with Respect to Certain Matters...............16
Section 4.07. Action by Certificateholders with Respect to
Certain Matters........................................17
Section 4.08. Action by Certificateholders with Respect to
Bankruptcy.............................................17
Section 4.09. Restrictions on Certificateholders' Power..............17
Section 4.10. Majority Control.......................................17
Section 4.11. Doing Business in Other Jurisdictions..................17
ARTICLE V Application of Trust Funds...................................18
Section 5.01. Distributions..........................................18
Section 5.02. Method of Payment......................................19
Section 5.03. Signature on Returns...................................20
Section 5.04. Statements to Certificateholders.......................20
ARTICLE VI Concerning the Owner Trustee.................................20
Section 6.01. Acceptance of Trusts and Duties........................20
Section 6.02. Furnishing of Documents................................21
Section 6.03. Representations and Warranties.........................21
Section 6.04. Reliance; Advice of Counsel............................22
Section 6.05. Not Acting in Individual Capacity......................22
Section 6.06. Owner Trustee Not Liable for Certificates or
Related Documents......................................23
Section 6.07. Owner Trustee May Own Certificates and Notes...........23
ARTICLE VII Compensation of Owner Trustee................................23
Section 7.01. Owner Trustee's Fees and Expenses......................23
Section 7.02. Indemnification........................................23
ARTICLE VIII Termination of Trust Agreement...............................24
Section 8.01. Termination of Trust Agreement.........................24
Section 8.02. Additional Termination Requirements....................25
ARTICLE IX Successor Owner Trustees and Additional Owner Trustees.......26
Section 9.01. Eligibility Requirements for Owner Trustee.............26
Section 9.02. Replacement of Owner Trustee...........................26
Section 9.03. Successor Owner Trustee................................27
Section 9.04. Merger or Consolidation of Owner Trustee...............28
Section 9.05. Appointment of Co-Trustee or Separate Trustee..........28
ARTICLE X Compliance With Regulation AB................................30
Section 10.01. Intent of the Parties; Reasonableness..................30
Section 10.02. Additional Representations and Warranties of the
Owner Trustee..........................................30
Section 10.03. Information to Be Provided by the Owner Trustee........31
Section 10.04. Indemnification; Remedies..............................32
ARTICLE XI Miscellaneous................................................33
Section 11.01. Amendments.............................................33
Section 11.02. No Legal Title to Trust Estate.........................35
Section 11.03. Limitations on Rights of Others........................35
Section 11.04. Notices................................................35
Section 11.05. Severability...........................................36
Section 11.06. Separate Counterparts..................................36
Section 11.07. Successors and Assigns.................................36
Section 11.08. No Petition............................................36
Section 11.09. No Recourse............................................36
Section 11.10. Headings...............................................36
Section 11.11. GOVERNING LAW..........................................36
Section 11.12. Integration............................................37
Section 11.13. Rights of Enhancer to Exercise Rights of
Certificateholders.....................................37
This trust agreement, dated as of November 29, 2006 (as amended from
time to time, the "Trust Agreement"), is between Residential Asset Mortgage
Products, Inc., a Delaware corporation, as depositor (the "Depositor"), and
Wilmington Trust Company, a Delaware banking corporation, as owner trustee
(the "Owner Trustee").
WITNESSETH:
WHEREAS, the Depositor and the Owner Trustee desire to form a Delaware
statutory trust;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the Depositor and the Owner Trustee agree as follows:
ARTICLE I
Definitions
Section 1.01. Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in Appendix A to the indenture dated as of
November 29, 2006 (the "Indenture"), between GMACM Home Equity Loan Trust
2006-HE5, as Issuer, and The Bank of New York Trust Company, N.A., as
Indenture Trustee. All other capitalized terms used herein shall have the
meanings specified herein.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Trust Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Trust Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Trust Agreement or in any such certificate or other document,
and accounting terms partly defined in this Trust Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Trust Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Trust Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Trust Agreement shall refer to this Trust Agreement as a
whole and not to any particular provision of this Trust Agreement; Section
and Exhibit references contained in this Trust Agreement are references to
Sections and Exhibits in or to this Trust Agreement unless otherwise
specified; the term "including" shall mean "including without limitation";
"or" shall include "and/or"; and the term "proceeds" shall have the meaning
ascribed thereto in the UCC.
(d) The definitions contained in this Trust Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
ARTICLE II
Organization
Section 2.01. Name. The trust created hereby shall be known as "GMACM
Home Equity Loan Trust 2006-HE5," in which name the Owner Trustee may conduct
the business of the Trust, make and execute contracts and other instruments
on behalf of the Trust and ▇▇▇ and be sued.
Section 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the
Certificateholders, the Depositor, and the Enhancer.
Section 2.03. Purposes and Powers. The purpose of the Trust is to engage
in the following activities:
(i) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Trust Agreement and to sell the Notes and the Certificates;
(ii) to purchase the Mortgage Loans and to pay the organizational, start-up
and transactional expenses of the Trust;
(iii) to assign, grant, transfer, pledge and convey the Mortgage Loans
pursuant to the Indenture and to hold, manage and distribute to the
Certificateholders pursuant to Section 5.01 any portion of the Mortgage Loans
released from the Lien of, and remitted to the Trust pursuant to, the
Indenture;
(iv) to enter into and perform its obligations under the Basic Documents to
which it is to be a party;
(v) to engage in those activities, including entering into agreements, that
are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith, including, without limitation, to
accept additional contributions of equity that are not subject to the Lien of
the Indenture; and
(vi) subject to compliance with the Basic Documents, to engage in such other
activities as may be required in connection with conservation of the Trust
Estate and the making of distributions to the Securityholders.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Trust
Agreement or the other Basic Documents while any Note is outstanding without
the consent of the Certificateholders of Certificates evidencing a majority
of the aggregate Certificate Percentage Interest of each Class of
Certificates, the Indenture Trustee, the Enhancer and the Noteholders of
Notes representing a majority of the aggregate Voting Rights of the Notes.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Trust Estate. In
consideration of the delivery by the Owner Trustee, on behalf of the Trust,
of the Securities to the Depositor or its designee, upon the order of the
Depositor, the Depositor, as of the Closing Date and concurrently with the
execution and delivery hereof, does hereby transfer, assign, set over and
otherwise convey to the Trust, without recourse, but subject to the other
terms and provisions of this Trust Agreement, all of the right, title and
interest of the Depositor in and to the Trust Estate. The foregoing
transfer, assignment, set over and conveyance does not, and is not intended
to, result in a creation or an assumption by the Trust of any obligation of
the Depositor or any other Person in connection with the Trust Estate or
under any agreement or instrument relating thereto, except as specifically
set forth herein.
The Owner Trustee, on behalf of the Trust, acknowledges the conveyance
to the Trust by the Depositor, as of the Closing Date, of the Trust Estate,
including all right, title and interest of the Depositor in and to the Trust
Estate. Concurrently with such conveyance and in exchange therefor, the
Trust has pledged the Trust Estate to the Indenture Trustee and has executed
the Certificates and the Notes and caused them to be duly authenticated and
delivered.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it shall hold the Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust
constitute a statutory trust under the Statutory Trust Statute and that this
Trust Agreement constitute the governing instrument of such statutory trust.
Effective as of the date hereof, the Owner Trustee shall have all rights,
powers and duties set forth herein and in the Statutory Trust Statute with
respect to accomplishing the purposes of the Trust. It is the intention of
the parties hereto that, solely for federal, state and local income and
franchise tax purposes, the Trust shall be treated as an entity wholly owned
by the Depositor or an affiliate thereof, with the assets of the entity being
the Trust Estate. It is the further intention of the parties that an election
to be treated as a REMIC ("REMIC I") for federal income tax purposes be made
with respect to the Trust Estate, exclusive of the Pre-Funding Account and
the Capitalized Interest Account, each of which shall be treated as an
"outside reserve fund" for purposes of the REMIC Provisions and that a second
election to be treated as a REMIC be made with respect to the REMIC I Regular
Interests ("REMIC II"). The Issuer will provide for the administration of
the REMICs pursuant to Article XI of the Indenture. The provisions of this
Trust Agreement shall be interpreted to further such intentions. Neither the
Depositor nor any Certificateholder shall have any personal liability for any
liability or obligation of the Trust, other than the indemnification
obligation provided in Section 7.02 herein.
Section 2.07. Title to Trust Property. Legal title to the Trust Estate
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the
Trust Estate to be vested in a trustee or trustees, in which case title shall
be deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section 2.08. Situs of Trust. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee
on behalf of the Trust shall be located in the State of Delaware or the State
of Minnesota. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of
Delaware or taking actions outside the State of Delaware in order to comply
with Section 2.03. Payments will be received by the Trust only in Delaware
or Minnesota, and payments will be made by the Trust only from Delaware or
Minnesota. The only office of the Trust will be at the Corporate Trust
Office of the Owner Trustee in Delaware.
Section 2.09. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee and the
Enhancer that:
(a) The Depositor is duly organized and validly existing as a corporation
in good standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is at present conducted.
(b) The Depositor is duly qualified to do business as a foreign corporation
in good standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its property or the conduct
of its business shall require such qualifications and in which the failure to
so qualify would have a material adverse effect on the business, properties,
assets or condition (financial or otherwise) of the Depositor and the ability
of the Depositor to perform under this Trust Agreement.
(c) The Depositor has the power and authority to execute and deliver this
Trust Agreement and to carry out its terms; the Depositor has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Trust as part of the Trust and the Depositor has duly
authorized such sale and assignment and deposit to the Trust by all necessary
corporate action; and the execution, delivery and performance of this Trust
Agreement have been duly authorized by the Depositor by all necessary
corporate action.
(d) The consummation of the transactions contemplated by this Trust
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any material breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a material default
under, the articles of incorporation or bylaws of the Depositor, or any
material indenture, agreement or other instrument to which the Depositor is a
party or by which it is bound; nor result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor's knowledge,
any order, rule or regulation applicable to the Depositor of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or its
properties.
Section 2.10. Payment of Trust Fees. The Owner Trustee shall pay the
Trust's fees and expenses incurred with respect to the performance of the
Trust's duties under the Indenture.
ARTICLE III
Conveyance of the Mortgage Loans; Certificates
Section 3.01. Conveyance of the Mortgage Loans. The Depositor,
concurrently with the execution and delivery hereof, does hereby transfer,
convey and assign to the Trust, on behalf of the Securityholders and the
Enhancer, without recourse, all its right, title and interest in and to the
Initial Mortgage Loans, including but not limited to any rights of the
Depositor under the Purchase Agreement. The Depositor shall also provide the
Indenture Trustee with the Policy.
The parties hereto intend that, for non-tax purposes, the transaction
set forth herein be a sale by the Depositor to the Trust of all of its right,
title and interest in and to the Initial Mortgage Loans. In the event that,
for non-tax purposes, the transaction set forth herein is not deemed to be a
sale, the Depositor hereby grants to the Trust a security interest in all of
its right, title and interest in, to and under the Initial Mortgage Loans,
all distributions thereon and all proceeds thereof; and this Trust Agreement
shall constitute a security agreement under applicable law.
Section 3.02. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and the conveyance of
the Initial Mortgage Loans pursuant to Section 3.01 and the issuance of the
Certificates, GMACM shall be the sole Certificateholder of each Class of
Certificates.
Section 3.03. Issuance of Certificates. The Certificates of each Class
shall be issued in minimum denominations of a Percentage Interest of 10.0000%
and integral multiples of 0.0001% in excess thereof. The Class SB
Certificates shall be issued in substantially the form attached hereto as
Exhibit A. The Class R-I Certificates and the Class R-II Certificates shall
be issued in substantially the form attached hereto as Exhibits I-1 and I-2,
respectively.
The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Owner Trustee and
authenticated in the manner provided in Section 3.04. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be validly issued and entitled to the benefit of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates. A Person shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such Person's acceptance of a Certificate
duly registered in such Person's name, pursuant to Section 3.05.
A transferee of a Certificate shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a
Certificate duly registered in such transferee's name pursuant to and upon
satisfaction of the conditions set forth in Section 3.05.
Section 3.04. Authentication of Certificates. Concurrently with the
acquisition of the Initial Mortgage Loans by the Trust, the Owner Trustee or
the Certificate Paying Agent shall cause the Certificates in an initial
Percentage Interest of 100.00% to be executed on behalf of the Trust,
authenticated and delivered to or upon the written order of GMACM, signed by
its chairman of the board, its president or any vice president, without
further corporate action by GMACM, in authorized denominations. No
Certificate shall entitle the Certificateholder thereof to any benefit under
this Trust Agreement or be valid for any purpose unless there shall appear on
such Certificate a certificate of authentication substantially in the form
set forth in Exhibit A. Exhibit I-1 or Exhibit I-2 hereto, executed by the
Owner Trustee or the Certificate Paying Agent, by manual signature, and such
authentication shall constitute conclusive evidence that such Certificate has
been duly authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication.
Section 3.05. Registration of and Limitations on Transfer and Exchange of
Certificates. The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 3.09, a Certificate
Register in which, subject to such reasonable regulations as it may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided. The Indenture Trustee shall be the initial Certificate Registrar.
If the Certificate Registrar resigns or is removed, the Owner Trustee shall
appoint a successor Certificate Registrar.
Subject to satisfaction of the conditions set forth below, upon
surrender for registration of transfer of any Certificate at the office or
agency maintained pursuant to Section 3.09, the Owner Trustee shall execute,
authenticate and deliver (or shall cause the Certificate Registrar as its
authenticating agent to authenticate and deliver), in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating agent. At the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of authorized denominations of a like aggregate amount upon
surrender of the Certificates to be exchanged at the office or agency
maintained pursuant to Section 3.09.
Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the
Certificateholder or such Certificateholder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer or
exchange shall be cancelled and subsequently disposed of by the Certificate
Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Except as described below, each Certificateholder shall establish its
non-foreign status by submitting to the Certificate Paying Agent an IRS Form
W-9 and the Certificate of Non-Foreign Status (in substantially the form
attached hereto as Exhibit F).
A Certificate may be transferred to a Certificateholder unable to
establish its non-foreign status as described in the preceding paragraph only
if such Certificateholder provides an Opinion of Counsel to the Depositor,
the Certificate Registrar and the Enhancer, which Opinion of Counsel shall
not be an expense of the Trust, the Owner Trustee, the Certificate Registrar
or the Depositor, satisfactory to the Depositor and the Enhancer, that such
transfer (1) will not affect the tax status of the Owner Trust and (2) will
not adversely affect the interests of any Securityholder or the Enhancer,
including, without limitation, as a result of the imposition of any United
States federal withholding taxes on the Owner Trust (except to the extent
that such withholding taxes would be payable solely from amounts otherwise
distributable to the Certificate of the prospective transferee). If such
transfer occurs and such foreign Certificateholder becomes subject to such
United States federal withholding taxes, any such taxes will be withheld by
the Indenture Trustee at the direction of the Tax Matters Partner. Each
Certificateholder unable to establish its non-foreign status shall submit to
the Certificate Paying Agent a copy of its Form W-8-BEN or such successor
form as required by then-applicable regulations and shall resubmit such form
every three years or with such frequency as required by then-applicable
regulations.
No transfer, sale, pledge or other disposition of a Certificate shall
be made unless such transfer, sale, pledge or other disposition is exempt
from the registration requirements of the Securities Act and any applicable
state securities laws or is made in accordance with the Securities Act and
such state laws. In the event of any such transfer, the Certificate
Registrar or the Depositor shall prior to such transfer require the
transferee to execute (A) either (i) (a) an investment letter in
substantially the form attached hereto as Exhibit C (or in such form and
substance reasonably satisfactory to the Certificate Registrar and the
Depositor) which investment letters shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Servicer or the Depositor and
which investment letter states that, among other things, such transferee (a)
is a "qualified institutional buyer" as defined under Rule 144A, acting for
its own account or the accounts of other "qualified institutional buyers" as
defined under Rule 144A, and (b) is aware that the proposed transferor
intends to rely on the exemption from registration requirements under the
Securities Act, provided by Rule 144A or (ii) (a) a written Opinion of
Counsel acceptable to and in form and substance satisfactory to the
Certificate Registrar and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the Securities Act and such state laws or is being made
pursuant to the Securities Act and such state laws, which Opinion of Counsel
shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar, the Servicer or the Depositor and (b) the transferee executes a
representation letter, substantially in the form of Exhibit D hereto, and the
transferor executes a representation letter, substantially in the form of
Exhibit E hereto, each acceptable to and in form and substance satisfactory
to the Certificate Registrar and the Depositor certifying the facts
surrounding such transfer, which representation letters shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Servicer or the Depositor and (B) the Certificate of Non-Foreign Status (in
substantially the form attached hereto as Exhibit F) acceptable to and in
form and substance reasonably satisfactory to the Certificate Registrar and
the Depositor, which certificate shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar or the Depositor. If such
Certificateholder is unable to provide a Certificate of Non-Foreign Status,
such Certificateholder must provide an Opinion of Counsel as described in the
preceding paragraph. The Certificateholder desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the
Certificate Registrar, the Servicer, the Enhancer and the Depositor against
any liability that may result if the transfer is not so exempt or is not made
in accordance with such federal and state laws. No transfer of Certificates
or any interest therein shall be made to any Plan, any Person acting,
directly or indirectly, on behalf of any such Plan or any Person acquiring
such Certificates with Plan Assets unless the Depositor, the Owner Trustee,
the Certificate Registrar and the Servicer are provided with an Opinion of
Counsel that establishes to the satisfaction of the Depositor, the Owner
Trustee, the Certificate Registrar and the Servicer that the purchase of
Certificates is permissible under applicable law, will not constitute or
result in any prohibited transaction under ERISA or Section 4975 of the Code
and will not subject the Depositor, the Owner Trustee, the Certificate
Registrar or the Servicer to any obligation or liability (including
obligations or liabilities under ERISA or Section 4975 of the Code) in
addition to those undertaken in this Trust Agreement, which Opinion of
Counsel shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer. In lieu of such Opinion of Counsel, a
Plan, any Person acting, directly or indirectly, on behalf of any such Plan
or any Person acquiring such Certificates with Plan Assets of a Plan may
provide a certification in the form of Exhibit G to this Trust Agreement,
which the Depositor, the Owner Trustee, the Certificate Registrar and the
Servicer may rely upon without further inquiry or investigation. Neither an
Opinion of Counsel nor a certification will be required in connection with
the initial transfer of any such Certificate by the Depositor to an Affiliate
of the Depositor (in which case, the Depositor or any such Affiliate shall be
deemed to have represented that such Affiliate is not a Plan or a Person
investing Plan Assets of any Plan) and the Owner Trustee shall be entitled to
conclusively rely upon a representation (which, upon the request of the Owner
Trustee, shall be a written representation) from the Depositor of the status
of such transferee as an Affiliate of the Depositor.
In addition, with respect to each Class R Certificate:
(i) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and
to have irrevocably authorized the Certificate Paying Agent or its designee
under clause (iii)(A) below to deliver payments to a Person other than such
Person and to negotiate the terms of any mandatory sale under clause (iii)(B)
below and to execute all instruments of transfer and to do all other things
necessary in connection with any such sale. The rights of each Person
acquiring any Ownership Interest in a Class R Certificate are expressly
subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Class R Certificate shall be a Permitted Transferee and shall
promptly notify the Owner Trustee of any change or impending change in
its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of any
Class R Certificate until its receipt of, (I) an affidavit and
agreement (a "Transfer Affidavit and Agreement," in the form attached
hereto as Exhibit J-1) from the proposed Transferee, in form and
substance satisfactory to the Servicer, representing and warranting,
among other things, that it is a Permitted Transferee, that it is not
acquiring its Ownership Interest in the Class R Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent for any
Person who is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in a Class R Certificate, it will
endeavor to remain a Permitted Transferee, and that it has reviewed the
provisions of this Section 3.05 and agrees to be bound by them, and
(II) a certificate, in the form attached hereto as Exhibit J-2, from
the Certificateholder of a Class R Certificate wishing to transfer the
Class R Certificate, in form and substance satisfactory to the
Servicer, representing and warranting, among other things, that no
purpose of the proposed Transfer is to impede the assessment or
collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of the Certificate Registrar who is assigned to
this Agreement has actual knowledge that the proposed Transferee is not
a Permitted Transferee, no Transfer of an Ownership Interest in a
Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Class R Certificate shall agree (x) to require a Transfer Affidavit
and Agreement from any other Person to whom such Person attempts to
transfer its Ownership Interest in a Class R Certificate and (y) not to
transfer its Ownership Interest unless it provides a certificate to the
Certificate Registrar in the form attached hereto as Exhibit J-2.
(E) Each Person holding or acquiring an Ownership Interest in a
Class R Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Certificate Registrar written notice
that it is a "pass-through interest holder" within the meaning of
Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring an Ownership Interest in a Class R Certificate, if it
is, or is holding an Ownership Interest in a Class R Certificate on
behalf of, a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any
Class R Certificate only if it shall have received the Transfer Affidavit and
Agreement, a certificate of the Certificateholder of a Class R Certificate
requesting such transfer in the form attached hereto as Exhibit G-2 and all
of such other documents as shall have been reasonably required by the
Certificate Registrar as a condition to such registration. Transfers of the
Class R Certificates to Non-United States Persons and Disqualified
Organizations are prohibited.
(iii) (A) If any Disqualified Organization shall become a holder of a
Class R Certificate, then the last preceding Permitted Transferee shall
be restored, to the extent permitted by law, to all rights and
obligations as Certificateholder of a Class R Certificate thereof
retroactive to the date of registration of such Transfer of such
Class R Certificate. If a Non-United States Person shall become a
holder of a Class R Certificate, then the last preceding United States
Person shall be restored, to the extent permitted by law, to all rights
and obligations as Certificateholder of a Class R Certificate thereof
retroactive to the date of registration of such Transfer of such
Class R Certificate. If a transfer of a Class R Certificate is
disregarded pursuant to the provisions of Treasury Regulations Section
1.860E-1 or Section 1.860G-3, then the last preceding Permitted
Transferee shall be restored, to the extent permitted by law, to all
rights and obligations as Certificateholder of a Class R Certificate
thereof retroactive to the date of registration of such Transfer of
such Class R Certificate. The Certificate Registrar shall be under no
liability to any Person for any registration of Transfer of a Class R
Certificate that is in fact not permitted by this Section 3.05 or for
making any payments due on such Certificate to the holder thereof or
for taking any other action with respect to such holder under the
provisions of this Agreement.
(B) If any purported Transferee shall become a
Certificateholder of a Class R Certificate in violation of the
restrictions in this Section 3.05 and to the extent that the
retroactive restoration of the rights of the Certificateholder of such
Class R Certificate as described in clause (iii)(A) above shall be
invalid, illegal or unenforceable, then the Servicer shall have the
right, without notice to the holder or any prior holder of such Class R
Certificate, to sell such Class R Certificate to a purchaser selected
by the Servicer on such terms as the Servicer may choose. Such
purported Transferee shall promptly endorse and deliver each Class R
Certificate in accordance with the instructions of the Servicer. Such
purchaser may be the Servicer itself or any Affiliate of the Servicer.
The proceeds of such sale, net of the commissions (which may include
commissions payable to the Servicer or its Affiliates), expenses and
taxes due, if any, will be remitted by the Servicer to such purported
Transferee. The terms and conditions of any sale under this clause
(iii)(B) shall be determined in the sole discretion of the Servicer,
and the Servicer shall not be liable to any Person having an Ownership
Interest in a Class R Certificate as a result of its exercise of such
discretion.
(iv) The Certificate Paying Agent shall make available, upon written
request from the Internal Revenue Service and any potentially affected
Person, all information necessary to compute any tax imposed (A) as a result
of the Transfer of an Ownership Interest in a Class R Certificate to any
Person who is a Disqualified Organization, including the information
regarding "excess inclusions" of such Class R Certificates required to be
provided to the Internal Revenue Service and certain Persons as described in
Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a
result of any regulated investment company, real estate investment trust,
common trust fund, partnership, trust, estate or organization described in
Section 1381 of the Code that holds an Ownership Interest in a Class R
Certificate having as among its record holders at any time any Person who is
a Disqualified Organization. Reasonable compensation for providing such
information may be required by the REMIC Administrator before it will provide
such information to any such potentially affected Person.
(v) The provisions of this Section 3.05 set forth prior to this
clause (v) may be modified, added to or eliminated, provided that there shall
have been delivered to the Owner Trustee the following:
(A) written notification from each Rating Agency to the effect
that the modification, addition to or elimination of such provisions
will not cause such Rating Agency to downgrade its then-current
ratings, if any, of any Class of the Notes below the lower of the
then-current rating or the rating assigned to such Notes as of the
Closing Date by such Rating Agency without regard to the Policy; and
(B) subject to Section 10.01(f), an Officers' Certificate of the
Servicer stating that the Servicer has received an Opinion of Counsel, in
form and substance satisfactory to the Servicer, to the effect that such
modification, addition to or absence of such provisions will not cause any
portion of any of the REMICs to cease to qualify as a REMIC and will not
cause (x) any portion of any of the REMICs to be subject to an entity-level
tax caused by the Transfer of any Class R Certificate to a Person that is a
Disqualified Organization or (y) a Certificateholder or another Person to be
subject to a REMIC-related tax caused by the Transfer of a Class R
Certificate to a Person that is not a Permitted Transferee.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar,
or if the Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (b) there shall be
delivered to the Certificate Registrar and the Owner Trustee such security or
indemnity as may be required by them to save each of them and the Issuer from
harm, then in the absence of notice to the Certificate Registrar or the Owner
Trustee that such Certificate has been acquired by a bona fide purchaser, the
Owner Trustee on behalf of the Trust shall execute and the Owner Trustee or
the Certificate Paying Agent, as the Trust's authenticating agent, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of any new Certificate under
this Section 3.06, the Owner Trustee or the Certificate Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate
issued pursuant to this Section 3.06 shall constitute conclusive evidence of
ownership in the Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
Section 3.07. Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer, the Owner
Trustee, the Certificate Registrar or any Certificate Paying Agent may treat
the Person in whose name any Certificate is registered in the Certificate
Register as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 5.02 and for all other purposes whatsoever,
and none of the Trust, the Owner Trustee, the Certificate Registrar or any
Paying Agent shall be bound by any notice to the contrary.
Section 3.08. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish or cause to be furnished to the
Depositor or the Owner Trustee, within 15 days after receipt by the
Certificate Registrar of a written request therefor from the Depositor or the
Owner Trustee, a list, in such form as the Depositor or the Owner Trustee, as
the case may be, may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders, or one or more Certificateholders evidencing not less
than 25% of the Certificate Percentage Interest of any Class, apply in
writing to the Owner Trustee or the Certificate Registrar, and such
application states that the applicants desire to communicate with other
Certificateholders, with respect to their rights under this Agreement or
under the Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Owner
Trustee shall, within five (5) Business Days after the receipt of such
application, afford such applicants access during normal business hours to
the current list of Certificateholders. Each Certificateholder, by receiving
and holding a Certificate, shall be deemed to have agreed not to hold any of
the Trust, the Depositor, the Certificate Registrar or the Owner Trustee
accountable by reason of the disclosure of its name and address, regardless
of the source from which such information was derived.
Section 3.09. Maintenance of Office or Agency. The Owner Trustee, on
behalf of the Trust, shall maintain in The City of New York an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Certificates and the Basic Documents may
be served. The Owner Trustee initially designates the Corporate Trust Office
of the Indenture Trustee (or such other office as the Indenture Trustee may
specify to the Owner Trustee) as its office for such purposes. The Owner
Trustee shall give prompt written notice to the Depositor, the
Certificateholders and the Enhancer of any change in the location of the
Certificate Register or any such office or agency.
Section 3.10. Certificate Paying Agent.
(a) The Certificate Paying Agent shall make distributions to
Certificateholders from the Distribution Account on behalf of the Trust in
accordance with the provisions of the Certificates and Section 5.01 hereof
from payments remitted to the Certificate Paying Agent by the Indenture
Trustee pursuant to Section 3.05 of the Indenture. The Trust hereby appoints
the Indenture Trustee as Certificate Paying Agent. The Certificate Paying
Agent shall:
(i) hold all sums held by it for the payment of amounts due with respect to
the Certificates in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(ii) give the Owner Trustee notice of any default by the Trust of which it
has actual knowledge in the making of any payment required to be made with
respect to the Certificates;
(iii) at any time during the continuance of any such default, upon the
written request of the Owner Trustee, forthwith pay to the Owner Trustee on
behalf of the Trust all sums so held in trust by such Certificate Paying
Agent;
(iv) immediately resign as Certificate Paying Agent and forthwith pay to the
Owner Trustee on behalf of the Trust all sums held by it in trust for the
payment of Certificates if at any time it ceases to meet the standards
required to be met by the Certificate Paying Agent at the time of its
appointment;
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Certificates of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith; and
(vi) deliver to the Owner Trustee a copy of the report to Certificateholders
prepared with respect to each Payment Date by the Servicer pursuant to
Section 4.01 of the Servicing Agreement.
(b) The Trust may revoke such power and remove the Certificate Paying Agent
if the Owner Trustee determines in its sole discretion that the Certificate
Paying Agent shall have failed to perform its obligations under this Trust
Agreement in any material respect. The Indenture Trustee shall be permitted
to resign as Certificate Paying Agent upon 30 days' written notice to the
Owner Trustee and the Enhancer; provided the Indenture Trustee is also
resigning as Paying Agent under the Indenture at such time. In the event
that the Indenture Trustee shall no longer be the Certificate Paying Agent
under this Trust Agreement and Paying Agent under the Indenture, the Owner
Trustee shall appoint a successor to act as Certificate Paying Agent (which
shall be a bank or trust company) and which shall also be the successor
Paying Agent under the Indenture. The Owner Trustee shall cause such
successor Certificate Paying Agent or any additional Certificate Paying Agent
appointed by the Owner Trustee to execute and deliver to the Owner Trustee an
instrument to the effect set forth in this Section 3.10 as it relates to the
Certificate Paying Agent. The Certificate Paying Agent shall return all
unclaimed funds to the Trust and upon removal of a Certificate Paying Agent
such Certificate Paying Agent shall also return all funds in its possession
to the Trust. The provisions of Sections 6.01, 6.04 and 7.01 shall apply to
the Certificate Paying Agent to the extent applicable. Any reference in this
Trust Agreement to the Certificate Paying Agent shall include any co-paying
agent unless the context requires otherwise.
(c) The Certificate Paying Agent shall establish and maintain with itself
the Distribution Account in which the Certificate Paying Agent shall deposit,
on the same day as it is received from the Indenture Trustee, each remittance
received by the Certificate Paying Agent with respect to payments made
pursuant to the Indenture. Pending any such distribution, funds deposited in
the Distribution Account on a Payment Date and not distributed to the
Certificateholders on such Payment Date shall be invested by the Certificate
Paying Agent in Permitted Investments selected by the Servicer (or if no
selection is made by the Servicer in Permitted Investments described in
clause (v) of the definition thereof) maturing no later than the Business Day
preceding the next succeeding Payment Date (except that any investment in the
institution with which the Distribution Account is maintained may mature on
such Payment Date and shall not be sold or disposed of prior to the
maturity). All investment income earned in respect of funds on deposit in
the Distribution Account shall be credited to the Distribution Account. The
Certificate Paying Agent shall make all distributions on the Certificates as
provided in Section 3.05 of the Indenture and Section 5.01(a) of this Trust
Agreement from moneys on deposit in the Distribution Account.
Section 3.11. Cooperation. The Owner Trustee shall cooperate in all
respects with any reasonable request by the Enhancer for action to preserve
or enforce the Enhancer's rights or interest under this Trust Agreement or
the Insurance Agreement, consistent with this Trust Agreement and without
limiting the rights of the Certificateholders as otherwise expressly set
forth in this Trust Agreement.
Section 3.12. Intentionally Omitted.
Section 3.13. Subordination. Except as otherwise provided in the Basic
Documents, for so long as any Notes are outstanding or unpaid, the
Certificateholders will generally be subordinated in right of payment, under
the Certificates or otherwise, to payments to the Noteholders under, or
otherwise related to, the Indenture. If an Event of Default has occurred and
is continuing under the Indenture, the Certificates will be fully
subordinated to obligations owing by the Trust to the Noteholders and the
Enhancer under, or otherwise related to, the Indenture, and no distributions
will be made on the Certificates until the Noteholders and the Indenture
Trustee and the Enhancer have been irrevocably paid in full.
Section 3.14. No Priority Among Certificates. All Certificateholders
shall rank equally as to amounts distributable upon the liquidation,
dissolution or winding up of the Trust, with no preference or priority being
afforded to any Certificateholders over any other Certificateholders, except
that amounts distributable will be distributed first to the Class SB
Certificates, in an amount equal to the Class SB Distribution Amount, before
being distributed to any other Class of Certificates.
ARTICLE IV
Authority and Duties of Owner Trustee
Section 4.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to
or contemplated by the Basic Documents to which the Trust is to be a party,
as well as any certificate that supports the factual assumptions made in any
Opinion of Counsel delivered on the Closing Date, and any amendment or other
agreement or instrument described herein, in each case, in such form as the
Owner Trustee shall approve, as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner Trustee is
obligated to take all actions required of the Trust pursuant to the Basic
Documents.
Section 4.02. General Duties. The Owner Trustee shall be responsible to
administer the Trust pursuant to the terms of this Trust Agreement and the
other Basic Documents to which the Trust is a party and in the interest of
the Certificateholders, subject to the Basic Documents and in accordance with
the provisions of this Trust Agreement.
Section 4.03. Action upon Instruction.
(a) Subject to this Article IV and Section 11.13 of this Trust Agreement
and in accordance with the terms of the Basic Documents, the
Certificateholders may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by
written instruction of the Certificateholders pursuant to this Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be required
to take any action hereunder or under any Basic Document if the Owner Trustee
shall have reasonably determined, or shall have been advised by counsel, that
such action is likely to result in liability on the part of the Owner Trustee
or is contrary to the terms hereof or of any other Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Trust Agreement
or under any other Basic Document, or in the event that the Owner Trustee is
unsure as to the application of any provision of this Trust Agreement or any
other Basic Document or any such provision is ambiguous as to its
application, or is, or appears to be, in conflict with any other applicable
provision, or in the event that this Trust Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee shall promptly give notice (in
such form as shall be appropriate under the circumstances) to the
Certificateholders (with a copy to the Enhancer) requesting instruction as to
the course of action to be adopted, and to the extent the Owner Trustee acts
in good faith in accordance with any written instructions received from
Certificateholders of Certificates representing a majority of the aggregate
Certificate Percentage Interest of each Class of Certificates, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within 10 days
of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement or the other Basic Documents, as it
shall deem to be in the best interests of the Certificateholders, and the
Owner Trustee shall have no liability to any Person for such action or
inaction.
Section 4.04. No Duties Except as Specified under Specified Documents or
in Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee is a party, except as expressly provided
(i) in accordance with the powers granted to and the authority conferred upon
the Owner Trustee pursuant to this Trust Agreement, (ii) in accordance with
the Basic Documents and (iii) in accordance with any document or instruction
delivered to the Owner Trustee pursuant to Section 4.03; and no implied
duties or obligations shall be read into this Trust Agreement or any other
Basic Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to prepare or
file any filing with the Commission for the Trust or to record this Trust
Agreement or any other Basic Document. The Owner Trustee nevertheless agrees
that it will, at its own cost and expense, promptly take all action as may be
necessary to discharge any liens on any part of the Trust Estate that result
from actions by, or claims against, the Owner Trustee that are not related to
the ownership or the administration of the Trust Estate.
Section 4.05. Restrictions.
(a) The Owner Trustee shall not take any action (i) that is inconsistent
with the purposes of the Trust set forth in Section 2.03 or (ii) that, to the
actual knowledge of the Owner Trustee, would cause the Trust to be treated as
an association (or a publicly-traded partnership) taxable as a corporation or
a taxable mortgage pool for federal income tax purposes or would cause any of
the REMICs to fail to qualify as a REMIC or cause any of the REMICs to be
subject to tax at any time that any of the Notes or Certificates are
outstanding or any obligations are due and owing to the Enhancer under the
Insurance Agreement. The Certificateholders shall not direct the Owner
Trustee to take action that would violate the provisions of this Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the Trust's
properties or assets, including those included in the Trust Estate, to any
person unless (i) it shall have received an Opinion of Counsel to the effect
that such transaction will not have any material adverse tax consequence to
the Trust or any Certificateholder and (ii) such conveyance or transfer shall
not violate the provisions of Section 3.16(b) of the Indenture.
Section 4.06. Prior Notice to Certificateholders and the Enhancer with
Respect to Certain Matters. With respect to the following matters, the Owner
Trustee shall not take action unless, at least 30 days before the taking of
such action, the Owner Trustee shall have notified the Certificateholders and
the Enhancer in writing of the proposed action and the Enhancer, or if an
Enhancer Default has occurred and is continuing, the Certificateholders of
Certificates representing a majority of the aggregate Certificate Percentage
Interest shall not have notified the Owner Trustee in writing prior to the
30th day after such notice is given that the Enhancer or such
Certificateholders, as applicable, have withheld consent or provided
alternative direction:
(a) the initiation of any Proceeding by the Trust (except Proceedings
brought in connection with the collection of cash distributions due and owing
under the Mortgage Loans) and the compromise of any Proceeding brought by or
against the Trust (except with respect to the aforementioned Proceedings for
collection of cash distributions due and owing under the Mortgage Loans);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Statutory
Trust Statute);
(c) the amendment of any of the Basic Documents in circumstances where the
consent of any Noteholder is required;
(d) the amendment of any of the Basic Documents in circumstances where the
consent of any Noteholder is not required and such amendment materially and
adversely affects the interest of the Certificateholders;
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Trust
Agreement of a successor Certificate Registrar or Certificate Paying Agent or
the consent to the assignment by the Note Registrar, Paying Agent, Indenture
Trustee, Certificate Registrar or Certificate Paying Agent of its obligations
under the Indenture or this Trust Agreement, as applicable.
Section 4.07. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the written
direction of Certificateholders of Certificates evidencing not less than a
majority of the aggregate Certificate Percentage Interest of each Class of
Certificates, and with the consent of the Enhancer, to (a) remove the
Servicer under the Servicing Agreement pursuant to Section 7.01 thereof or
(b) except as expressly provided in the Basic Documents, sell the Mortgage
Loans after the termination of the Indenture.
Section 4.08. Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary Proceeding
in bankruptcy relating to the Trust without the unanimous prior approval of
all Certificateholders, and with the consent of the Enhancer, and the
delivery to the Owner Trustee by each such Certificateholder of a certificate
certifying that such Certificateholder reasonably believes that the Trust is
insolvent.
Section 4.09. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or to refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Trust Agreement or
any of the other Basic Documents or would be contrary to Section 2.03, nor
shall the Owner Trustee be obligated to follow any such direction, if given.
Section 4.10. Majority Control. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Trust Agreement
may be taken by the Certificateholders of Certificates evidencing not less
than a majority of the aggregate Certificate Percentage Interest of the Class
specified, if any. Except as expressly provided herein, any written notice
of the Certificateholders of a Class delivered pursuant to this Trust
Agreement shall be effective if signed by the Certificateholders of
Certificates evidencing not less than a majority of the aggregate Certificate
Percentage Interest of such Class at the time of the delivery of such notice.
Section 4.11. Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither Wilmington Trust Company
nor the Owner Trustee shall be required to take any action in any
jurisdiction other than in the State of Delaware if the taking of such action
will, even after the appointment of a co-trustee or separate trustee in
accordance with Section 9.05 hereof, (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration
with or the taking of any other action in respect of, any state or other
governmental authority or agency of any jurisdiction other than the State of
Delaware; (ii) result in any fee, tax or other governmental charge under the
laws of the State of Delaware becoming payable by Wilmington Trust Company,
or (iii) subject Wilmington Trust Company to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising
from acts unrelated to the consummation of the transactions by Wilmington
Trust Company or the Owner Trustee, as the case may be, contemplated hereby.
ARTICLE V
Application of Trust Funds
Section 5.01. Distributions.
(a) (a) On each Payment Date occurring in the months of March, June,
September and December, on any date on which the Trust is terminated pursuant
to Section 8.01, and on each other Payment Date for which the Certificate
Paying Agent has received written notice from the Certificateholders by the
Determination Date relating to such Payment Date requesting funds on deposit
in the Distribution Account to be distributed, the Certificate Paying Agent
shall distribute to the Certificateholders all funds on deposit in the
Distribution Account and available therefor as provided in Section 3.05 of
the Indenture. Such amounts shall be distributed, first, to the
Certificateholders of the Class SB Certificates, in an amount equal to the
Class SB Distribution Amount for such Payment Date and the Class SB
Distribution Amount for any previous Payment Date to the extent not
previously paid, and second, to the Certificateholders of the Class R
Certificates, any amounts remaining. All distributions made pursuant to this
Section to any Class of Certificates shall be distributed to the
Certificateholders of such Class pro rata based on the respective Percentage
Interests thereof.
(b) In the event that any withholding tax is imposed on the distributions
(or allocations of income) to a Certificateholder, such tax shall reduce the
amount otherwise distributable to such Certificateholder in accordance with
this Section 5.01. The Certificate Paying Agent is hereby authorized and
directed to retain or cause to be retained from amounts otherwise
distributable to the Certificateholders sufficient funds for the payment of
any tax that is legally owed by the Trust (but such authorization shall not
prevent the Owner Trustee from contesting any such tax in appropriate
Proceedings, and withholding payment of such tax, if permitted by law,
pending the outcome of such Proceedings). The amount of any withholding tax
imposed with respect to a Certificateholder shall be treated as cash
distributed to such Certificateholder at the time it is withheld by the
Certificate Paying Agent and remitted to the appropriate taxing authority.
If there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the
Certificate Paying Agent may in its sole discretion withhold such amounts in
accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the
creditors of the Trust, including the Noteholders
(d) Allocations of profits, income and losses, as determined for
federal income tax purposes, shall be made among the Classes of Certificates
in accordance with the REMIC Provisions and within each Class of Certificates
to the Certificateholders on a pro rata basis based on the Certificate
Percentage Interests thereof.
(e) On each Payment Date, the following amounts in the following order of
priority, from the amounts allocable to the Noteholders and
Certificateholders pursuant to Section 3.05 of the Indenture, shall be deemed
to have been distributed by REMIC I to REMIC II on account of the REMIC I
Regular Interests or shall be withdrawn from the Distribution Account and
distributed to the holders of the Class R-I Certificates, as the case may be:
(i) first, to the Holders of the REMIC I Regular Interests, in
an amount equal to (A) the Uncertificated Accrued Interest for such
Payment Date, plus (B) any amounts in respect thereof remaining unpaid
from previous Payment Dates; and
(ii) second, to the Holders of the REMIC I Regular Interests, in
an amount equal to the remainder of the Collections for such Payment
Date after the distributions made pursuant to clause (i) above,
allocated in the following order of priority:
(A) to the Holders of REMIC I Regular Interests LT2, LT3
and LT4, the LT2 Principal Distribution Amount, LT3 Principal
Distribution Amount and LT4 Principal Distribution Amount,
respectively;
(B) to the Holders of REMIC I Regular Interest LT1, until
the Uncertificated Principal Balance of REMIC I Regular Interest
LT1 is reduced to zero;
(C) to the Holders of REMIC I Regular Interests LT2, LT3
and LT4, pro rata according to their respective Uncertificated
Principal Balance as reduced by the distributions deemed made
pursuant to clause (A) above, until the Uncertificated Principal
Balance of each such REMIC I Regular Interest is reduced to zero;
and
(iii) any remaining amount to the Holders of the Class R-I
Certificates.
(f) On each Payment Date, the amounts allocable to the Noteholders and
Certificateholders pursuant to Section 3.05 of the Indenture and deemed to
have been distributed to REMIC I from REMIC II pursuant to paragraph (e),
shall be deemed to have been distributed by REMIC II to the holders of the
REMIC II Regular Interests on account of the REMIC I Regular Interests or
shall be withdrawn from the Distribution Account and distributed to the
holders of the Class R-II Certificates, as the case may be in accord with the
provisions relating thereto in Section 3.05 of the Indenture and in this
Trust Agreement.
(g) Payments from the Hedge Agreement to the Holders of the Notes, will be
from the Holder of the Class SB Certificates which is entitled to amounts
received under the Hedge Agreement. The rights of the Holder of the Class SB
Certificates to payments from the Hedge Agreements shall be outside and apart
from its rights under the REMIC II Regular Interest SB IO and REMIC II
Regular Interest SB PO, which will not be a part of their ownership of the
REMIC II Regular Interests.
Section 5.02. Method of Payment. Subject to Section 8.01(c),
distributions required to be made to Certificateholders on any Payment Date
as provided in Section 5.01 shall be made to each Certificateholder of record
on the preceding Record Date by wire transfer, in immediately available
funds, to the account of each Certificateholder at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided to the Certificate Registrar appropriate written instructions at
least five Business Days prior to such Payment Date or, if not, by check or
money order mailed to such Certificateholder at the address of such
Certificateholder appearing in the Certificate Register.
Section 5.03. Signature on Returns. The REMIC Administrator, as agent
for the Owner Trustee, shall sign on behalf of the Trust the tax returns of
the REMICs. The Owner Trustee shall give the REMIC Administrator all such
powers of attorney as are needed to enable the REMICs Administrator to
prepare and sign such tax returns. In the event that approval from the
applicable District Director of the Internal Revenue Service for the REMIC
Administrator to sign the tax returns is not forthcoming following
application, the REMIC Administrator shall prepare and the Owner Trustee
shall sign the tax returns for the REMICs.
Section 5.04. Statements to Certificateholders. On each Payment Date,
the Certificate Paying Agent shall make available to each Certificateholder
the statement or statements provided to the Owner Trustee and the Certificate
Paying Agent by the Servicer pursuant to Section 4.01 of the Servicing
Agreement with respect to such Payment Date.
ARTICLE VI
Concerning the Owner Trustee
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts, but only upon the terms of this Trust Agreement. The
Owner Trustee and the Certificate Paying Agent also agree to disburse all
moneys actually received by it constituting part of the Trust Estate upon the
terms of this Trust Agreement and the other Basic Documents. The Owner
Trustee shall not be answerable or accountable hereunder or under any Basic
Document under any circumstances, except (i) for its own willful misconduct,
negligence or bad faith or negligent failure to act or (ii) in the case of
the inaccuracy of any representation or warranty contained in Section 6.03
expressly made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) no provision of this Trust Agreement or any other Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights, duties or powers
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to it;
(b) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(c) the Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Trust Agreement or for the due execution
hereof by the Depositor for the form, character, genuineness, sufficiency,
value or validity of any of the Trust Estate, or for or in respect of the
validity or sufficiency of the Basic Documents, the Notes, the Certificates,
other than the certificate of authentication on the Certificates, if executed
by the Owner Trustee and the Owner Trustee shall in no event assume or incur
any liability, duty, or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein or in the
other Basic Documents;
(d) the execution, delivery, authentication and performance by the Owner
Trustee of this Trust Agreement will not require the authorization, consent
or approval of, the giving of notice to, the filing or registration with, or
the taking of any other action with respect to, any governmental authority or
agency;
(e) the Owner Trustee shall not be liable for the default or misconduct of
the Depositor, Indenture Trustee or the Servicer under any of the Basic
Documents or otherwise and the Owner Trustee shall have no obligation or
liability to perform the obligations of the Trust under this Trust Agreement
or the other Basic Documents that are required to be performed by the
Indenture Trustee under the Indenture or the Sellers under the Purchase
Agreement; and
(f) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it or duties imposed by this Trust Agreement, or
to institute, conduct or defend any litigation under this Trust Agreement or
otherwise or in relation to this Trust Agreement or any other Basic Document,
at the request, order or direction of any of the Certificateholders, unless
such Certificateholders have offered to the Owner Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Owner Trustee therein or thereby. Notwithstanding the
foregoing, the Enhancer may direct any litigation under this Trust
Agreement. The right of the Owner Trustee to perform any discretionary act
enumerated in this Trust Agreement or in any other Basic Document shall not
be construed as a duty, and the Owner Trustee shall not be answerable for
other than its negligence, bad faith or willful misconduct in the performance
of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish
to the Securityholders promptly upon receipt of a written reasonable request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Trust under the Basic Documents.
Section 6.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in good
standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Trust Agreement;
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Trust Agreement, and this Trust Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order binding
on it, or constitute any default under its charter documents or bylaws or any
indenture, mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound;
(d) This Trust Agreement, assuming due authorization, execution and
delivery by the Owner Trustee and the Depositor, constitutes a valid, legal
and binding obligation of the Owner Trustee, enforceable against it in
accordance with the terms hereof subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general principles of
equity, regardless of whether such enforcement is considered in a proceeding
in equity or at law;
(e) The Owner Trustee is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Owner Trustee or its properties or might have consequences
that would materially adversely affect its performance hereunder; and
(f) No litigation is pending or, to the best of the Owner Trustee's
knowledge, threatened against the Owner Trustee which would prohibit its
entering into this Trust Agreement or performing its obligations under this
Trust Agreement.
Section 6.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it
to be genuine and believed by it to be signed by the proper party or parties.
The Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of
determination of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other authorized
officers of the relevant party, as to such fact or matter and such
certificate shall constitute full protection to the Owner Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in the
performance of its duties and obligations under this Trust Agreement or the
other Basic Documents, the Owner Trustee (i) may act directly or through its
agents, attorneys, custodians or nominees (including persons acting under a
power of attorney) pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents, attorneys, custodians or nominees (including persons acting under a
power of attorney) if such persons have been selected by the Owner Trustee
with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it
at the expense of the Trust. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
opinion or advice of any such counsel, accountants or other such Persons and
not contrary to this Trust Agreement or any other Basic Document.
Section 6.05. Not Acting in Individual Capacity. Except as provided in
this Article VI, in accepting the trusts hereby created Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by
reason of the transactions contemplated by this Trust Agreement or any other
Basic Document shall look only to the Trust Estate for payment or
satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates or Related
Documents. The recitals contained herein and in the Certificates (other than
the signatures of the Owner Trustee on the Certificates) shall be taken as
the statements of the Depositor, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Trust Agreement, of
any other Basic Document or of the Certificates (other than the signatures of
the Owner Trustee on the Certificates) or the Notes, or of any Related
Documents. The Owner Trustee shall at no time have any responsibility or
liability with respect to the sufficiency of the Trust Estate or its ability
to generate the payments to be distributed to Certificateholders under this
Trust Agreement or the Noteholders under the Indenture, including, the
compliance by the Depositor or the Sellers with any warranty or
representation made under any Basic Document or in any related document or
the accuracy of any such warranty or representation, or any action of the
Certificate Paying Agent, the Certificate Registrar or the Indenture Trustee
taken in the name of the Owner Trustee.
Section 6.07. Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates or Notes and may deal with the Depositor, the
Sellers, the Certificate Paying Agent, the Certificate Registrar and the
Indenture Trustee in transactions with the same rights as it would have if it
were not Owner Trustee.
ARTICLE VII
Compensation of Owner Trustee
Section 7.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof in accordance with Section 6.06
of the Servicing Agreement, and the Owner Trustee shall be reimbursed for its
reasonable expenses hereunder and under the other Basic Documents, including
the reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may reasonably
employ in connection with the exercise and performance of its rights and its
duties hereunder and under the other Basic Documents which shall be payable
by the Servicer pursuant to Section 3.09 of the Servicing Agreement.
Section 7.02. Indemnification. The Certificateholder of the majority of
the Percentage Interest of the Certificates shall indemnify, defend and hold
harmless the Owner Trustee and its successors, assigns, agents and servants
(collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by,
or asserted against the Owner Trustee or any Indemnified Party in any way
relating to or arising out of this Trust Agreement, the other Basic
Documents, the Trust Estate, the administration of the Trust Estate or the
action or inaction of the Owner Trustee hereunder; provided, that:
(a) the Certificateholder of the majority of the Percentage Interest of the
Class SB Certificates shall not be liable for or required to indemnify an
Indemnified Party from and against Expenses arising or resulting from the
Owner Trustee's willful misconduct, negligence or bad faith or as a result of
any inaccuracy of a representation or warranty contained in Section 6.03
expressly made by the Owner Trustee;
(b) with respect to any such claim, the Indemnified Party shall have given
the Certificateholder of the majority of the Percentage Interest of the Class
SB Certificates written notice thereof promptly after the Indemnified Party
shall have actual knowledge thereof;
(c) (c) while maintaining control over its own defense, the
Certificateholder of the majority of the Percentage Interest of the Class SB
Certificates shall consult with the Indemnified Party in preparing such
defense; and
(d) while maintaining control over its own defense, the Certificateholder
of the majority of the Percentage Interest of the Class SB Certificates shall
consult with the Indemnified Party in preparing such defense.
The indemnities contained in this Section shall survive the resignation
or termination of the Owner Trustee or the termination of this Trust
Agreement. In the event of any Proceeding for which indemnity may be sought
pursuant to this Section 7.02, the Owner Trustee's choice of legal counsel,
if other than the legal counsel retained by the Owner Trustee in connection
with the execution and delivery of this Trust Agreement, shall be subject to
the approval of the Certificateholder of the majority of the Percentage
Interest of the Class SB Certificates, which approval shall not be
unreasonably withheld. In addition, upon written notice to the Owner Trustee
and with the consent of the Owner Trustee, which consent shall not be
unreasonably withheld, the Certificateholder of the majority of the
Percentage Interest of the Class SB Certificates shall have the right to
assume the defense of any Proceeding against the Owner Trustee.
ARTICLE VIII
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement.
(a) This Trust Agreement (other than this Article VIII) and the Trust shall
terminate and be of no further force or effect upon the final distribution of
all moneys or other property or proceeds of the Trust Estate in accordance
with the terms of the Indenture and this Trust Agreement. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder shall
not (i) operate to terminate this Trust Agreement or the Trust, (ii) entitle
such Certificateholder's legal representatives or heirs to claim an
accounting or to take any Proceeding in any court for a partition or winding
up of all or any part of the Trust or the Trust Estate or (iii) otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date on
which Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution thereon and
cancellation thereof, shall be given by the Certificate Paying Agent by
letter to the Certificateholders and the Enhancer mailed within five Business
Days of receipt of notice of such termination from the Owner Trustee, stating
(i) the Payment Date upon or with respect to which final payment of the
Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Certificate Paying Agent therein
designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the Certificates
at the office of the Certificate Paying Agent therein specified. The
Certificate Paying Agent shall give such notice to the Owner Trustee and the
Certificate Registrar at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Certificate Paying Agent shall cause to be distributed to Certificateholders
amounts distributable on such Payment Date pursuant to Section 5.01.
In the event that all of the Certificateholders shall not have
surrendered their Certificates for cancellation within six months after the
date specified in the above mentioned written notice, the Certificate Paying
Agent shall give a second written notice to the remaining Certificateholders
to surrender their Certificates for cancellation and receive the final
distribution with respect thereto. Subject to applicable laws with respect
to escheat of funds, if within one year following the Payment Date on which
final payment of the Certificates was to have been made pursuant to Section
3.10, all the Certificates shall not have been surrendered for cancellation,
the Certificate Paying Agent may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be
paid out of the funds and other assets that shall remain subject to this
Trust Agreement. Any funds remaining in the Distribution Account after
exhaustion of such remedies shall be distributed by the Certificate Paying
Agent to the Certificateholder of the majority of the Percentage Interest of
the Certificates of the Class with respect to which such amounts are due.
(d) Upon the winding up of the Trust and its termination, the Owner Trustee
shall cause the Certificate of Trust to be cancelled by filing a certificate
of cancellation with the Secretary of State in accordance with the provisions
of Section 3810(c) of the Statutory Trust Statute.
Section 8.02. Additional Termination Requirements.
(a) Each REMIC shall be terminated in accordance with the following
additional requirements including upon the exercise by the Servicer of an
optional redemption of the Notes pursuant to Section 8.08 of the Servicing
Agreement, unless the Owner Trustee, the REMIC Administrator and the Servicer
have received an Opinion of Counsel (which Opinion of Counsel shall not be an
expense of the Owner Trustee) to the effect that the failure of the REMIC to
comply with the requirements of this Section 8.02 will not (i) result in the
imposition on the Trust Estate of taxes on "prohibited transactions," as
described in Section 860F of the Code, or (ii) cause any of the REMICs to
fail to qualify as a REMIC at any time that any Certificate is outstanding:
(i) The Servicer shall establish a 90-day liquidation period for such REMIC
and specify the first day of such period in a statement, which the
Indenture Trustee shall attach to the Trust Estate's final Tax Return
pursuant to Treasury regulations Section 1.860F-1. The Servicer also
shall satisfy all of the requirements of a qualified liquidation for a
REMIC under Section 860F of the Code and regulations thereunder;
(ii) The Servicer shall notify the Owner Trustee and the Indenture Trustee
at the commencement of such 90-day liquidation period and, at or prior
to the time of making of the final payment on the Certificates, the
Owner Trustee shall sell or otherwise dispose of all of the remaining
assets of the Trust Estate in accordance with the terms hereof; and
(iii) If the Servicer is exercising its right to purchase the assets of the
Trust Estate, the Servicer shall, during the 90-day liquidation period
and at or prior to the Final Payment Date, purchase all of the assets
of the Trust Estate for cash.
(b) Each Holder of a Security and the Owner Trustee hereby irrevocably
approves and appoints the Servicer as its attorney-in-fact to adopt a plan of
complete liquidation for the REMIC at the expense of the Trust Estate in
accordance with the terms and conditions of this Agreement.
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation satisfying the provisions of
Section 3807(a) of the Statutory Trust Statute; authorized to exercise
corporate trust powers; having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and having (or having a parent that has) long-term debt
obligations with a rating of at least A by Moody's or Standard & Poor's. If
such corporation shall publish reports of condition at least annually
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Owner Trustee shall cease to be eligible
in accordance with the provisions of this Section 9.01, the Owner Trustee
shall resign immediately in the manner and with the effect specified in
Section 9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at any
time resign and be discharged from the trusts hereby created by giving 30
days' prior written notice thereof to the Enhancer, the Indenture Trustee and
the Depositor. Upon receiving such notice of resignation, the Indenture
Trustee shall promptly appoint a successor Owner Trustee with the consent of
the Enhancer, which consent shall not be unreasonably withheld, by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the resigning Owner Trustee and one copy to the successor Owner Trustee. If
no successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation,
the resigning Owner Trustee may petition any court of competent jurisdiction
for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.01 and shall fail to resign after
written request therefor by the Indenture Trustee, or if at any time the
Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt
or insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Indenture Trustee may, and, at the
direction of the Enhancer, shall, remove the Owner Trustee. If the Indenture
Trustee shall remove the Owner Trustee under the authority of the immediately
preceding sentence, the Indenture Trustee shall promptly appoint a successor
Owner Trustee acceptable to the Enhancer by written instrument, in duplicate,
one copy of which instrument shall be delivered to the outgoing Owner Trustee
so removed and one copy to the successor Owner Trustee, and shall pay all
fees owed to the outgoing Owner Trustee. If the Indenture Trustee is unable
to appoint a successor Owner Trustee within 60 days after any such direction,
the Indenture Trustee may petition any court of competent jurisdiction for
the appointment of a successor Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 9.03 and payment of all fees and expenses
owed to the outgoing Owner Trustee.
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to
the Indenture Trustee and to its predecessor Owner Trustee an instrument
accepting such appointment under this Trust Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become
effective, and such successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Trust Agreement, with like effect
as if originally named as Owner Trustee. The predecessor Owner Trustee shall
upon payment of its fees and expenses deliver to the successor Owner Trustee
all documents and statements and monies held by it under this Trust
Agreement; and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully
and certainly vesting and confirming in the successor Owner Trustee all such
rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, the Indenture Trustee shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies and the Enhancer. If the Indenture Trustee shall fail to mail such
notice within 10 days after acceptance of such appointment by the successor
Owner Trustee, the successor Owner Trustee shall cause such notice to be
mailed at the expense of the Indenture Trustee.
Section 9.04. Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Trust Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Owner
Trustee shall have the power and shall execute and deliver all instruments to
appoint one or more Persons to act as co-trustee, jointly with the Owner
Trustee, or as separate trustee or trustees, of all or any part of the Trust
Estate, and to vest in such Person, in such capacity, such title to the Trust
or any part thereof and, subject to the other provisions of this Section,
such powers, duties, obligations, rights and trusts as the Owner Trustee may
consider necessary or desirable. No co-trustee or separate trustee under
this Trust Agreement shall be required to meet the terms of eligibility as a
successor Owner Trustee pursuant to Section 9.01 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant
to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed upon
the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Estate or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(b) No trustee under this Trust Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Trust
Agreement; and
(c) The Owner Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Trust
Agreement and the conditions of this Article IX. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Trust Agreement, specifically including
every provision of this Trust Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Owner Trustee. Each such
instrument shall be filed with the Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Trust Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed,
all of its estates, properties, rights, remedies and trusts shall vest in and
be exercised by the Owner Trustee, to the extent permitted by law, without
the appointment of a new or successor co-trustee or separate trustee.
ARTICLE X
Compliance With Regulation AB
Section 10.01. Intent of the Parties; Reasonableness.
The Depositor and the Owner Trustee acknowledge and agree that the
purpose of this Article X is to facilitate compliance by the Depositor with
the provisions of Regulation AB and related rules and regulations of the
Commission. The Depositor shall not exercise its right to request delivery
of information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission under the
Securities Act and the Exchange Act. The Owner Trustee acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the mortgage-backed securities markets,
advice of counsel, or otherwise, and agrees to comply with reasonable
requests made by the Depositor in good faith for delivery of information
under these provisions on the basis of evolving interpretations of Regulation
AB. The Owner Trustee shall cooperate in good faith with any reasonable
request by the Depositor for information regarding the Owner Trustee that is
necessary or required, in the reasonable, good faith determination of the
Depositor, to permit the Depositor to comply with the provisions of
Regulation AB.
Section 10.02. Additional Representations and Warranties of the Owner
Trustee.
(a) The Owner Trustee shall be deemed to represent and warrant to the
Depositor as of the date hereof and on each date on which information is
provided to the Depositor under Sections 10.01, 10.02(b) or 10.03 that,
except as disclosed in writing to the Depositor prior to such date: (i) it
is not aware and has not received notice that any default, early amortization
or other performance triggering event has occurred as to any other
Securitization Transaction due to any default of the Owner Trustee;
(ii) there are no aspects of its financial condition that could have a
material adverse effect on the performance by it of its trustee obligations
under the Trust Agreement or any other Securitization Transaction as to which
it is the trustee; (iii) there are no material legal or governmental
proceedings pending (or known to be contemplated) against it that would be
material to Noteholders; (iv) there are no relationships or transactions (as
described in Item 1119(b) of Regulation AB) relating to the Owner Trustee
with respect to the Depositor or any sponsor, issuing entity, servicer,
trustee, originator, significant obligor, enhancement or support provider or
other material transaction party (as each of such terms are used in
Regulation AB) relating to the Securitization Transaction contemplated by the
Trust Agreement, as identified by the Depositor to the Owner Trustee in
writing as of the Closing Date (each, a "Transaction Party") that are outside
the ordinary course of business or on terms other than would be obtained in
an arm's length transaction with an unrelated third party, apart from the
Securitization Transaction, and that are material to the investors'
understanding of the Certificates; and (v) the Owner Trustee is not an
affiliate (as contemplated by Item 1119(a) of Regulation AB) of any
Transaction Party. The Depositor shall notify the Owner Trustee of any
change in the identity of a Transaction Party after the Closing Date at least
five (5) Business Days prior to January 31 of each calendar year.
(b) If so requested by the Depositor on any date following the
Closing Date, the Owner Trustee shall, within five Business Days following
such request, confirm in writing the accuracy of the representations and
warranties set forth in paragraph (a) of this Section or, if any such
representation and warranty is not accurate as of the date of such
confirmation, provide the pertinent facts, in writing, to the Depositor. Any
such request from the Depositor shall not be given more than once each
calendar quarter, unless the Depositor shall have a reasonable basis for
questioning the accuracy of any of the representations and warranties.
Section 10.03. Information to Be Provided by the Owner Trustee.
(a) For so long as the Notes are outstanding, for the purpose of satisfying
the Depositor's reporting obligation under the Exchange Act with respect to
any class of Notes, the Owner Trustee shall provide to the Depositor a
written description of (i) the commencement of, a material development in or,
if applicable, the termination of, any and all legal proceedings against the
Owner Trustee or any and all proceedings of which any property of the Owner
Trustee is the subject, that would be material to Noteholders; and (ii) any
such proceedings known to be contemplated by governmental authorities that
would be material to Noteholders. the Owner Trustee shall also notify the
Depositor, in writing, as promptly as practicable following notice to or
discovery by a Responsible Officer of the Owner Trustee of any material
changes to proceedings described in the preceding sentence. In addition, the
Owner Trustee will furnish to the Depositor, in writing, the necessary
disclosure regarding the Owner Trustee describing such proceedings required
to be disclosed under Item 1117 of Regulation AB, for inclusion in reports
filed by or on behalf of the Depositor pursuant to the Exchange Act. The
Depositor will allow the Owner Trustee to review any disclosure relating to
material litigation against the Owner Trustee prior to filing such disclosure
with the Commission to the extent the Depositor changes the information
provided by the Owner Trustee. Any descriptions required with respect to
legal proceedings, as well as updates to previously provided descriptions,
under this Section 10.03(a) shall be given no later than five Business Days
prior to the Determination Date following the month in which the relevant
event occurs.
(b) For so long as the Notes are outstanding, for the purpose of satisfying
the Depositor's reporting obligation under the Exchange Act with respect to
any class of Notes, the Owner Trustee shall, no later than January 31 of each
calendar year, (i) provide to the Depositor such information regarding the
Owner Trustee as is required for the purpose of compliance with Item 1119 of
Regulation AB; provided, however, the Owner Trustee shall not be required to
provide such information in the event that there has been no change to the
information previously provided by the Owner Trustee to the Depositor; and
(ii) as promptly as practicable following notice to or discovery by a
Responsible Officer of the Owner Trustee of any changes to such information,
provide to the Depositor, in writing, such updated information. Such
information shall include, at a minimum, a description of any affiliation
between the Owner Trustee and any of the following parties to the
Securitization Transaction contemplated by the Trust Agreement, as such
parties and their affiliates are identified to the Owner Trustee by the
Depositor in connection with the closing of each Securitization Transaction
or, if there has been a change in any such party, as such party is identified
by the Depositor in a written notice to the Owner Trustee at least five (5)
Business Days prior to January 31 of each calendar year:
(1) the sponsor;
(2) any depositor;
(3) the issuing entity;
(4) any servicer;
(5) any other trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material party related to any Securitization
Transaction.
In addition, the Owner Trustee shall provide a description of whether
there is, and if so the general character of, any business relationship,
agreement, arrangement, transaction or understanding between the Owner
Trustee and any above-listed party that is entered into outside the ordinary
course of business or is on terms other than would be obtained in an arm's
length transaction with an unrelated third party, apart from the
Securitization Transaction contemplated by the Trust Agreement, that
currently exists or that existed during the past two years and that is
material to an investor's understanding of the Notes.
(c) As of the related Payment Date with respect to each Report on Form 10-D
with respect to the Notes filed by or on behalf of the Depositor, and as of
March 15 preceding the date each Report on Form 10-K with respect to the
Notes is filed, the Owner Trustee shall be deemed to represent and warrant
that any information previously provided by the Owner Trustee under this
Article X is materially correct and does not have any material omissions
unless the Owner Trustee has provided an update to such information.
Section 10.04. Indemnification; Remedies.
(a) The Owner Trustee shall indemnify the Depositor, each affiliate of the
Depositor, GMACM and each affiliate of GMACM, and the respective present and
former directors, officers, employees and agents of each of the foregoing,
and shall hold each of them harmless from and against any claims, losses,
liabilities (including penalties), actions, suits, judgments, demands,
damages, costs and expenses (including reasonable fees and expenses of
attorneys or, as necessary, consultants and auditors and reasonable costs of
investigations) that any of them may sustain arising out of or based upon:
(i)(A) any untrue statement of a material fact
contained or alleged to be contained in any information, report,
certification or other material provided under Sections 10.01, 10.02 or 10.03
of this Article X by or on behalf of the Owner Trustee (collectively, the
"Owner Trustee Information"), or (B) the omission or alleged omission to
state in Owner Trustee Information a material fact required to be stated in
Owner Trustee Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; or
(ii) any failure by the Owner Trustee to deliver any
information, report, certification or other material when and as required
under Sections 10.02 and 10.03.
(b) In the case of any failure of performance described in clause (ii) of
Section 10.04(a), the Owner Trustee shall (i) promptly reimburse the
Depositor for all costs reasonably incurred by the Depositor in order to
obtain the information, report, certification or other material not delivered
by the Owner Trustee as required and (ii) cooperate with the Depositor to
mitigate any damages that may result from such failure.
(c) The Depositor and GMACM shall indemnify the Owner Trustee, each
affiliate of the Owner Trustee and the respective present and former
directors, officers, employees and agents of the Owner Trustee, and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out
of or based upon (i) any untrue statement of a material fact contained or
alleged to be contained in any information provided by or on behalf of the
Depositor or GMACM for inclusion in any report filed with Commission under
the Exchange Act (collectively, the "GMACM Information"), or (ii) the
omission or alleged omission to state in the GMACM Information a material
fact required to be stated in the GMACM Information or necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) Notwithstanding any provision in this Section 10.04 to the contrary,
the parties agree that none of the Owner Trustee, the Depositor or GMACM
shall be liable to the other for any consequential or punitive damages
whatsoever, whether in contract, tort (including negligence and strict
liability), or any other legal or equitable principle; provided, however,
that such limitation shall not be applicable with respect to third party
claims made against a party.
ARTICLE XI
Miscellaneous
Section 11.01. Amendments.
(a) (a) This Trust Agreement may be amended from time to time by the
parties hereto with the consent of the Enhancer as specified in this Section
11.01, provided that any such amendment, except as provided in paragraph (e)
below, shall be accompanied by an Opinion of Counsel addressed to the Owner
Trustee and the Enhancer to the effect that such amendment (i) complies with
the provisions of this Section and (ii) will not cause the Trust to be
subject to any tax or cause any of the REMICs to fail to qualify as a REMIC
for federal income tax purposes.
(b) If the purpose of any such amendment (as detailed therein) is to
correct any mistake, eliminate any inconsistency, cure any ambiguity or deal
with any matter not covered in this Trust Agreement (i.e., to give effect to
the intent of the parties), it shall not be necessary to obtain the consent
of any Certificateholders, but the Owner Trustee shall be furnished with (i)
a letter from each Rating Agency that the amendment will not result in a
Rating Event, determined without regard to the Policy and (ii) an Opinion of
Counsel to the effect that such action will not adversely affect in any
material respect the interests of any Certificateholder or the Enhancer, and
the consent of the Enhancer shall be obtained.
(c) If the purpose of the amendment is to prevent the imposition of any
federal or state taxes at any time that any Security is outstanding (i.e.,
technical in nature), it shall not be necessary to obtain the consent of any
Certificateholder, but the Owner Trustee shall be furnished with an Opinion
of Counsel that such amendment is necessary or helpful to prevent the
imposition of such taxes and is not materially adverse to any
Certificateholder and the consent of the Enhancer shall be obtained.
(d) If the purpose of the amendment is to add or eliminate or change any
provision of the Trust Agreement other than as contemplated in (b) and (c)
above, the amendment shall require (i) the consent of the Enhancer and an
Opinion of Counsel to the effect that such action will not adversely affect
in any material respect the interests of any Certificateholder and (ii)
either (A) a letter from each Rating Agency that such amendment will not
cause a Rating Event, if determined without regard to the Policy or (B) the
consent of Certificateholders of each Class of Certificates evidencing a
majority of the aggregate Certificate Percentage Interest and the Indenture
Trustee; provided, however, that no such amendment shall reduce in any manner
the amount of, or delay the timing of, payments received that are required to
be distributed on any Certificate without the consent of each
Certificateholder affected thereby and the Enhancer, or reduce the aforesaid
percentage of Certificates the Certificateholders of which are required to
consent to any such amendment, without the consent of the Certificateholders
of all such Certificates then outstanding.
(e) No amendment of this Trust Agreement may provide for the holding of any
of the Certificates in book-entry form.
(f) If the purpose of any such amendment is to provide for the issuance of
additional Certificates representing an interest in the Trust, it shall not
be necessary to obtain the consent of any Certificateholder, but the Owner
Trustee shall be furnished with (i) an Opinion of Counsel to the effect that
such action will not adversely affect in any material respect the interests
of any Certificateholders and (B) a letter from each Rating Agency to the
effect that such amendment will not cause a Rating Event, if determined
without regard to the Policy, and the consent of the Enhancer shall be
obtained.
(g) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee, the
Enhancer and each of the Rating Agencies. It shall not be necessary for the
consent of Certificateholders or the Indenture Trustee pursuant to this
Section 11.01 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents (and any other
consents of Certificateholders provided for in this Trust Agreement or in any
other Basic Document) and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any agreement to
which the Trust is a party, other than this Trust Agreement, the Owner
Trustee shall be entitled to receive and conclusively rely upon an Opinion of
Counsel to the effect that such amendment is authorized or permitted by the
documents subject to such amendment and that all conditions precedent in the
Basic Documents for the execution and delivery thereof by the Trust or the
Owner Trustee, as the case may be, have been satisfied.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
Section 11.02. No Legal Title to Trust Estate. The Certificateholders
shall not have legal title to any part of the Trust Estate. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided beneficial interest therein only in accordance with Articles
V and VIII. No transfer, by operation of law or otherwise, of any right,
title or interest of the Certificateholders to and in their ownership
interest in the Trust Estate shall operate to terminate this Trust Agreement
or the trusts hereunder or entitle any transferee to an accounting or to the
transfer to it of legal title to any part of the Trust Estate.
Section 11.03. Limitations on Rights of Others. Except for Section 2.07,
the provisions of this Trust Agreement are solely for the benefit of the
Owner Trustee, the Depositor, the Certificateholders, the Enhancer and, to
the extent expressly provided herein, the Indenture Trustee and the
Noteholders, and nothing in this Trust Agreement (other than Section 2.07),
whether express or implied, shall be construed to give to any other Person
any legal or equitable right, remedy or claim in the Trust Estate or under or
in respect of this Trust Agreement or any covenants, conditions or provisions
contained herein.
Section 11.04. Notices.
(a) Unless otherwise expressly specified or permitted by the terms hereof,
all notices shall be in writing and shall be deemed given upon receipt: if
to the Owner Trustee, addressed to its Corporate Trust Office; if to the
Certificate Paying Agent, addressed to The Bank of New York Trust Company,
N.A., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Structured Finance Services - GMACM Home Equity Loan Trust Series 2006-HE5,
if to the Depositor, addressed to Residential Asset Mortgage Products, Inc.,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President, Re: GMACM Home Equity Loan Trust Series 2006-HE5; if to
the Enhancer, addressed to Financial Guaranty Insurance Company, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇: Attention: Structured Finance Surveillance
(GMACM Home Equity Loan Trust 2006-HE5), if to the Rating Agencies, addressed
to ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Structured Finance Department - MBS; or, as to each of the foregoing Persons,
at such other address as shall be designated by such Person in a written
notice to each of the other foregoing Persons.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register. Any notice so mailed
within the time prescribed in this Trust Agreement to a Certificateholder
shall be conclusively presumed to have been duly given, whether or not such
Certificateholder receives such notice.
(c) A copy of any notice delivered to the Owner Trustee or the Trust shall
also be delivered to the Depositor.
(d) Where this Trust Agreement provides for a notice, certificate, opinion,
report or similar delivery to be given to any transaction party or to a
Rating Agency, a copy of such document shall be contemporaneously sent to the
Enhancer.
Section 11.05. Severability. Any provision of this Trust Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 11.06. Separate Counterparts. This Trust Agreement may be
executed by the parties hereto in any number of counterparts, each of which
when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
Section 11.07. Successors and Assigns. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, each of the Enhancer, the Depositor, the Owner Trustee and
its successors and each Certificateholder and its successors and permitted
assigns, all as herein provided. Any request, notice, direction, consent,
waiver or other instrument or action by a Certificateholder shall bind the
successors and assigns of such Certificateholder.
Section 11.08. No Petition. The Owner Trustee, by entering into this
Trust Agreement, and each Certificateholder, by accepting a Certificate,
hereby covenant and agree that they will not at any time institute against
the Depositor or the Trust, or join in any institution against the Depositor
or the Trust of, any bankruptcy Proceedings under any United States federal
or state bankruptcy or similar law in connection with any obligations to the
Certificates, the Notes, this Trust Agreement or any of the other Basic
Documents.
Section 11.09. No Recourse. Each Certificateholder, by accepting a
Certificate, acknowledges that such Certificateholder's Certificate
represents a beneficial interest in the Trust only and does not represent an
interest in or obligation of the Depositor, the Sellers, the Owner Trustee,
the Indenture Trustee or any Affiliate thereof, and that no recourse may be
had against such Persons or their assets, except as may be expressly set
forth or contemplated in the Certificates, this Trust Agreement or the other
Basic Documents.
Section 11.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 11.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.12. Integration. This Trust Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof
and supersedes all prior agreements and understanding pertaining thereto.
Section 11.13. Rights of Enhancer to Exercise Rights of
Certificateholders. By accepting its Certificate, each Certificateholder
agrees that unless an Enhancer Default exists or as otherwise provided in
this Agreement, the Enhancer shall have the right to exercise all rights of
the Certificateholders under this Trust Agreement without any further consent
of the Certificateholders. Nothing in this Section, however, shall alter or
modify in any way, the fiduciary obligations of the Owner Trustee to the
Certificateholders pursuant to this Trust Agreement, or create any fiduciary
obligation of the Owner Trustee to the Enhancer. The Enhancer shall be an
express third party beneficiary of this Trust Agreement.
IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Depositor
By: _______________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee, except with
respect to the representations and
warranties contained in Section 6.03
hereof
By: _________________________________
Name:
Title:
Acknowledged and Agreed:
THE BANK OF NEW YORK TRUST COMPANY,
N.A.,
as Indenture Trustee, Certificate
Registrar
and Certificate Paying Agent
By: ___________________________________
Name:
Title:
Acknowledged and Agreed for purposes of Article X:
GMAC MORTGAGE, LLC,
By: ____________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
FORM OF CLASS SB CERTIFICATE
THIS CLASS SB CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES AS
DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THIS CLASS SB CERTIFICATE IS ISSUED IN THE PERCENTAGE INTEREST SET FORTH
BELOW. THE CERTIFICATEHOLDER OF THIS CERTIFICATE HEREBY CONSENTS TO ANY
CHANGE IN ITS PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS NOTE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE").
THIS CLASS SB CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT
AND STATE LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT
FROM REGISTRATION UNDER SUCH ACT AND SUCH STATE LAWS AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.05 OF THE AGREEMENT.
NO TRANSFER OF THIS CLASS SB CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER, IN THE FORM
OF EXHIBIT G TO THE AGREEMENT, FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT
TO THE PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY
REQUIREMENTS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), ANY PERSON ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF
ANY SUCH PLAN OR ANY PERSON USING "PLAN ASSETS," WITHIN THE MEANING OF THE
DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, TO ACQUIRE THIS CLASS SB
CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (ii) IF THIS CLASS SB CERTIFICATE
IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR, AN OPINION OF
COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER AND THE CERTIFICATE REGISTRAR, TO
THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CLASS SB CERTIFICATE IS
PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
(OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) AND WILL NOT SUBJECT
THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER OR THE CERTIFICATE REGISTRAR
TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE
UNDERTAKEN IN THE AGREEMENT.
THE TRANSFEREE OF THIS CLASS SB CERTIFICATE SHALL BE SUBJECT TO UNITED STATES
FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED
A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS TO THE TRANSFEREE'S STATUS
AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW.
THIS CLASS SB CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
THE SELLERS, THE DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE, THE OWNER
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED
IN THE AGREEMENT OR THE OTHER BASIC DOCUMENTS.
Class: SB
Certificate No.
Percentage Interest: 100%
Cut-Off Date: November 1, 2006
Date of Trust Agreement: November 29, 2006
First Payment Date: December 26, 2006
Final Payment Date: February 25, 2037
GMACM HOME EQUITY LOAN-BACKED CERTIFICATE, SERIES 2006-HE5
evidencing a fractional undivided interest in GMACM
Home Equity Loan Trust 2006-HE5 (the "Issuer"), the
property of which consists primarily of the Mortgage
Loans.
This Class SB Certificate is payable solely from the assets of the
Trust Estate, and does not represent an obligation of or interest in the
Depositor, the Sellers, the Servicer, the Indenture Trustee or the Owner
Trustee or any of their Affiliates. This Class SB Certificate is not
guaranteed or insured by any governmental agency or instrumentality or by the
Depositor, the Sellers, the Servicer, the Indenture Trustee or the Owner
Trustee or any of their affiliates. None of the Depositor, the Sellers, the
Servicer, the Indenture Trustee or the Owner Trustee or any of their
Affiliates will have any obligation with respect to any certificate or other
obligation secured by or payable from payments on the Certificates.
This certifies that GMAC Mortgage, LLC is the registered owner of the
Certificate Percentage Interest evidenced by this Class SB Certificate (as
set forth on the face hereof) in certain distributions with respect to the
Trust Estate, consisting primarily of the Mortgage Loans, created by
Residential Asset Mortgage Products, Inc. (the "Depositor"). The Trust (as
defined herein) was created pursuant to a trust agreement dated as of
November 29, 2006 (as amended and supplemented from time to time, the
"Agreement"), between the Depositor and Wilmington Trust Company, as owner
trustee (the "Owner Trustee," which term includes any successor entity under
the Agreement), a summary of certain of the pertinent provisions of which is
set forth hereafter. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in Appendix A to the
indenture dated as of November 29, 2006, between the Trust and the Indenture
Trustee. This Class SB Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Certificateholder of this Class SB Certificate by virtue of the acceptance
hereof assents and by which such Certificateholder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each March, June, September and December or, if such 25th day
is not a Business Day, the Business Day immediately following (the "Payment
Date"), commencing on the first Payment Date specified above, to the Person
in whose name this Class SB Certificate is registered at the close of
business on the last day (or if such last day is not a Business Day, the
Business Day immediately preceding such last day) of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount
equal to the pro rata portion evidenced by this Class SB Certificate (based
on the Percentage Interest stated on the face hereon) of the amount, if any,
required to be distributed to Certificateholders of Class SB Certificates on
such Payment Date. Distributions on this Class SB Certificate will be made
as provided in the Agreement by the Certificate Paying Agent by wire transfer
or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Class SB Certificate
or the making of any notation hereon. Pursuant to the Agreement, the Trust
has issued three Classes of Certificates, designated as the Class SB
Certificates, the Class R-I Certificates and the Class R-II Certificates.
Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Class SB Certificate will be made after
due notice by the Certificate Paying Agent of the pendency of such
distribution and only upon presentation and surrender of this Class SB
Certificate at the Corporate Trust Office of the Certificate Registrar.
No transfer of this Class SB Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and any applicable state
securities laws or is made in accordance the Securities Act and such state
laws. In the event that such a transfer is to be made, (i) the Certificate
Registrar or the Depositor may require an Opinion of Counsel acceptable to
and in form and substance satisfactory to the Certificate Registrar and the
Depositor that such transfer is exempt (describing the applicable exemption
and the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act, and of any applicable statute of any
state and (ii) the transferee shall execute an investment letter in the form
described in the Agreement and (iii) the Certificate Registrar shall require
the transferee to execute an investment letter and a Certificate of
Non-Foreign Status in the form described by the Agreement (or if a
Certificate of Non-Foreign Status is not provided, an Opinion of Counsel as
described in the Agreement), which investment letter and certificate or
Opinion of Counsel shall not be at the expense of the Trust, the Owner
Trustee, the Certificate Registrar or the Depositor. The Certificateholder
hereof desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trust, the Owner Trustee, the Depositor, the Servicer and the
Certificate Registrar against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws. In connection with any such transfer, the Certificate Registrar
(unless otherwise directed by the Depositor) will also require either (i) a
representation letter, in the form of Exhibit G to the Agreement, stating
that the transferee is not an employee benefit or other plan subject to the
prohibited transaction restrictions or the fiduciary responsibility
requirements of ERISA or Section 4975 of the Code (a "Plan"), any person
acting, directly or indirectly, on behalf of any such Plan or any Person
using the "plan assets," within the meaning of the Department of Labor
Regulations Section 2510.3-101, to effect such acquisition (collectively, a
"Plan Investor") or (ii) if such transferee is a Plan Investor, an Opinion of
Counsel acceptable to and in form and substance satisfactory to the
Depositor, the Owner Trustee, the Servicer and the Certificate Registrar, to
the effect that the purchase or holding of such Class SB Certificate is
permissible under applicable law, will not constitute or result in a
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
(or comparable provisions of any subsequent enactments) and will not subject
the Depositor, the Owner Trustee, the Servicer or the Certificate Registrar
to any obligation or liability (including obligations or liabilities under
Section 406 of ERISA or Section 4975 of the Code) in addition to those
undertaken in the Agreement.
This Class SB Certificate is one of a duly authorized issue of
Certificates designated as GMACM Home Equity Loan-Backed Certificates of the
Series specified hereon (the "Certificates").
The Certificateholder of this Class SB Certificate, by its acceptance
hereof, agrees that it will look solely to the funds on deposit in the
Distribution Account that have been released from the Lien of the Indenture
for payment hereunder and that neither the Owner Trustee in its individual
capacity nor the Depositor is personally liable to the Certificateholders for
any amount payable under this Class SB Certificate or the Agreement or,
except as expressly provided in the Agreement, subject to any liability under
the Agreement.
The Certificateholder of this Class SB Certificate acknowledges and
agrees that its rights to receive distributions in respect of this Class SB
Certificate are subordinated to the rights of the Noteholders as described in
the Indenture.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, or join in any institution against the Depositor or the Trust
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Agreement or any of the other Basic Documents.
The Agreement permits the amendment thereof as specified below,
provided that any amendment be accompanied by the consent of the Enhancer and
an Opinion of Counsel to the Owner Trustee to the effect that such amendment
complies with the provisions of the Agreement and will not cause the Trust to
be subject to an entity level tax. If the purpose of any such amendment is
to correct any mistake, eliminate any inconsistency, cure any ambiguity or
deal with any matter not covered, it shall not be necessary to obtain the
consent of any Certificateholder, but the Owner Trustee shall be furnished
with a letter from each Rating Agency to the effect that such amendment will
not cause a Rating Event determined without regard to the Policy, and the
consent of the Enhancer shall be obtained. If the purpose of any such
amendment is to prevent the imposition of any federal or state taxes at any
time that any Security is Outstanding, it shall not be necessary to obtain
the consent of the any Certificateholder, but the Owner Trustee shall be
furnished with an Opinion of Counsel that such amendment is necessary or
helpful to prevent the imposition of such taxes and is not materially adverse
to any Certificateholder and the consent of the Enhancer shall be obtained.
If the purpose of the amendment is to add or eliminate or change any
provision of the Agreement, other than as specified in the preceding two
sentences, the amendment shall require either (a) a letter from each Rating
Agency to the effect that such amendment will not cause a Rating Event
(determined without regard to the Policy or (b) the consent of
Certificateholders of a majority of the Percentage Interests of the
Certificates and the Indenture Trustee; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the time of,
payments received that are required to be distributed on any Certificate
without the consent of all Certificateholders affected thereby and the
Enhancer, or (ii) reduce the aforesaid percentage of Certificates the
Certificateholders of which are required to consent to any such amendment
without the consent of the Certificateholders of all such Certificates then
outstanding.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Class SB Certificate is registerable in the
Certificate Register upon surrender of this Class SB Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the
Certificateholder hereof or such Certificateholder's attorney duly authorized
in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest
will be issued to the designated transferee. The initial Certificate
Registrar appointed under the Agreement is the Owner Trustee.
Except as provided in the Agreement, the Class SB Certificates are
issuable only in minimum denominations of a 10.0000% Percentage Interest and
in integral multiples of a 0.0001% Percentage Interest in excess thereof. As
provided in the Agreement and subject to certain limitations therein set
forth, the Class SB Certificates are exchangeable for new Class SB
Certificates of authorized denominations, as requested by the
Certificateholder surrendering the same. This Class SB Certificate is issued
in the Percentage Interest above.
No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge payable
in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent,
or the Certificate Registrar may treat the Person in whose name this Class SB
Certificate is registered as the owner hereof for all purposes, and none of
the Owner Trustee, the Certificate Paying Agent, the Certificate Registrar or
any such agent shall be affected by any notice to the contrary.
This Class SB Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
The obligations created by the Agreement in respect of this Class SB
Certificate and the Trust created thereby shall terminate upon the final
distribution of all moneys or other property or proceeds of the Trust Estate
in accordance with the terms of the Indenture and the Agreement.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, or an authenticating
agent by manual signature, this Class SB Certificate shall not be entitled to
any benefit under the Agreement or be valid for any purpose.
[Signature Page Follows]
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Class SB Certificate to be duly
executed.
GMACM HOME EQUITY LOAN TRUST 2006-HE5
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
Dated: November 29, 2006 By: __________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ________________________________________
Authorized Signatory
or as Authenticating Agent of the Trust
By:__________________________________________
Authorized Signatory
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer
unto
_____________________________________________________________________________
(name and address of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing __________________________________________________
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:_____________________
_____________________________________ */
Signature Guaranteed:
___________________________ */
*/ NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must
be guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available funds
to ______________________________________for the account of
______________________________, account number _________________, or, if mailed
by check, to________________________.
Applicable statements should be mailed to
_________________________________.
________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT B
CERTIFICATE OF TRUST
OF
GMACM HOME EQUITY LOAN TRUST 2006-HE5
THE UNDERSIGNED, Wilmington Trust Company, as owner trustee (the
"Trustee"), for the purpose of forming a statutory trust does hereby certify
as follows:
1. The name of the statutory trust is:
GMACM HOME EQUITY LOAN TRUST 2006-HE5
2. The name and business address of the Trustee of the statutory
trust in the State Delaware is Wilmington Trust Company, ▇▇▇▇▇▇ Square North,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. The statutory trust reserves the right to amend, alter, change,
or repeal any provision contained in this Certificate of Trust in the manner
now or hereafter prescribed by law.
4. This Certificate of Trust shall be effective upon filing.
THE UNDERSIGNED, being the Trustee hereinbefore named, for the purpose
of forming a statutory trust pursuant to the provisions of the Delaware
Statutory Trust Act, does make this certificate of trust, hereby declaring
and further certifying that this is its act and deed and that to the best of
the undersigned's knowledge and belief the facts herein stated are true.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as owner trustee under the
trust agreement to be dated as of
November 29, 2006
By:___________________________________
Name:
Title:
Dated: November 29, 2006
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
The undersigned seller, as registered holder (the "Seller"), intends to
transfer the Rule 144A Securities described above to the undersigned buyer
(the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting
on its behalf has offered, transferred, pledged, sold or otherwise disposed
of the Rule 144A Securities, any interest in the Rule 144A Securities or any
other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security from, or
otherwise approached or negotiated with respect to the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security with,
any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Rule 144A Securities under the
Securities Act of 1933, as amended (the "1933 Act"), or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the 1933
Act or require registration pursuant thereto, and that the Seller has not
offered the Rule 144A Securities to any person other than the Buyer or
another "qualified institutional buyer" as defined in Rule 144A under the
▇▇▇▇ ▇▇▇.
2. The Buyer warrants and represents to, and covenants with, the
Owner Trustee and the Depositor, pursuant to Section 3.05 of the trust
agreement dated as of November 29, 2006 (the "Agreement"), between
Residential Asset Mortgage Products, Inc., as depositor (the "Depositor"),
and Wilmington Trust Company, as owner trustee (the "Owner Trustee"), as
follows:
a. The Buyer understands that the Rule 144A Securities have not
been registered under the 1933 Act or the securities laws of any state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of investment in the Rule 144A Securities.
c. The Buyer has been furnished with all information regarding
the Rule 144A Securities that it has requested from the Seller, the
Indenture Trustee, the Owner Trustee or the Servicer.
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security
from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the
Rule 144A Securities under the 1933 Act or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the
1933 Act or require registration pursuant thereto, nor will it act, nor
has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term
is defined in Rule 144A under the 1933 Act and has completed either of
the forms of certification to that effect attached hereto as Annex 1 or
Annex 2. The Buyer is aware that the sale to it is being made in
reliance on Rule 144A. The Buyer is acquiring the Rule 144A Securities
for its own account or the accounts of other qualified institutional
buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
1933 Act.
3. The Buyer represents that:
(i) either (a) or (b) is satisfied, as marked below:
a. The Buyer is not any employee benefit plan
subject to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or the Internal Revenue Code of 1986, as
amended (the "Code"), a Person acting, directly or indirectly, on
behalf of any such plan or any Person acquiring such Certificates
with "plan assets" of a Plan within the meaning of the Department
of Labor Regulations Section 2510.3-101; or
b. The Buyer will provide the Depositor, the
Owner Trustee, the Certificate Registrar and the Servicer with
either: (x) an opinion of counsel, satisfactory to the Depositor,
the Owner Trustee, the Certificate Registrar and the Servicer, to
the effect that the purchase and holding of a Certificate by or
on behalf of the Buyer is permissible under applicable law, will
not constitute or result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code (or comparable
provisions of any subsequent enactments) and will not subject the
Depositor, the Owner Trustee, the Certificate Registrar or the
Servicer to any obligation or liability (including liabilities
under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Trust Agreement, which opinion of counsel shall
not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer; or (y) in lieu of such
opinion of counsel, a certification in the form of Exhibit G to
the Trust Agreement; and
(ii) the Buyer is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406
and 407 of ERISA and Section 4975 of the Code and understands that each
of the parties to which this certification is made is relying and will
continue to rely on the statements made in this paragraph 3.
This document may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together,
shall constitute one and the same document.
Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in Appendix A to the indenture dated as of
November 29, 2006, between the Trust and the Indenture Trustee.
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
Print Name of Seller Print Name of Buyer
By: By:
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. No.
Date: Date:
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $ (1) in
securities (except for the excluded securities referred to below) as of the
end of the Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Buyer satisfies the criteria in the
category marked below.
Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar statutory trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code.
Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any state, territory or
the District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements.
Broker-Dealer. The Buyer is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as amended.
Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state or
territory or the District of Columbia.
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:
____________________
(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.
EXHIBIT D
FORM OF INVESTOR REPRESENTATION LETTER
____________,____
Residential Asset Mortgage Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The Bank of New York Trust Company, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Residential Asset Mortgage Products, Inc.,
GMACM Home Equity Loan-Backed Certificates, Series 2006-HE5
Ladies and Gentlemen:
___________________ (the "Purchaser") intends to purchase from
__________________________ (the "Seller")__________________% Certificate
Percentage Interest of the Class [__] Certificates, Series 2006-HE5 (the
"Certificates"), issued pursuant to the trust agreement dated as of November
29, 2006 (the "Trust Agreement"), between Residential Asset Mortgage
Products, Inc., as depositor (the "Depositor") and Wilmington Trust Company,
as owner trustee (the "Owner Trustee"), as acknowledged and agreed by The
Bank of New York Trust Company, N.A., 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 November 29,
2006, between the Trust and the Indenture Trustee. The Purchaser hereby
certifies, represents and warrants to, and covenants with, the Depositor and
the Certificate Registrar that:
1. The Purchaser understands that (a) the Certificates have
not been and will not be registered or qualified under the Securities
Act of 1933, as amended (the "Act"), or any state securities law, (b)
the Company is not required to so register or qualify the Certificates,
(c) the Certificates may be resold only if registered and qualified
pursuant to the provisions of the Act or any state securities law, or
if an exemption from such registration and qualification is available,
(d) the Trust Agreement contains restrictions regarding the transfer of
the Certificates and (e) the Certificates will bear a legend to the
foregoing effect.
2. The Purchaser is acquiring the Certificates for its own
account for investment only and not with a view to or for sale in
connection with any distribution thereof in any manner that would
violate the Act or any applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters, and, in particular, in such matters
related to securities similar to the Certificates, such that it is
capable of evaluating the merits and risks of investment in the
Certificates, (b) able to bear the economic risks of such an investment
and (c) an "accredited investor" within the meaning of Rule 501(a)
promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had an
opportunity to review a copy of the Trust Agreement and such other
information concerning the Certificates, the Mortgage Loans and the
Depositor as has been requested by the Purchaser from the Depositor or
the Seller and is relevant to the Purchaser's decision to purchase the
Certificates. The Purchaser has had any questions arising from such
review answered by the Depositor or the Seller to the satisfaction of
the Purchaser.
5. The Purchaser has not and will not nor has it authorized or
will it authorize any person to (a) offer, pledge, sell, dispose of or
otherwise transfer any Certificate, any interest in any Certificate or
any other similar security to any person in any manner, (b) solicit any
offer to buy or to accept a pledge, disposition of other transfer of
any Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) otherwise approach or
negotiate with respect to any Certificate, any interest in any
Certificate or any other similar security with any person in any
manner, (d) make any general solicitation by means of general
advertising or in any other manner or (e) take any other action, that
(as to any of (a) through (d) above) would constitute a distribution of
any Certificate under the Act, that would render the disposition of any
Certificate a violation of Section 5 of the Act or any state securities
law, or that would require registration or qualification pursuant
thereto. The Purchaser will not sell or otherwise transfer any of the
Certificates, except in compliance with the provisions of the Trust
Agreement.
6. The Purchaser represents:
(i) that either (a) or (b) is satisfied, as marked below:
a. The Purchaser is not any employee benefit
plan subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or the Internal Revenue Code of 1986,
as amended (the "Code"), a Person acting, directly or indirectly,
on behalf of any such plan or any Person acquiring such
Certificates with "plan assets" of a Plan within the meaning of
the Department of Labor Regulations Section 2510.3-101; or
b. The Purchaser will provide the Depositor,
the Owner Trustee, the Certificate Registrar and the Servicer
with either: (x) an opinion of counsel, satisfactory to the
Depositor, the Owner Trustee, the Certificate Registrar and the
Servicer, to the effect that the purchase and holding of a
Certificate by or on behalf of the Purchaser is permissible under
applicable law, will not constitute or result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the
Code (or comparable provisions of any subsequent enactments) and
will not subject the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer to any obligation or
liability (including liabilities under ERISA or Section 4975 of
the Code) in addition to those undertaken in the Trust Agreement,
which opinion of counsel shall not be an expense of the
Depositor, the Owner Trustee, the Certificate Registrar or the
Servicer; or (y) in lieu of such opinion of counsel, a
certification in the form of Exhibit G to the Trust Agreement; and
(ii) the Purchaser is familiar with the prohibited
transaction restrictions and fiduciary responsibility requirements of
Sections 406 and 407 of ERISA and Section 4975 of the Code and
understands that each of the parties to which this certification is
made is relying and will continue to rely on the statements made in
this paragraph 6.
7. The Purchaser is not a non-United States person.
Very truly yours,
By: _____________________________
Name:
Title:
EXHIBIT E
FORM OF TRANSFEROR REPRESENTATION LETTER
__________, _________
Residential Asset Mortgage Products, Inc.
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The Bank of New York Trust Company, N.A.
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Re: Residential Asset Mortgage Products, Inc.
GMACM Home Equity Loan-Backed Certificates, Series 2006-HE5
Ladies and Gentlemen:
___________________(the "Purchaser") intends to purchase from
________________________ (the "Seller") a ______% Percentage Interest of
Certificates of the Class [__] Certificates, Series 2006-HE5 (the
"Certificates"), issued pursuant to the trust agreement dated as of November
29, 2006 (the "Trust Agreement"), between Residential Asset Mortgage
Products, Inc., as depositor (the "Depositor"), and Wilmington Trust Company,
as owner trustee (the "Owner Trustee"), as acknowledged and agreed by The
Bank of New York Trust Company, N.A., 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 November 29,
2006, between the Trust and the Indenture Trustee. The Seller hereby
certifies, represents and warrants to, and covenants with, the Depositor and
the Certificate Registrar that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
has otherwise approached or negotiated with respect to any Certificate, any
interest in any Certificate or any other similar security with any person in
any manner, (d) has made any general solicitation by means of general
advertising or in any other manner, or (e) has taken any other action, that
(as to any of (a) through (e) above) would constitute a distribution of the
Certificates under the Securities Act of 1933 (the "Act"), that would render
the disposition of any Certificate a violation of Section 5 of the Act or any
state securities law, or that would require registration or qualification
pursuant thereto. The Seller will
not act, in any manner set forth in the foregoing sentence with respect to
any Certificate. The Seller has not and will not sell or otherwise transfer
any of the Certificates, except in compliance with the provisions of the
Trust Agreement.
Very truly yours,
(Seller)
By: ____________________________
Name:
Title:
EXHIBIT F
FORM OF CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status is delivered pursuant to Section
3.05 of the trust agreement dated as of November 29, 2006 (the "Trust
Agreement"), between Residential Asset Mortgage Products, Inc., as depositor
(the "Depositor"), and Wilmington Trust Company, as owner trustee, in
connection with the acquisition of, transfer to or possession by the
undersigned, whether as beneficial owner (the "Beneficial Owner"), or nominee
on behalf of the Beneficial Owner of GMACM Home Equity Loan-Backed
Certificates, Series 2006-HE5 (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 November 29, 2006, between
the Trust and the Indenture Trustee.
Each holder must complete Part I, Part II (if the holder is a nominee),
and in all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form
W-9 relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or
1446 of the Internal Revenue Code (relating to withholding tax on foreign
partners) do not apply in respect of the Certificates held by the
undersigned, the undersigned hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (the Beneficial Owner is ) not a non-resident
alien for purposes of U.S. income taxation;
2. My (the Beneficial Owner's) name and home address are:
_________________________________________; and
3. My (the Beneficial Owner's) U.S. taxpayer
identification number (Social Security Number) is
_______________________.
B. Corporate, Partnership or Other Entity as Beneficial Owner
1. (Name of the Beneficial
Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as
those terms are defined in the Code and Treasury
Regulations;
2.. The Beneficial Owner's office address and place of
incorporation (if applicable) is_________________; and
3. The Beneficial Owner's U.S. employer identification
number is _________________________.
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this Certificate has been made in reliance upon
information contained in:
an IRS Form W-9
a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that
the form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees
to notify the Trust within sixty (60) days of the date that the Beneficial
Owner becomes a foreign person. The undersigned understands that this
certificate may be disclosed to the Internal Revenue Service by the Trust and
any false statement contained therein could be punishable by fines,
imprisonment or both.
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct
and complete and will further declare that I will inform the Trust of any
change in the information provided above, and, if applicable, I further
declare that I have the authority* to sign this document.
______________________________________
Name
_______________________________________
Title (if applicable)
_______________________________________
Signature and Date
*NOTE: If signed pursuant to a power of attorney, the power of attorney must
accompany this certificate.
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
__________ ,___
Residential Asset Mortgage Products, Inc.
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Wilmington Trust Company
▇▇▇▇▇▇ Square North
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
GMAC Mortgage, LLC
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The Bank of New York Trust Company, N.A.
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Re: Residential Asset Mortgage Products, Inc.
GMACM Home Equity Loan-Backed Certificates, Series 2006-HE5
Dear Sirs:
______________________________(the "Transferee")
intends to acquire from _____________________________________________ (the
"Transferor") a _____________% Percentage Interest of GMACM Home Equity
Loan-Backed Certificates, Series 2006-HE5 (the "Certificates"), issued
pursuant to a trust agreement dated as of November 29, 2006, between
Residential Asset Mortgage Products, Inc., as depositor (the "Depositor"),
and Wilmington Trust Company, as owner trustee (the "Owner Trustee").
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in Appendix A to the indenture dated as of November
29, 2006, between the Trust and the Indenture Trustee.
The Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Owner Trustee, the Certificate Registrar
and the Servicer that:
The Certificates (i) are not being acquired by, and will not be
transferred to, any employee benefit plan within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or other retirement arrangement, including individual
retirement accounts and annuities, ▇▇▇▇▇ plans and bank collective
investment funds and insurance company general or separate accounts in
which such plans, accounts or arrangements are invested, that is
subject to Section 406 of ERISA or Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code") (any of the foregoing, a "Plan"),
(ii) are not being acquired with "plan assets" of a Plan within the
meaning of the Department of Labor ("DOL") Regulations Section
2510.3-101, and (iii) will not be transferred to any entity that is
deemed to be investing in plan assets within the meaning of the DOL
Regulations Section 2510.3-101.
The Transferee is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406
and 407 of ERISA and Section 4975 of the Code and understands that each
of the parties to which this certification is made is relying and will
continue to rely on the statements made herein.
Very truly yours,
By: __________________________
Name:
Title:
EXHIBIT H
FORM OF REPRESENTATION LETTER
________________ ,____
Residential Asset Mortgage Products, Inc.
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Wilmington Trust Company
▇▇▇▇▇▇ Square North
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
GMAC Mortgage, LLC
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The Bank of New York Trust Company, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Residential Asset Mortgage Products, Inc.
GMACM Home Equity Loan-Backed Certificates, Series 2006-HE5
Dear Sirs:
______________________ (the "Transferee") intends
to acquire from ___________________________________________(the "Transferor")
a ______% Percentage Interest of GMACM Home Equity Loan-Backed Certificates,
Series 2006-HE5 (the "Certificates"), issued pursuant to a trust agreement
dated as of November 29, 2006 (the "Trust Agreement"), Residential Asset
Mortgage Products, Inc., as depositor (the "Depositor"), and Wilmington Trust
Company, as owner trustee (the "Owner Trustee"). Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed
thereto in Appendix A to the indenture dated as of November 29, 2006, between
the Trust and the Indenture Trustee.
The Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Owner Trustee, the Certificate Registrar
and the Servicer that:
(1) the Transferee is acquiring the Certificate for its own
behalf and is not acting as agent or custodian for any other person or
entity in connection with such acquisition; and
(2) the Transferee is not a partnership, grantor trust or S
corporation for federal income tax purposes, or, if the Transferee is a
partnership, grantor trust or S corporation for federal income tax
purposes, the Certificates are not more than 50% of the assets of the
partnership, grantor trust or S corporation.
Very truly yours,
By:__________________________________
Name:
Title:
EXHIBIT I-1
FORM OF CLASS R-I CERTIFICATES
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES
PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE
TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 3.05 OF THE
AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY
AND THE TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE SERVICER, THE COMPANY OR
THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN
THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER
AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY
STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES,
OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN
INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT
TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT
SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE
FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES
DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY
CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED
BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE
CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE
COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING
LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED
IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO
AS A "DISQUALIFIED ORGANIZATION"), OR (F) AN AGENT OF A DISQUALIFIED
ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL
CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION
OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED
TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE
DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH
HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED
TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
Certificate No. 1
Class R-I Certificate
Percentage Interest: 100%
Cut-Off Date: November 1, 2006
Date of Trust Agreement: November 29, 2006
First Payment Date: December 26, 2006
Final Payment Date: February 27, 2037
GMACM HOME EQUITY LOAN-BACKED CERTIFICATE, SERIES 2006-HE5
evidencing a fractional undivided interest in GMACM
Home Equity Loan Trust 2006-HE5 (the "Trust"), the
property of which consists primarily of the Mortgage
Loans.
This Certificate is payable solely from the assets of the Trust Estate,
and does not represent an obligation of or interest in the Depositor, the
Sellers, the Servicer, the Indenture Trustee or the Owner Trustee or any of
their Affiliates. This Certificate is not guaranteed or insured by any
governmental agency or instrumentality or by the Depositor, the Sellers, the
Servicer, the Indenture Trustee or the Owner Trustee or any of their
affiliates. None of the Depositor, the Sellers, the Servicer, the Indenture
Trustee or the Owner Trustee or any of their Affiliates will have any
obligation with respect to any certificate or other obligation secured by or
payable from payments on the Certificates.
This certifies that GMAC Mortgage, LLC is the registered owner of the
Certificate Percentage Interest evidenced by this Certificate (as set forth
on the face hereof) in certain distributions with respect to the 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 November 29,
2006 (as amended and supplemented from time to time, the "Agreement"),
between the Depositor and Wilmington Trust Company, as owner trustee (the
"Owner Trustee," which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in Appendix A to the
indenture dated as of November 29, 2006, between the Trust and the Indenture
Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the
Certificateholder of this Certificate by virtue of the acceptance hereof
assents and by which such Certificateholder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each March, June, September and December or, if such 25th day
is not a Business Day, the Business Day immediately following (the "Payment
Date"), commencing on the first Payment Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last day (or if such last day is not a Business Day, the Business Day
immediately preceding such last day) of the month immediately preceding the
month of such distribution (the "Record Date"), in an amount equal to the pro
rata portion evidenced by this Certificate (based on the Percentage Interest
stated on the face hereon) of the amount, if any, required to be distributed
to Certificateholders of Certificates on such Payment Date. Distributions on
this Certificate will be made as provided in the Agreement by the Certificate
Paying Agent by wire transfer or check mailed to the Certificateholder of
record in the Certificate Register without the presentation or surrender of
this Certificate or the making of any notation hereon.
Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Certificate will be made after due
notice by the Certificate Paying Agent of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the Corporate
Trust Office of the Certificate Registrar. This Certificate has no
Certificate Balance.
Each Certificateholder of this Certificate will be deemed to have
agreed to be bound by the restrictions set forth in the Agreement to the
effect that (i) each person holding or acquiring any Ownership Interest in
this Certificate must be a United States Person and a Permitted Transferee,
(ii) the transfer of any Ownership Interest in this Certificate will be
conditioned upon the delivery to the Indenture Trustee of, among other
things, an affidavit to the effect that it is a United States Person and
Permitted Transferee, (iii) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions will
be absolutely null and void and will vest no rights in the purported
transferee, and (iv) if any person other than a United States Person and a
Permitted Transferee acquires any Ownership Interest in this Certificate in
violation of such restrictions, then the Depositor will have the right, in
its sole discretion and without notice to the Certificateholder of this
Certificate, to sell this Certificate to a purchaser selected by the
Depositor, which purchaser may be the Depositor, or any affiliate of the
Depositor, on such terms and conditions as the Depositor may choose.
No transfer of this Class R-I Certificate will be made unless the
Indenture Trustee has received either (i) an opinion of counsel acceptable to
and in form and substance satisfactory to the Trustee, the Depositor and the
Servicer with respect to the permissibility of such transfer under the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
Section 4975 of the Internal Revenue Code (the "Code") and stating, among
other things, that the transferee's acquisition of a Class R Certificate will
not constitute or result in a non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code or (ii) a representation letter, in
the form as described by the Agreement, stating that the transferee is not an
employee benefit or other plan subject to the prohibited transaction
provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other
person (including an investment manager, a named fiduciary or a trustee of
any Plan) acting, directly or indirectly, on behalf of or purchasing any
Certificate with "plan assets" of any Plan.
This Certificate is one of a duly authorized issue of Certificates
designated as GMACM Home Equity Loan-Backed Certificates of the Series
specified hereon (the "Certificates").
The Certificateholder of this Certificate, by its acceptance hereof,
agrees that it will look solely to the funds on deposit in the Distribution
Account that have been released from the Lien of the Indenture for payment
hereunder and that neither the Owner Trustee in its individual capacity nor
the Depositor is personally liable to the Certificateholders for any amount
payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
The Certificateholder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders and the Enhancer as described
in the Indenture.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, or join in any institution against the Depositor or the Trust
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Agreement or any of the other Basic Documents.
The Agreement permits the amendment thereof as specified below,
provided that any amendment be accompanied by an Opinion of Counsel to the
Owner Trustee and the Enhancer to the effect that such amendment complies
with the provisions of the Agreement and will not cause the Trust to be
subject to an entity level tax. If the purpose of any such amendment is to
correct any mistake, eliminate any inconsistency, cure any ambiguity or deal
with any matter not covered, it shall not be necessary to obtain the consent
of any Certificateholder, but the Owner Trustee shall be furnished with a
letter from each Rating Agency to the effect that such amendment will not
cause a Rating Event, determined without regard to the Policy. If the
purpose of any such amendment is to prevent the imposition of any federal or
state taxes at any time that any Security is Outstanding, it shall not be
necessary to obtain the consent of the any Certificateholder, but the Owner
Trustee and the Enhancer shall be furnished with an Opinion of Counsel that
such amendment is necessary or helpful to prevent the imposition of such
taxes and is not materially adverse to any Certificateholder. If the purpose
of the amendment is to add or eliminate or change any provision of the
Agreement, other than as specified in the preceding two sentences, the
amendment shall require either (a) a letter from each Rating Agency to the
effect that such amendment will not cause a Rating Event, determined without
regard to the Policy or (b) the consent of Certificateholders of a majority
of the Percentage Interests of the Certificates and the Indenture Trustee;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the time of, payments received that are required to be
distributed on any Certificate without the consent of all Certificateholders
affected thereby, or (ii) reduce the aforesaid percentage of Certificates the
Certificateholders of which are required to consent to any such amendment
without the consent of the Certificateholders of all such Certificates then
outstanding.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office of the Certificate Registrar,
accompanied by a written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Certificateholder hereof or such
Certificateholder's attorney duly authorized in writing, and thereupon one or
more new Certificates of authorized denominations evidencing the same
Class and aggregate Percentage Interest will be issued to the designated
transferee. The initial Certificate Registrar appointed under the Agreement
is the Owner Trustee.
Except as provided in the Agreement, the Certificates are issuable only
in minimum denominations of a 10.0000% Percentage Interest and in integral
multiples of a 0.0001% Percentage Interest in excess thereof. As provided in
the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of authorized
denominations, as requested by the Certificateholder surrendering the same.
This Certificate is issued in the Percentage Interest above.
No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge payable
in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent,
or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Owner Trustee, the Certificate Paying Agent, the Certificate Registrar or
any such agent shall be affected by any notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of Delaware.
The obligations created by the Agreement in respect of this Certificate
and the Trust created thereby shall terminate upon the final distribution of
all moneys or other property or proceeds of the Trust Estate in accordance
with the terms of the Indenture and the Agreement.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, or an authenticating
agent by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
[Signature Page Follows]
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Class R-I Certificate to be duly
executed.
GMACM HOME EQUITY LOAN TRUST 2006-HE5
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
Dated: November 29, 2006 By: _________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ________________________________
Authorized Signatory
or __________________________________,
as Authenticating Agent of the Trust
By: _________________________________
Authorized Signatory
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer
unto
_____________________________________________________________________________
(name and address of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing __________________________________________________
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:_____________________
_____________________________________ */
Signature Guaranteed:
___________________________ */
*/ NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must
be guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available funds
to ______________________________________for the account of
______________________________, account number _________________, or, if mailed
by check, to________________________.
Applicable statements should be mailed to
_________________________________.
________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT I-2
FORM OF CLASS R-II CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES
PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE
TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 3.05 OF THE
AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY
AND THE TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE SERVICER, THE COMPANY OR
THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN
THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER
AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY
STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES,
OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN
INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT
TO TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT
SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE
FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES
DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY
CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED
BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE
CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE
COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING
LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED
IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO
AS A "DISQUALIFIED ORGANIZATION"), OR (F) AN AGENT OF A DISQUALIFIED
ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL
CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION
OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED
TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE
DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH
HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED
TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
Certificate No. 1
Class R-II Certificate
Percentage Interest: 100%
Cut-Off Date: November 1, 2006
Date of Trust Agreement: November 29, 2006
First Payment Date: December 26, 2006
Final Payment Date: February 27, 2037
GMACM HOME EQUITY LOAN-BACKED CERTIFICATE, SERIES 2006-HE5
evidencing a fractional undivided interest in GMACM
Home Equity Loan Trust 2006-HE5 (the "Trust"), the
property of which consists primarily of the Mortgage
Loans.
This Certificate is payable solely from the assets of the Trust Estate,
and does not represent an obligation of or interest in the Depositor, the
Sellers, the Servicer, the Indenture Trustee or the Owner Trustee or any of
their Affiliates. This Certificate is not guaranteed or insured by any
governmental agency or instrumentality or by the Depositor, the Sellers, the
Servicer, the Indenture Trustee or the Owner Trustee or any of their
affiliates. None of the Depositor, the Sellers, the Servicer, the Indenture
Trustee or the Owner Trustee or any of their Affiliates will have any
obligation with respect to any certificate or other obligation secured by or
payable from payments on the Certificates.
This certifies that GMAC Mortgage, LLC is the registered owner of the
Certificate Percentage Interest evidenced by this Certificate (as set forth
on the face hereof) in certain distributions with respect to the 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 November 29,
2006 (as amended and supplemented from time to time, the "Agreement"),
between the Depositor and Wilmington Trust Company, as owner trustee (the
"Owner Trustee," which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in Appendix A to the
indenture dated as of November 29, 2006, between the Trust and the Indenture
Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the
Certificateholder of this Certificate by virtue of the acceptance hereof
assents and by which such Certificateholder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each March, June, September and December or, if such 25th day
is not a Business Day, the Business Day immediately following (the "Payment
Date"), commencing on the first Payment Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last day (or if such last day is not a Business Day, the Business Day
immediately preceding such last day) of the month immediately preceding the
month of such distribution (the "Record Date"), in an amount equal to the pro
rata portion evidenced by this Certificate (based on the Percentage Interest
stated on the face hereon) of the amount, if any, required to be distributed
to Certificateholders of Certificates on such Payment Date. Distributions on
this Certificate will be made as provided in the Agreement by the Certificate
Paying Agent by wire transfer or check mailed to the Certificateholder of
record in the Certificate Register without the presentation or surrender of
this Certificate or the making of any notation hereon.
Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Certificate will be made after due
notice by the Certificate Paying Agent of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the Corporate
Trust Office of the Certificate Registrar. This Certificate has no
Certificate Balance.
Each Certificateholder of this Certificate will be deemed to have
agreed to be bound by the restrictions set forth in the Agreement to the
effect that (i) each person holding or acquiring any Ownership Interest in
this Certificate must be a United States Person and a Permitted Transferee,
(ii) the transfer of any Ownership Interest in this Certificate will be
conditioned upon the delivery to the Indenture Trustee of, among other
things, an affidavit to the effect that it is a United States Person and
Permitted Transferee, (iii) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions will
be absolutely null and void and will vest no rights in the purported
transferee, and (iv) if any person other than a United States Person and a
Permitted Transferee acquires any Ownership Interest in this Certificate in
violation of such restrictions, then the Depositor will have the right, in
its sole discretion and without notice to the Certificateholder of this
Certificate, to sell this Certificate to a purchaser selected by the
Depositor, which purchaser may be the Depositor, or any affiliate of the
Depositor, on such terms and conditions as the Depositor may choose.
No transfer of this Class R-II Certificate will be made unless the
Indenture Trustee has received either (i) an opinion of counsel acceptable to
and in form and substance satisfactory to the Trustee, the Depositor and the
Servicer with respect to the permissibility of such transfer under the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
Section 4975 of the Internal Revenue Code (the "Code") and stating, among
other things, that the transferee's acquisition of a Class R Certificate will
not constitute or result in a non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code or (ii) a representation letter, in
the form as described by the Agreement, stating that the transferee is not an
employee benefit or other plan subject to the prohibited transaction
provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other
person (including an investment manager, a named fiduciary or a trustee of
any Plan) acting, directly or indirectly, on behalf of or purchasing any
Certificate with "plan assets" of any Plan.
This Certificate is one of a duly authorized issue of Certificates
designated as GMACM Home Equity Loan-Backed Certificates of the Series
specified hereon (the "Certificates").
The Certificateholder of this Certificate, by its acceptance hereof,
agrees that it will look solely to the funds on deposit in the Distribution
Account that have been released from the Lien of the Indenture for payment
hereunder and that neither the Owner Trustee in its individual capacity nor
the Depositor is personally liable to the Certificateholders for any amount
payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
The Certificateholder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders and the Enhancer as described
in the Indenture.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, or join in any institution against the Depositor or the Trust
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Agreement or any of the other Basic Documents.
The Agreement permits the amendment thereof as specified below,
provided that any amendment be accompanied by an Opinion of Counsel to the
Owner Trustee and the Enhancer to the effect that such amendment complies
with the provisions of the Agreement and will not cause the Trust to be
subject to an entity level tax. If the purpose of any such amendment is to
correct any mistake, eliminate any inconsistency, cure any ambiguity or deal
with any matter not covered, it shall not be necessary to obtain the consent
of any Certificateholder, but the Owner Trustee shall be furnished with a
letter from each Rating Agency to the effect that such amendment will not
cause a Rating Event, determined without regard to the Policy. If the
purpose of any such amendment is to prevent the imposition of any federal or
state taxes at any time that any Security is Outstanding, it shall not be
necessary to obtain the consent of the any Certificateholder, but the Owner
Trustee and the Enhancer shall be furnished with an Opinion of Counsel that
such amendment is necessary or helpful to prevent the imposition of such
taxes and is not materially adverse to any Certificateholder. If the purpose
of the amendment is to add or eliminate or change any provision of the
Agreement, other than as specified in the preceding two sentences, the
amendment shall require either (a) a letter from each Rating Agency to the
effect that such amendment will not cause a Rating Event, determined without
regard to the Policy or (b) the consent of Certificateholders of a majority
of the Percentage Interests of the Certificates and the Indenture Trustee;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the time of, payments received that are required to be
distributed on any Certificate without the consent of all Certificateholders
affected thereby, or (ii) reduce the aforesaid percentage of Certificates the
Certificateholders of which are required to consent to any such amendment
without the consent of the Certificateholders of all such Certificates then
outstanding.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office of the Certificate Registrar,
accompanied by a written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Certificateholder hereof or such
Certificateholder's attorney duly authorized in writing, and thereupon one or
more new Certificates of authorized denominations evidencing the same
Class and aggregate Percentage Interest will be issued to the designated
transferee. The initial Certificate Registrar appointed under the Agreement
is the Owner Trustee.
Except as provided in the Agreement, the Certificates are issuable only
in minimum denominations of a 10.0000% Percentage Interest and in integral
multiples of a 0.0001% Percentage Interest in excess thereof. As provided in
the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of authorized
denominations, as requested by the Certificateholder surrendering the same.
This Certificate is issued in the Percentage Interest above.
No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge payable
in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent,
or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Owner Trustee, the Certificate Paying Agent, the Certificate Registrar or
any such agent shall be affected by any notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of Delaware.
The obligations created by the Agreement in respect of this Certificate
and the Trust created thereby shall terminate upon the final distribution of
all moneys or other property or proceeds of the Trust Estate in accordance
with the terms of the Indenture and the Agreement.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, or an authenticating
agent by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
[Signature Page Follows]
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Class R-II Certificate to be duly
executed.
GMACM HOME EQUITY LOAN TRUST 2006-HE5
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
Dated: November 29, 2006 By: __________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: _________________________________
Authorized Signatory
or __________________________________,
as Authenticating Agent of the Trust
By:
Authorized Signatory
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer
unto
_____________________________________________________________________________
(name and address of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing __________________________________________________
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:_____________________
_____________________________________ */
Signature Guaranteed:
___________________________ */
*/ NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must
be guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available funds
to ______________________________________for the account of
______________________________, account number _________________, or, if mailed
by check, to________________________.
Applicable statements should be mailed to
_________________________________.
________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT J-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
(1) That he is [Title of Officer] of [Name of Owner] (record or beneficial
owner of the GMACM Home Equity Loan-Backed Certificates, Series 2006-HE5,
Class R-[ ] (the "Owner")), a [savings institution] [corporation] duly
organized and existing under the laws of [the State of
____________________________] [the United States], on behalf of which
he makes this affidavit and agreement.
(2) That the Owner (i) is not and will not be a "disqualified organization"
or an electing large partnership as of [date of transfer] within the meaning
of Sections 860E(e)(5) and 775, respectively, of the Internal Revenue Code of
1986, as amended (the "Code") or an electing large partnership under Section
775(a) of the Code, (ii) will endeavor to remain other than a disqualified
organization for so long as it retains its ownership interest in the
Class R-[ ] Certificates, and (iii) is acquiring the Class R-[ ]
Certificates for its own account or for the account of another Owner from
which it has received an affidavit and agreement in substantially the same
form as this affidavit and agreement. (For this purpose, a "disqualified
organization" means an electing large partnership under Section 775 of the
Code, the United States, any state or political subdivision thereof, any
agency or instrumentality of any of the foregoing (other than an
instrumentality all of the activities of which are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by any such governmental entity) or any foreign
government, international organization or any agency or instrumentality of
such foreign government or organization, any rural electric or telephone
cooperative, or any organization (other than certain farmers' cooperatives)
that is generally exempt from federal income tax unless such organization is
subject to the tax on unrelated business taxable income).
(3) That the Owner is aware (i) of the tax that would be imposed on
transfers of Class R Certificates to disqualified organizations or electing
large partnerships, under the Code, that applies to all transfers of Class R
Certificates after March 31, 1988; (ii) that such tax would be on the
transferor (or, with respect to transfers to electing large partnerships, on
each such partnership), or, if such transfer is through an agent (which
person includes a broker, nominee or middleman) for a disqualified
organization, on the agent; (iii) that the person (other than with respect to
transfers to electing large partnerships) otherwise liable for the tax shall
be relieved of liability for the tax if the transferee furnishes to such
person an affidavit that the transferee is not a disqualified organization
and, at the time of transfer, such person does not have actual knowledge that
the affidavit is false; and (iv) that the Class R-[ ] Certificates may be
"noneconomic residual interests" within the meaning of Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
(4) That the Owner is aware of the tax imposed on a "pass-through entity"
holding Class R Certificates if either the pass-through entity is an electing
large partnership under Section 775 of the if at any time during the taxable
year of the pass-through entity a disqualified organization is the record
holder of an interest in such entity. (For this purpose, a "pass through
entity" includes a regulated investment company, a real estate investment
trust or common trust fund, a partnership, trust or estate, and certain
cooperatives.)
(5) The Owner is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the laws of,
the United States or any political subdivision thereof (except in the case of
a partnership, to the extent provided in Treasury regulations), or an estate
that is described in Section 7701(a)(30)(D) of the Code, or a trust that is
described in Section 7701(a)(30)(E) of the Code.
(6) That the Owner is aware that the Certificate Registrar will not
register the transfer of any Class R Certificates unless the transferee, or
the transferee's agent, delivers to it an affidavit and agreement, among
other things, in substantially the same form as this affidavit and
agreement. The Owner expressly agrees that it will not consummate any such
transfer if it knows or believes that any of the representations contained in
such affidavit and agreement are false.
(7) That the Owner has reviewed the restrictions set forth on the face of
the Class R Certificates and the provisions of Section 3.05 of the Trust
Agreement under which the Class R-[ ] Certificates were issued (in
particular, clause (i)(A) and (i)(B) of Section 3.05 which authorize the
Certificate Registrar to deliver payments to a person other than the Owner
and negotiate a mandatory sale by the Servicer Trustee in the event the Owner
holds such Certificates in violation of Section 3.05). The Owner expressly
agrees to be bound by and to comply with such restrictions and provisions.
(8) That the Owner consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a
reasonable arrangement to ensure that the Class R-[ ] Certificates will only
be owned, directly or indirectly, by an Owner that is not a disqualified
organization.
(9) The Owner's Taxpayer Identification Number is___________________.
(10) This affidavit and agreement relates only to the Class R-[ ]
Certificates held by the Owner and not to any other holder of the Class R-[
]Certificates. The Owner understands that the liabilities described herein
relate only to the Class R-[ ] Certificates.
(11) That no purpose of the Owner relating to the transfer of any of the
Class R-[ ] Certificates by the Owner is or will be to impede the assessment
or collection of any tax.
(12) That the Owner has no present knowledge or expectation that it will be
unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby represents
to and for the benefit of the person from whom it acquired the Class R-[ ]
Certificate that the Owner intends to pay taxes associated with holding such
Class R-[ ] Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Class R-[
] Certificate.
(13) That the Owner has no present knowledge or expectation that it will
become insolvent or subject to a bankruptcy proceeding for so long as any of
the Class R-[ ] Certificates remain outstanding.
(14) The Purchaser is not an employee benefit plan or other plan subject to
the prohibited transaction provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or an investment manager,
named fiduciary or a trustee of any such plan, or any other Person acting,
directly or indirectly, on behalf of or purchasing any Certificate with "plan
assets" of any such plan.
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors,
by its [Title of Officer] and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this ____ day of __________,
____________.
[NAME OF OWNER]
By: _________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Owner, and acknowledged to
me that he executed the same as his free act and deed and the free act and
deed of the Owner.
Subscribed and sworn before me this ____ day of __________,
____________.
NOTARY PUBLIC
COUNTY OF
STATE OF
My Commission expires the ____ day of _____, 20___ .
EXHIBIT J-2
FORM OF TRANSFEROR CERTIFICATE
______________, 20
Residential Asset Mortgage Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Re: GMACM Home Equity Loan-Backed Term Notes,
Series 2006-HE5, Class R
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer
by _____________________________________________________________________ (the
"Seller") to ________________________________________________________________
(the "Purchaser") of $ ________________________________ Initial Certificate
Principal Balance of GMACM Home Loan Backed Pass-Through Certificates, Series
2006-HE5, Class R-[ ] (the "Certificates"), pursuant to Section 3.05 of the
Trust Agreement (the "Trust Agreement"), dated as of November 29, 2006 among
Residential Asset Mortgage Products, Inc., as seller (the "Company"), GMAC
Mortgage, LLC, as servicer, and Wilmington Trust Company, as owner trustee
(the "Trustee"). All terms used herein and not otherwise defined shall have
the meanings set forth in the Trust Agreement. The Seller hereby certifies,
represents and warrants to, and covenants with, the Company and the Trustee
that:
(15) No purpose of the Seller relating to the transfer of the Certificate by
the Seller to the Purchaser is or will be to impede the assessment or
collection of any tax.
(16) The Seller understands that the Purchaser has delivered to the Trustee
and the Servicer a transfer affidavit and agreement in the form attached to
the Trust Agreement as Exhibit J-1. The Seller does not know or believe that
any representation contained therein is false.
(17) The Seller has at the time of the transfer conducted a reasonable
investigation of the financial condition of the Purchaser as contemplated by
Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Seller has determined that the Purchaser has historically
paid its debts as they become due and has found no significant evidence to
indicate that the Purchaser will not continue to pay its debts as they become
due in the future. The Seller understands that the transfer of a Class R-[
] Certificate may not be respected for United States income tax purposes (and
the Seller may continue to be liable for United States income taxes
associated therewith) unless the Seller has conducted such an investigation.
(18) The Seller has no actual knowledge that the proposed Transferee is not
both a United States Person and a Permitted Transferee.
Very truly yours,
(Seller)
By:
Name:
Title:______________________________