================================================================================
RESIDENTIAL ACCREDIT LOANS, INC.,
as Company,
RESIDENTIAL FUNDING CORPORATION,
as Certificate Administrator,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
----------
TRUST AGREEMENT
Dated as of December 12, 2003
----------
Mortgage Trust Certificates, Series 2003-QR24
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS....................................................................4
Section 1.01. Defined Terms...............................................................4
ARTICLE II CONVEYANCE OF THE UNDERLYING CERTIFICATES; ORIGINAL ISSUANCE OF TRUST
CERTIFICATES...............................................................19
Section 2.01. Conveyance of the Underlying Certificates..................................19
Section 2.02. Issuance of Trust Certificates.............................................20
Section 2.03. [Reserved] ................................................................21
Section 2.04. [Reserved] ................................................................21
Section 2.05. Purposes and Powers of the Trust Fund......................................21
ARTICLE III ADMINISTRATION OF THE UNDERLYING CERTIFICATES; PAYMENTS AND REPORTS TO
CERTIFICATEHOLDERS.........................................................21
Section 3.01. Administration of the Trust Fund and the Underlying Certificates...........21
Section 3.02. Collection of Monies.......................................................25
Section 3.03. Establishment of Trust Certificate Account; Deposits in Trust
Certificate Account.....................................................25
Section 3.04. Permitted Withdrawals From the Trust Certificate Account...................26
Section 3.05. Distributions..............................................................26
Section 3.06. Statements to Certificateholders...........................................29
Section 3.07. Access to Certain Documentation and Information............................31
Section 3.08. Sale of Defective Assets...................................................31
Section 3.09. Modification of Underlying Certificates....................................31
Section 3.10. [Reserved] ................................................................31
Section 3.11. Allocation of Class A Loss Amounts.........................................31
Section 3.12. Compliance with Withholding Requirements...................................31
ARTICLE IV THE TRUST CERTIFICATES........................................................32
Section 4.01. The Trust Certificates.....................................................32
Section 4.02. Registration of Transfer and Exchange of Trust Certificates................33
Section 4.03. Mutilated, Destroyed, Lost or Stolen Trust Certificates....................36
Section 4.04. Persons Deemed Owners......................................................36
ARTICLE V THE TRUSTEE...................................................................37
Section 5.01. Duties of the Trustee......................................................37
Section 5.02. Certain Matters Affecting the Trustee......................................38
-i-
TABLE OF CONTENTS
(continued)
Page
----
Section 5.03. Trustee Not Liable for Trust Certificates or Underlying Certificates.......39
Section 5.04. Trustee May Own Trust Certificates.........................................40
Section 5.05. Eligibility Requirements for Trustee.......................................40
Section 5.06. Resignation and Removal of the Trustee.....................................40
Section 5.07. Successor Trustee..........................................................41
Section 5.08. Merger or Consolidation of Trustee.........................................41
Section 5.09. Appointment of Co-Trustee or Separate Trustee..............................42
Section 5.10. Appointment of Office or Agency............................................43
Section 5.11. Certificate Administrator to Pay Trustee's Fees and Expenses;
Indemnification.........................................................43
Section 5.12. Certain Actions Relating to Underlying Certificates........................44
ARTICLE VI TERMINATION...................................................................44
Section 6.01. Termination................................................................44
Section 6.02. Additional Termination Requirements........................................45
ARTICLE VII THE COMPANY AND THE CERTIFICATE ADMINISTRATOR.................................45
Section 7.01. Liability of the Company...................................................45
Section 7.02. Merger, Consolidation or Conversion of the Company.........................45
Section 7.03. Limitation on Liability of the Company and Others..........................46
Section 7.04. Company and Certificate Administrator Not to Resign........................47
Section 7.05. Successor Certificate Administrator........................................47
Section 7.06. Representation and Warranty of Company.....................................47
ARTICLE VIII MISCELLANEOUS PROVISIONS......................................................48
Section 8.01. Amendment..................................................................48
Section 8.02. Counterparts...............................................................49
Section 8.03. Limitation on Rights of Certificateholders.................................49
Section 8.04. Governing Law..............................................................50
Section 8.05. Notices....................................................................50
Section 8.06. Notices to the Rating Agencies.............................................50
Section 8.07. Severability of Provisions.................................................51
Section 8.08. Successors and Assigns.....................................................51
Section 8.09. Article and Section Headings...............................................51
-ii-
TABLE OF CONTENTS
Page
----
Exhibit A Form of Class A Certificate
Exhibit B Form of Class R Certificate
Exhibit C-1 Form of Transfer Affidavit and Agreement
Exhibit C-2 Form of Transferor Certificate
Exhibit D Pooling and Servicing Agreement
Exhibit E Form of Form 10K Certification
Exhibit F Form of Back-up Certification to Form 10K Certification
This TRUST AGREEMENT (this "Agreement"), dated as of December 12, 2003, is
among RESIDENTIAL ACCREDIT LOANS, INC., a Delaware corporation, as the company
(together with its permitted successors and assigns, the "Company"), RESIDENTIAL
FUNDING CORPORATION, a Delaware corporation, as certificate administrator
(together with its permitted successors and assigns, the "Certificate
Administrator"), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking
corporation, as Trustee (together with its permitted successors and assigns, the
"Trustee").
PRELIMINARY STATEMENT
The Company intends to sell the Trust Certificates (as defined herein), to
be issued hereunder in eight classes, which in the aggregate will evidence the
entire beneficial ownership interest in the Underlying Certificates (as defined
herein). As provided herein, the REMIC Administrator will make an election to
treat the entire segregated pool of assets described in the definition of Trust
Fund, as a real estate mortgage investment conduit for federal income tax
purposes, and such segregated pool of assets will be designated as the "REMIC."
The Class R Certificates will represent the sole class of "residual interests"
in the REMIC for purposes of the REMIC Provisions (as defined herein) under
federal income tax law. The REMIC Regular Certificates (as defined herein)
represent the "regular interests" in the REMIC. The "latest possible maturity
date" (determined solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii)) for each REMIC Regular Certificate shall be the first
Distribution Date that follows the stated maturity date for the Underlying
Certificates.
The following table sets forth the designation, type, Pass-Through Rate (as
defined herein), aggregate initial Certificate Principal Balance (as defined
herein), initial ratings and certain other features of each Class of Trust
Certificate comprising the interests in the Trust Fund (as defined herein).
Pass- Aggregate Initial
Through Certificate Minimum
Designation Rate Principal Balance Features(1) Xxxxx'x/S&P Denominations(2)
------------- ------- ----------------- ------------------- ----------- ----------------
Class A-1 3.1700% $59,000,000.00 Fixed Rate/PAC Aaa/AAA $25,000.00
Class A-2 6.6352% $18,583,000.00 Fixed Rate/PAC Aaa/AAA $25,000.00
Class A-3 4.0000% $11,020,000.00 Fixed Rate/PAC Aaa/AAA $25,000.00
Class A-4 4.0000% $25,000,000.00 Fixed Rate/PAC/ Aaa/AAA $25,000.00
Super Senior
Class A-5 (3) 4.0000% $43,449,297.00 Fixed Rate/PAC/ Aaa/AAA $25,000.00
Accretion Directed/
Component
Class A-6 4.0000% $20,159,164.00 Fixed Rate/Accrual/ Aaa/AAA $25,000.00
Companion
Class A-7 4.0000% $ 1,000,000.00 Fixed Rate/PAC/ Aaa/AAA $25,000.00
Senior Support
Class R 4.0000% $ 100.00 Fixed Rate/Residual Aaa/AAA (4)
----------
(1) The Class A Certificates shall be Book-Entry Certificates. The Class R
Certificates shall be delivered to the Holders thereof in physical form.
(2) The Trust Certificates, other than the Class R Certificates, shall be
issuable in minimum dollar denominations as indicated above (by Certificate
Principal Balance) and integral multiples of $1 in excess thereof.
(3) The Class A-5 Certificates are comprised of the following two components:
Initial Component
Component Certificate Principal Balance Pass-Through Rate Designations
----------- ----------------------------- ----------------- ------------------------
Class A-5-1 $23,317,297.00 4.00% Fixed Rate/PAC
Class A-5-2 $20,132,000.00 4.00% Fixed Rate/PAC/Accretion
Directed
(4) The Class R Certificates shall be issuable in minimum denominations of not
less than a 20% Percentage Interest, other than the de minimis portion
transferred to the REMIC Administrator on the Closing Date.
The Underlying Certificates have an aggregate principal balance as of the
Closing Date of $178,211,561.00.
In consideration for its services hereunder, the Certificate Administrator
and the Trustee have been paid an upfront fee.
All things necessary to make this Agreement a valid declaration of trust by
the Company in accordance with its terms have been done.
In consideration of the premises and the mutual agreements herein
contained, the Company, the Certificate Administrator and the Trustee agree as
follows:
-3-
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Accretion Directed Component: The Class A-5-2 Component.
Accretion Termination Date: The earlier to occur of (i) the
Distribution Date on which the aggregate Certificate Principal Balance of the
Accretion Directed Component has been reduced to zero and (ii) the Credit
Support Depletion Date.
Accrual Distribution Amount: On each Distribution Date on or prior to
the Accretion Termination Date, an amount equal to the aggregate amount of
Accrued Certificate Interest on the Class A-6 Certificates for such date, which
will be added to the Certificate Principal Balance of the Class A-6 Certificates
and that amount will be distributed to the holders of the Accretion Directed
Component as principal in reduction of the Certificate Principal Balance of the
Accretion Directed Component. The amount that is added to the Certificate
Principal Balance of the Class A-6 Certificates will accrue interest at a rate
of 4.00% per annum. On each Distribution Date on or after the Accretion
Termination Date, the entire Accrued Certificate Interest on the Class A-6
Certificates for that date will be payable to the Holders of the Class A-6
Certificates as interest to the extent that payments are not required to fully
reduce the Accretion Directed Component to zero on the Accretion Termination
Date; provided, however, that if the Accretion Termination Date is the Credit
Support Depletion Date, the entire Accrual Distribution Amount for that date
will be payable as interest to the holders of the Class A-6 Certificates.
Accrued Certificate Interest: With respect to any Distribution Date,
an amount equal to interest accrued during the related Interest Accrual Period
on the Certificate Principal Balance of the Trust Certificates of a Class
immediately prior to such Distribution Date at the related Pass-Through Rate
less any Class A Excess Loss Amount with respect to such Distribution Date and
less such Class' pro rata share of interest shortfalls, if any, allocated to the
Underlying Certificates immediately preceding such Distribution Date; including:
(1) any Prepayment Interest Shortfall to the extent not covered by the
Master Servicer pursuant to the terms of the Pooling and Servicing Agreement;
(2) the interest portions of Realized Losses allocated to the
Underlying Certificates;
(3) the interest portion of any advances that were made with respect
to delinquencies on the Mortgage Loans that were ultimately determined to be not
recoverable by the Servicer in accordance with the Pooling and Servicing
Agreement; and
(4) any other interest shortfalls on the Mortgage Loans not covered by
subordination (as set forth in the Pooling and Servicing Agreement), including
interest shortfalls relating to the Soldiers' and Sailors' Civil Relief Act of
1940, or similar legislation or regulations.
-4-
Such interest shortfalls and Class A Excess Loss Amounts will be
allocated among all of the Trust Certificates in proportion to their respective
amounts of Accrued Certificate Interest payable on such Distribution Date.
Accrued Certificate Interest on each Class of Trust Certificates will
be calculated on the basis of a 360 day year consisting of twelve 30-day months
and will be carried out to at least three decimal places.
Adverse REMIC Event: Shall have the meaning set forth in Section
3.01(f) hereof.
Affiliate: An "affiliate" of, or person "affiliated" with, a specific
person, is a person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
the person specified.
Agreement: This Trust Agreement and all amendments hereof and
supplements hereto.
Available Funds: With respect to any Distribution Date, an amount
equal to the amount received on the Underlying Certificates on such Distribution
Date less amounts withdrawn pursuant to Section 3.04(ii).
Book-Entry Certificate: Any Trust Certificate registered in the name
of the Depository or its nominee, and designated as such in the Preliminary
Statement hereto.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the State of New York, the State of
Michigan, the State of California or the State of Illinois (and such other state
or states in which the Custodial Account or the Trust Certificate Account are at
the time located) are required or authorized by law or executive order to be
closed.
Certificate Administrator: Residential Funding Corporation, in its
capacity as certificate administrator under this Agreement, or any successor
certificate administrator appointed under the terms of this Agreement.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate, as reflected
on the books of an indirect participating brokerage firm for which a Depository
Participant acts as agent, if any, and otherwise on the books of a Depository
Participant, if any, and otherwise on the books of the Depository.
Certificate Principal Balance: For any Class of Trust Certificates as
of any date of determination, an amount equal to the initial Certificate
Principal Balance of such Trust Certificate, plus, in the case of the Class A-6
Certificates, an amount equal to the aggregate Accrued Certificate Interest
added to the Certificate Principal Balance of the Class A-6 Certificates on each
Distribution Date on or prior to the Accretion Termination Date, reduced by the
aggregate of (a) all amounts allocable to principal previously distributed with
respect to such Trust Certificate and (b) any reductions in the Certificate
Principal Balance of such Trust Certificate due to allocations of the Class A
Loss Amounts to such Class of Trust Certificates.
-5-
Certificate Register: The register maintained pursuant to Section 4.02
hereof which shall provide for the registration of Trust Certificates and of
transfers and exchanges of Trust Certificates, as herein provided.
Certificate Registrar: The Trustee.
Certificateholder or Holder: The person in whose name a Trust
Certificate is registered in the Certificate Register, except that, solely for
the purpose of giving any consent or exercising any Voting Rights pursuant to
this Agreement, any Trust Certificate registered in the name of the Company or
any Affiliate shall be deemed not to be an Outstanding Certificate or taken into
account when calculating the Voting Rights of any Certificateholder.
All references herein to "Holder" or "Certificateholder" shall reflect
the rights of Certificate Owners as they may indirectly exercise such rights
through the Depository and participating members thereof, except as otherwise
specified herein; provided, however, that the Trustee shall be required to
recognize as a "Holder" or "Certificateholder" only the Person in whose name a
Trust Certificate is registered in the Certificate Register.
Class: Collectively, all of the Trust Certificates bearing the same
designation.
Class A Certificate: Any one of the Class X-0, Xxxxx X-0, Class A-3,
Class A-4, Class A-5, Class A-6 or Class A-7 Certificates executed and delivered
by the Trustee substantially in the form annexed hereto as Exhibit A evidencing
an interest designated as a "regular interest" in the REMIC for purposes of the
REMIC Provisions.
Class A Excess Loss Amount: On the Distribution Date on which the
Certificate Principal Balance of the Class A Certificates has been reduced to
zero, the greater of zero and the excess of the Class A Loss Amount not applied
in reduction of such Certificate Principal Balance of the Class A Certificates
over the Accrued Certificate Interest to be paid in respect of such Class A
Certificates.
Class A Loss Amount: With respect to the Class A Certificates and on
each Distribution Date, the excess of the Certificate Principal Balance of the
Class A Certificates over the Underlying Certificate Balance, in each case after
giving effect to distributions on or prior to such Distribution Date.
-6-
Class A-1/A-2 Planned Principal Balance: With respect to the Closing
Date and each Distribution Date, the amount set forth opposite that Distribution
Date in the following table:
--------------------------------------------------------------------------------------------
Closing Date Principal Balance $77,583,000.00 January 2006 $42,161,631.48
--------------------------------------------------------------------------------------------
December 2003 77,583,000.00 February 2006 40,189,852.87
--------------------------------------------------------------------------------------------
January 2004 77,583,000.00 March 2006 38,244,734.30
--------------------------------------------------------------------------------------------
February 2004 77,583,000.00 April 2006 36,325,918.92
--------------------------------------------------------------------------------------------
March 2004 77,583,000.00 May 2006 34,433,054.62
--------------------------------------------------------------------------------------------
April 2004 77,583,000.00 June 2006 32,565,793.93
--------------------------------------------------------------------------------------------
May 2004 77,583,000.00 July 2006 30,723,793.96
--------------------------------------------------------------------------------------------
June 2004 77,583,000.00 August 2006 28,906,716.38
--------------------------------------------------------------------------------------------
July 2004 77,583,000.00 September 2006 27,114,227.31
--------------------------------------------------------------------------------------------
August 2004 77,583,000.00 October 2006 25,345,997.29
--------------------------------------------------------------------------------------------
September 2004 77,583,000.00 November 2006 23,601,701.20
--------------------------------------------------------------------------------------------
October 2004 75,348,706.18 December 2006 21,881,018.24
--------------------------------------------------------------------------------------------
November 2004 72,913,311.92 January 2007 20,183,631.85
--------------------------------------------------------------------------------------------
December 2004 70,510,777.89 February 2007 18,509,229.63
--------------------------------------------------------------------------------------------
January 2005 68,140,665.37 March 2007 16,857,503.33
--------------------------------------------------------------------------------------------
February 2005 65,802,541.44 April 2007 15,228,148.79
--------------------------------------------------------------------------------------------
March 2005 63,495,978.87 May 2007 13,620,865.85
--------------------------------------------------------------------------------------------
April 2005 61,220,556.07 June 2007 12,035,358.32
--------------------------------------------------------------------------------------------
May 2005 58,975,857.04 July 2007 10,471,333.95
--------------------------------------------------------------------------------------------
June 2005 56,761,471.24 August 2007 8,928,510.69
--------------------------------------------------------------------------------------------
July 2005 54,576,993.55 September 2007 7,406,711.49
--------------------------------------------------------------------------------------------
August 2005 52,433,945.06 October 2007 5,905,538.83
--------------------------------------------------------------------------------------------
September 2005 50,323,184.13 November 2007 4,424,715.65
--------------------------------------------------------------------------------------------
October 2005 48,240,943.83 December 2007 2,963,968.57
--------------------------------------------------------------------------------------------
November 2005 46,186,842.74 January 2008 1,523,027.82
--------------------------------------------------------------------------------------------
December 2005 44,160,504.49 February 2008 101,627.21
--------------------------------------------------------------------------------------------
March 2008 and thereafter 0.00
--------------------------------------------------------------------------------------------
-7-
Class A-3 Planned Principal Balance: With respect to the Closing Date
and each Distribution Date, the amount set forth opposite that Distribution Date
in the following table:
--------------------------------------------------------------------------------------------
Closing Date Principal Balance $11,020,000.00 May 2006 $11,020,000.00
--------------------------------------------------------------------------------------------
December 2003 11,020,000.00 June 2006 11,020,000.00
--------------------------------------------------------------------------------------------
January 2004 11,020,000.00 July 2006 11,020,000.00
--------------------------------------------------------------------------------------------
February 2004 11,020,000.00 August 2006 11,020,000.00
--------------------------------------------------------------------------------------------
March 2004 11,020,000.00 September 2006 11,020,000.00
--------------------------------------------------------------------------------------------
April 2004 11,020,000.00 October 2006 11,020,000.00
--------------------------------------------------------------------------------------------
May 2004 11,020,000.00 November 2006 11,020,000.00
--------------------------------------------------------------------------------------------
June 2004 11,020,000.00 December 2006 11,020,000.00
--------------------------------------------------------------------------------------------
July 2004 11,020,000.00 January 2007 11,020,000.00
--------------------------------------------------------------------------------------------
August 2004 11,020,000.00 February 2007 11,020,000.00
--------------------------------------------------------------------------------------------
September 2004 11,020,000.00 March 2007 11,020,000.00
--------------------------------------------------------------------------------------------
October 2004 11,020,000.00 April 2007 11,020,000.00
--------------------------------------------------------------------------------------------
November 2004 11,020,000.00 May 2007 11,020,000.00
--------------------------------------------------------------------------------------------
December 2004 11,020,000.00 June 2007 11,020,000.00
--------------------------------------------------------------------------------------------
January 2005 11,020,000.00 July 2007 11,020,000.00
--------------------------------------------------------------------------------------------
February 2005 11,020,000.00 August 2007 11,020,000.00
--------------------------------------------------------------------------------------------
March 2005 11,020,000.00 September 2007 11,020,000.00
--------------------------------------------------------------------------------------------
April 2005 11,020,000.00 October 2007 11,020,000.00
--------------------------------------------------------------------------------------------
May 2005 11,020,000.00 November 2007 11,020,000.00
--------------------------------------------------------------------------------------------
June 2005 11,020,000.00 December 2007 11,020,000.00
--------------------------------------------------------------------------------------------
July 2005 11,020,000.00 January 2008 11,020,000.00
--------------------------------------------------------------------------------------------
August 2005 11,020,000.00 February 2008 11,020,000.00
--------------------------------------------------------------------------------------------
September 2005 11,020,000.00 March 2008 9,719,504.05
--------------------------------------------------------------------------------------------
October 2005 11,020,000.00 April 2008 8,336,399.15
--------------------------------------------------------------------------------------------
November 2005 11,020,000.00 May 2008 6,980,373.69
--------------------------------------------------------------------------------------------
December 2005 11,020,000.00 June 2008 5,657,448.89
--------------------------------------------------------------------------------------------
January 2006 11,020,000.00 July 2008 4,366,813.42
--------------------------------------------------------------------------------------------
February 2006 11,020,000.00 August 2008 3,174,959.62
--------------------------------------------------------------------------------------------
March 2006 11,020,000.00 September 2008 2,013,154.79
--------------------------------------------------------------------------------------------
April 2006 11,020,000.00 October 2008 880,649.36
--------------------------------------------------------------------------------------------
November 2008 and
thereafter 0.00
--------------------------------------------------------------------------------------------
-8-
Class A-4/A-7 Planned Principal Balance: With respect to the Closing
Date and each Distribution Date, the amount set forth opposite that Distribution
Date in the following table:
--------------------------------------------------------------------------------------------
Closing Date Principal Balance $26,000,000.00 February 2008 $26,000,000.00
--------------------------------------------------------------------------------------------
December 2003 26,000,000.00 March 2008 26,000,000.00
--------------------------------------------------------------------------------------------
January 2004 26,000,000.00 April 2008 26,000,000.00
--------------------------------------------------------------------------------------------
February 2004 26,000,000.00 May 2008 26,000,000.00
--------------------------------------------------------------------------------------------
March 2004 26,000,000.00 June 2008 26,000,000.00
--------------------------------------------------------------------------------------------
April 2004 26,000,000.00 July 2008 26,000,000.00
--------------------------------------------------------------------------------------------
May 2004 26,000,000.00 August 2008 26,000,000.00
--------------------------------------------------------------------------------------------
June 2004 26,000,000.00 September 2008 26,000,000.00
--------------------------------------------------------------------------------------------
July 2004 26,000,000.00 October 2008 26,000,000.00
--------------------------------------------------------------------------------------------
August 2004 26,000,000.00 November 2008 25,785,040.40
--------------------------------------------------------------------------------------------
September 2004 26,000,000.00 December 2008 24,723,497.84
--------------------------------------------------------------------------------------------
October 2004 26,000,000.00 January 2009 23,688,747.17
--------------------------------------------------------------------------------------------
November 2004 26,000,000.00 February 2009 22,680,118.52
--------------------------------------------------------------------------------------------
December 2004 26,000,000.00 March 2009 21,696,958.39
--------------------------------------------------------------------------------------------
January 2005 26,000,000.00 April 2009 20,738,629.21
--------------------------------------------------------------------------------------------
February 2005 26,000,000.00 May 2009 19,804,509.02
--------------------------------------------------------------------------------------------
March 2005 26,000,000.00 June 2009 18,893,991.04
--------------------------------------------------------------------------------------------
April 2005 26,000,000.00 July 2009 18,005,685.72
--------------------------------------------------------------------------------------------
May 2005 26,000,000.00 August 2009 17,160,557.72
--------------------------------------------------------------------------------------------
June 2005 26,000,000.00 September 2009 16,336,905.23
--------------------------------------------------------------------------------------------
July 2005 26,000,000.00 October 2009 15,534,183.90
--------------------------------------------------------------------------------------------
August 2005 26,000,000.00 November 2009 14,751,862.79
--------------------------------------------------------------------------------------------
September 2005 26,000,000.00 December 2009 13,989,423.99
--------------------------------------------------------------------------------------------
October 2005 26,000,000.00 January 2010 13,246,362.35
--------------------------------------------------------------------------------------------
November 2005 26,000,000.00 February 2010 12,522,185.14
--------------------------------------------------------------------------------------------
December 2005 26,000,000.00 March 2010 11,816,411.78
--------------------------------------------------------------------------------------------
January 2006 26,000,000.00 April 2010 11,128,573.49
--------------------------------------------------------------------------------------------
February 2006 26,000,000.00 May 2010 10,458,213.06
--------------------------------------------------------------------------------------------
March 2006 26,000,000.00 June 2010 9,804,884.55
--------------------------------------------------------------------------------------------
April 2006 26,000,000.00 July 2010 9,166,757.94
--------------------------------------------------------------------------------------------
May 2006 26,000,000.00 August 2010 8,581,094.10
--------------------------------------------------------------------------------------------
June 2006 26,000,000.00 September 2010 8,010,264.87
--------------------------------------------------------------------------------------------
July 2006 26,000,000.00 October 2010 7,453,865.98
--------------------------------------------------------------------------------------------
August 2006 26,000,000.00 November 2010 6,911,518.03
--------------------------------------------------------------------------------------------
September 2006 26,000,000.00 December 2010 6,382,854.78
--------------------------------------------------------------------------------------------
October 2006 26,000,000.00 January 2011 5,867,519.21
--------------------------------------------------------------------------------------------
November 2006 26,000,000.00 February 2011 5,365,163.20
--------------------------------------------------------------------------------------------
December 2006 26,000,000.00 March 2011 4,875,447.40
--------------------------------------------------------------------------------------------
January 2007 26,000,000.00 April 2011 4,398,040.97
--------------------------------------------------------------------------------------------
February 2007 26,000,000.00 May 2011 3,932,621.38
--------------------------------------------------------------------------------------------
March 2007 26,000,000.00 June 2011 3,478,874.21
--------------------------------------------------------------------------------------------
April 2007 26,000,000.00 July 2011 3,035,343.05
--------------------------------------------------------------------------------------------
May 2007 26,000,000.00 August 2011 2,632,799.73
--------------------------------------------------------------------------------------------
June 2007 26,000,000.00 September 2011 2,239,972.15
--------------------------------------------------------------------------------------------
July 2007 26,000,000.00 October 2011 1,856,604.73
--------------------------------------------------------------------------------------------
August 2007 26,000,000.00 November 2011 1,482,448.37
--------------------------------------------------------------------------------------------
September 2007 26,000,000.00 December 2011 1,117,260.30
--------------------------------------------------------------------------------------------
October 2007 26,000,000.00 January 2012 760,803.91
--------------------------------------------------------------------------------------------
November 2007 26,000,000.00 February 2012 412,848.60
--------------------------------------------------------------------------------------------
December 2007 26,000,000.00 March 2012 69,778.08
--------------------------------------------------------------------------------------------
January 2008 26,000,000.00 April 2012 and thereafter 0.00
--------------------------------------------------------------------------------------------
Class A-5-1 Component: The component designated as Class A-5-1 of the
Class A-5 Certificate set forth in the table in footnote (3) in the Preliminary
Statement hereto.
-9-
Class A-5-1 Component Planned Principal Balance: With respect to the
Closing Date and each Distribution Date, the amount set forth opposite that
Distribution Date in the following table:
--------------------------------------------------------------------------------------------
Closing Date Principal Balance $23,317,297.00 May 2004 $10,376,714.46
--------------------------------------------------------------------------------------------
December 2003 21,461,573.11 June 2004 7,844,866.82
--------------------------------------------------------------------------------------------
January 2004 19,480,456.30 July 2004 5,273,525.98
--------------------------------------------------------------------------------------------
February 2004 17,376,988.38 August 2004 2,736,859.68
--------------------------------------------------------------------------------------------
March 2004 15,155,136.87 September 2004 234,405.26
--------------------------------------------------------------------------------------------
April 2004 12,819,736.55 October 2004 and
thereafter 0.00
--------------------------------------------------------------------------------------------
Class A-5-2 Component: The component designated as Class A-5-2 of the
Class A-5 Certificate set forth in the table in footnote (3) in the Preliminary
Statement hereto.
Class A-5-2 Component Planned Principal Balance: With respect to the
Closing Date and each Distribution Date, the amount set forth opposite that
Distribution Date in the following table:
-------------------------------------------------------------------------------------------
Closing Date Principal Balance $20,132,000.00 February 2006 $4,603,102.41
-------------------------------------------------------------------------------------------
December 2003 19,567,420.71 March 2006 4,260,669.09
-------------------------------------------------------------------------------------------
January 2004 18,963,464.22 April 2006 3,933,824.85
-------------------------------------------------------------------------------------------
February 2004 18,322,286.26 May 2006 3,622,158.42
-------------------------------------------------------------------------------------------
March 2004 17,646,491.63 June 2006 3,325,267.69
-------------------------------------------------------------------------------------------
April 2004 16,939,088.71 July 2006 3,042,759.45
-------------------------------------------------------------------------------------------
May 2004 16,203,549.28 August 2006 2,774,249.28
-------------------------------------------------------------------------------------------
June 2004 15,448,068.65 September 2006 2,519,361.31
-------------------------------------------------------------------------------------------
July 2004 14,691,622.14 October 2006 2,277,728.07
-------------------------------------------------------------------------------------------
August 2004 13,961,228.64 November 2006 2,048,990.34
-------------------------------------------------------------------------------------------
September 2004 13,256,249.14 December 2006 1,832,796.92
-------------------------------------------------------------------------------------------
October 2004 12,576,058.33 January 2007 1,628,804.55
-------------------------------------------------------------------------------------------
November 2004 11,920,044.35 February 2007 1,436,677.66
-------------------------------------------------------------------------------------------
December 2004 11,287,608.52 March 2007 1,256,088.27
-------------------------------------------------------------------------------------------
January 2005 10,678,165.06 April 2007 1,086,715.83
-------------------------------------------------------------------------------------------
February 2005 10,091,140.85 May 2007 928,247.03
-------------------------------------------------------------------------------------------
March 2005 9,525,975.14 June 2007 780,375.69
-------------------------------------------------------------------------------------------
April 2005 8,982,119.37 July 2007 642,802.58
-------------------------------------------------------------------------------------------
May 2005 8,459,036.84 August 2007 515,234.02
-------------------------------------------------------------------------------------------
June 2005 7,956,202.55 September 2007 397,361.74
-------------------------------------------------------------------------------------------
July 2005 7,473,102.89 October 2007 288,929.94
-------------------------------------------------------------------------------------------
August 2005 7,009,235.48 November 2007 197,232.56
-------------------------------------------------------------------------------------------
September 2005 6,564,108.90 December 2007 123,807.44
-------------------------------------------------------------------------------------------
October 2005 6,137,242.46 January 2008 67,986.30
-------------------------------------------------------------------------------------------
November 2005 5,728,166.02 February 2008 29,120.06
-------------------------------------------------------------------------------------------
December 2005 5,336,419.77 March 2008 6,578.34
-------------------------------------------------------------------------------------------
January 2006 4,961,545.34 April 2008 and thereafter 0.00
-------------------------------------------------------------------------------------------
Class R Certificate: Any one of the Class R Certificates executed and
delivered hereunder by the Trustee substantially in the form annexed hereto as
Exhibit B, evidencing an interest designated as the "residual interest" in the
Trust Fund for purposes of the REMIC Provisions.
Closing Date: December 12, 2003.
-10-
Code: The Internal Revenue Code of 1986, as amended.
Company: Residential Accredit Loans, Inc. or any successors in
interest.
Corporate Trust Office: The principal office of the Trustee at which
at any particular time its corporate trust business with respect to this
Agreement shall be administered, which office at the date of the execution of
this instrument is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx
00000-0000, Attention: Residential Funding Corporation Series 2003-QR24.
Credit Support Depletion Date: The date on which the principal
balances of the 2003-QS13 Certificates, Class M and Class B, have been reduced
to zero.
Custodial Account: The custodial account or accounts created and
maintained pursuant to Section 3.07 of the Pooling and Servicing Agreement in
the name of a depository institution, as custodian for the holders of the
Underlying Certificates, for the holders of certain other interests in mortgage
loans serviced or sold by the Certificate Administrator or owned by the
Certificate Administrator, into which the amounts set forth in Section 3.07 of
the Pooling and Servicing Agreement shall be deposited directly. Any such
account or accounts shall be an Eligible Account.
Definitive Certificate: Any definitive, fully registered Trust
Certificate.
Depository: The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Trust Certificates that are to be Book-Entry Certificates is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the Uniform Commercial Code of the State of
New York and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Distribution Date: The 25th day of each month, or if such 25th day is
not a Business Day, the next succeeding Business Day, commencing on the First
Distribution Date.
Eligible Account: An account that is any of the following: (i)
maintained with a depository institution the debt obligations of which have been
rated by each Rating Agency in its highest rating available, or (ii) an account
or accounts in a depository institution in which such accounts are fully insured
to the limits established by the FDIC, provided that any deposits not so insured
shall, to the extent acceptable to each Rating Agency, as evidenced in writing,
be maintained such that (as evidenced by an Opinion of Counsel delivered to the
Trustee and each Rating Agency) the registered Holders of Trust Certificates
have a claim with respect to the funds in such account or a perfected first
security interest against any collateral securing such funds that is superior to
claims of any other depositors or creditors of the depository institution with
which such account is maintained, or (iii) in the case of the Custodial Account,
a trust account or accounts maintained in the corporate trust department of Bank
One, National Association, or (iv) in the case of the Trust Certificate Account,
a trust account or accounts maintained in the corporate trust division of the
Trustee, or (v) an account or accounts of a depository institution acceptable to
each Rating Agency
-11-
(as evidenced in writing by each Rating Agency that use of any such account as
the Custodial Account or the Trust Certificate Account will not reduce the
rating assigned to any Class of Trust Certificates by such Rating Agency below
the lower of the then-current rating or the rating assigned to such Trust
Certificates as of the Closing Date by such Rating Agency).
ERISA: The Employment Retirement Income Security Act of 1974, as
amended.
Exchange Act: Securities Exchange Act of 1934, as amended.
FDIC: The Federal Deposit Insurance Corporation or any successor.
First Distribution Date: December 26, 2003.
Independent: When used with respect to any specified Person, such a
Person who (i) is in fact independent of the Company, (ii) does not have any
direct financial interest in the Company or in an Affiliate, and (iii) is not
connected with the Company as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Initial Certificate Principal Balance: With respect to each Class of
Trust Certificates, the Certificate Principal Balance of such Class of Trust
Certificates as of the Closing Date, as set forth in the Preliminary Statement
hereto.
Interest Accrual Period: With respect to any Distribution Date and for
all Classes of Trust Certificates, the calendar month preceding the month in
which such Distribution Date occurs.
Interest Distribution Amount: With respect to any Distribution Date,
the aggregate amount of Accrued Certificate Interest (other than the Accrual
Distribution Amount) to be paid to the Certificateholders for such Distribution
Date.
Master Servicer: Residential Funding Corporation, in its capacity as
master servicer under the Pooling and Servicing Agreement, or any successor
master servicer appointed under the terms of the Pooling and Servicing
Agreement.
Maturity Date: With respect to each Class of Trust Certificates, the
Distribution Date in July of 2033.
Moody's: Xxxxx'x Investors Service, Inc. or any successor thereto.
Mortgage Loans: The mortgage loans in which the Underlying
Certificates evidence a beneficial ownership interest.
Non-United States Person: Any Person other than a United States
Person.
Notice of Final Distribution: With respect to the Underlying
Certificates, the notice to be provided pursuant to the Pooling and Servicing
Agreement to the effect that final distribution on the Underlying Certificates
shall be made only upon presentation and surrender thereof.
Notice of Termination: Any of the notices given by the Trustee
pursuant to Section 6.01(b).
-12-
Officer's Certificate: A certificate signed by the Chairman of the
Board, the President or a Vice President or Assistant Vice President, or a
Director or Managing Director, and by the Treasurer, the Secretary, or one of
the Assistant Treasurers or Assistant Secretaries of the Company or the
Certificate Administrator, as the case may be, and delivered to the Trustee, as
required by this Agreement.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee and the Certificate Administrator, who may be counsel for the Company or
the Certificate Administrator, provided that any opinion of counsel (i) referred
to in the definition of "Disqualified Organization" in the Pooling and Servicing
Agreement or (ii) relating to the qualification of any REMIC formed under the
Pooling and Servicing Agreement, this Agreement or in compliance with the REMIC
Provisions must, unless otherwise specified, be an opinion of Independent
counsel.
Outstanding Certificates: With respect to any of the Trust
Certificates, as of the date of determination, all Trust Certificates
theretofore executed and delivered under this Agreement except:
(i) Trust Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) Trust Certificates in exchange for which or in lieu of which
other Trust Certificates have been executed and delivered pursuant to this
Agreement unless proof satisfactory to the Trustee is presented that any such
Trust Certificates are held by a holder in due course.
Ownership Interest: As to any Trust Certificate, any ownership or
security interest in such Trust Certificate, including any interest in such
Trust Certificate as the Holder thereof and any other interest therein, whether
direct or indirect, legal or beneficial, as owner or as pledgee.
PAC Balance: As of any date of determination, the sum of the
Certificate Principal Balances of the PAC Certificates (other than the Class
A-5-2 Component).
PAC Certificates: The Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5 and Class A-7 Certificates.
PAC Distribution Amount: For any Distribution Date an amount equal to
the excess, if any, of the PAC Balance over the applicable PAC Planned Principal
Balance for that Distribution Date prior to any distribution on the PAC
Certificates (other than the Class A-5-2 Component) on that Distribution Date.
-13-
PAC Planned Principal Balance: With respect to the Closing Date and
each Distribution Date, the amount set forth opposite that Distribution Date in
the following table:
---------------------------------------------------------------------------------------------
Closing Date Principal Balance $137,920,297.00 February 2008 $37,121,627.21
---------------------------------------------------------------------------------------------
December 2003 136,064,573.11 March 2008 35,719,504.05
---------------------------------------------------------------------------------------------
January 2004 134,083,456.30 April 2008 34,336,399.15
---------------------------------------------------------------------------------------------
February 2004 131,979,988.38 May 2008 32,980,373.69
---------------------------------------------------------------------------------------------
March 2004 129,758,136.87 June 2008 31,657,448.89
---------------------------------------------------------------------------------------------
April 2004 127,422,736.55 July 2008 30,366,813.42
---------------------------------------------------------------------------------------------
May 2004 124,979,714.46 August 2008 29,174,959.62
---------------------------------------------------------------------------------------------
June 2004 122,447,866.82 September 2008 28,013,154.79
---------------------------------------------------------------------------------------------
July 2004 119,876,525.98 October 2008 26,880,649.36
---------------------------------------------------------------------------------------------
August 2004 117,339,859.68 November 2008 25,785,040.40
---------------------------------------------------------------------------------------------
September 2004 114,837,405.26 December 2008 24,723,497.84
---------------------------------------------------------------------------------------------
October 2004 112,368,706.18 January 2009 23,688,747.17
---------------------------------------------------------------------------------------------
November 2004 109,933,311.92 February 2009 22,680,118.52
---------------------------------------------------------------------------------------------
December 2004 107,530,777.89 March 2009 21,696,958.39
---------------------------------------------------------------------------------------------
January 2005 105,160,665.37 April 2009 20,738,629.21
---------------------------------------------------------------------------------------------
February 2005 102,822,541.44 May 2009 19,804,509.02
---------------------------------------------------------------------------------------------
March 2005 100,515,978.87 June 2009 18,893,991.04
---------------------------------------------------------------------------------------------
April 2005 98,240,556.07 July 2009 18,005,685.72
---------------------------------------------------------------------------------------------
May 2005 95,995,857.04 August 2009 17,160,557.72
---------------------------------------------------------------------------------------------
June 2005 93,781,471.24 September 2009 16,336,905.23
---------------------------------------------------------------------------------------------
July 2005 91,596,993.55 October 2009 15,534,183.90
---------------------------------------------------------------------------------------------
August 2005 89,453,945.06 November 2009 14,751,862.79
---------------------------------------------------------------------------------------------
September 2005 87,343,184.13 December 2009 13,989,423.99
---------------------------------------------------------------------------------------------
October 2005 85,260,943.83 January 2010 13,246,362.35
---------------------------------------------------------------------------------------------
November 2005 83,206,842.74 February 2010 12,522,185.14
---------------------------------------------------------------------------------------------
December 2005 81,180,504.49 March 2010 11,816,411.78
---------------------------------------------------------------------------------------------
January 2006 79,181,631.48 April 2010 11,128,573.49
---------------------------------------------------------------------------------------------
February 2006 77,209,852.87 May 2010 10,458,213.06
---------------------------------------------------------------------------------------------
March 2006 75,264,734.30 June 2010 9,804,884.55
---------------------------------------------------------------------------------------------
April 2006 73,345,918.92 July 2010 9,166,757.94
---------------------------------------------------------------------------------------------
May 2006 71,453,054.62 August 2010 8,581,094.10
---------------------------------------------------------------------------------------------
June 2006 69,585,793.93 September 2010 8,010,264.87
---------------------------------------------------------------------------------------------
July 2006 67,743,793.96 October 2010 7,453,865.98
---------------------------------------------------------------------------------------------
August 2006 65,926,716.38 November 2010 6,911,518.03
---------------------------------------------------------------------------------------------
September 2006 64,134,227.31 December 2010 6,382,854.78
---------------------------------------------------------------------------------------------
October 2006 62,365,997.29 January 2011 5,867,519.21
---------------------------------------------------------------------------------------------
November 2006 60,621,701.20 February 2011 5,365,163.20
---------------------------------------------------------------------------------------------
December 2006 58,901,018.24 March 2011 4,875,447.40
---------------------------------------------------------------------------------------------
January 2007 57,203,631.85 April 2011 4,398,040.97
---------------------------------------------------------------------------------------------
February 2007 55,529,229.63 May 2011 3,932,621.38
---------------------------------------------------------------------------------------------
March 2007 53,877,503.33 June 2011 3,478,874.21
---------------------------------------------------------------------------------------------
April 2007 52,248,148.79 July 2011 3,035,343.05
---------------------------------------------------------------------------------------------
May 2007 50,640,865.85 August 2011 2,632,799.73
---------------------------------------------------------------------------------------------
June 2007 49,055,358.32 September 2011 2,239,972.15
---------------------------------------------------------------------------------------------
July 2007 47,491,333.95 October 2011 1,856,604.73
---------------------------------------------------------------------------------------------
August 2007 45,948,510.69 November 2011 1,482,448.37
---------------------------------------------------------------------------------------------
September 2007 44,426,711.49 December 2011 1,117,260.30
---------------------------------------------------------------------------------------------
October 2007 42,925,538.83 January 2012 760,803.91
---------------------------------------------------------------------------------------------
November 2007 41,444,715.65 February 2012 412,848.60
---------------------------------------------------------------------------------------------
December 2007 39,983,968.57 March 2012 69,778.08
---------------------------------------------------------------------------------------------
January 2008 38,543,027.82 April 2012 and thereafter 0.00
---------------------------------------------------------------------------------------------
Pass-Through Rate: For all Classes of Trust Certificates, the per
annum rate set forth in the Pass-Through Rate column in the first table in the
Preliminary Statement hereto.
-14-
Percentage Interest: With respect to any Trust Certificate (other than
a Class R Certificate), the undivided percentage ownership interest in the
related Class evidenced by such Trust Certificate, which percentage ownership
interest shall be equal to the Initial Certificate Principal Balance thereof
divided by the aggregate Initial Certificate Principal Balance of all the Trust
Certificates of the same Class. With respect to a Class R Certificate, the
interest in distributions to be made with respect to such Class evidenced
thereby, expressed as a percentage, as stated on the face of each such Trust
Certificate.
Permitted Transferee: Any Transferee of a Class R Certificate other
than (i) the United States, any state or any political subdivision thereof, any
possession of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by any such
governmental unit), (ii) a foreign government, international organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code, (v) an electing large
partnership under Section 775 of the Code and (vi) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Class R Certificate by such Person may cause the
Trust Fund or any Person having an Ownership Interest in any Class of Trust
Certificates, other than such Person, to incur a liability for any tax imposed
under the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Class R Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Pooling and Servicing Agreement: The Series Supplement, dated as of
July 1, 2003 together with the Standard Terms of Pooling and Servicing
Agreement, dated as of March 1, 2003, and attached as Exhibit D hereto, among
the Company, the Certificate Administrator, and the Trustee, as such agreement
is amended from time to time.
Prepayment Assumption: The blended percentage of the standard
prepayment assumption and the constant prepayment rate set forth in the
following sentence with respect to the Mortgage Loans. The Prepayment Assumption
assumes a constant prepayment rate of the Mortgage Loans of 10.0% per annum of
the then outstanding principal balance of such Mortgage Loans in the first month
of the life of the mortgage loans, increasing by an additional 1.3636364% per
annum in each succeeding month until the twelfth month, and a constant 25.0% per
annum rate of prepayment thereafter for the life of the Underlying Certificate.
Prepayment Interest Shortfall: As to any Distribution Date and the
Underlying Certificates that received an interest distribution on the related
Distribution Date that was reduced pursuant to the terms of the Pooling and
Servicing Agreement because of a principal prepayment in full on a Mortgage Loan
or Mortgage Loans relating to the Underlying Certificates, the amount of such
reduction.
-00-
Xxxxxxxxx Xxxxxxxxxxxx Xxxxxx: With respect to any Distribution Date,
the balance of the Available Funds remaining after the Accrual Distribution
Amount and the Interest Distribution Amount have been distributed.
Rating Agencies: Xxxxx'x and S&P.
Realized Losses: Losses on the Mortgage Loans applied in reduction of
the aggregate principal balance of a 2003-QS13 Certificate that is not
accompanied by a cash payment in respect of such reduction.
Record Date: With respect to any Distribution Date, other than the
First Distribution Date, the close of business on the last day of the month
preceding such Distribution Date, and with respect to the First Distribution
Date, the Closing Date.
Regular Certificates: The Class A Certificates.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code. As used herein, the term "the REMIC" shall mean the
segregated pool of assets, with respect to which a real estate mortgage
investment conduit election is made pursuant to this Agreement, consisting of:
(a) the Underlying Certificates,
(b) all payments on and collections in respect of the Underlying
Certificates due after the Closing Date as shall be on deposit in the Trust
Certificate Account and identified as belonging to the Trust Fund, and
(c) all proceeds of clauses (a) and (b) above.
REMIC Administrator: Residential Funding Corporation, provided that if
Residential Funding Corporation is found by a court of competent jurisdiction to
no longer be able to fulfill its obligations as REMIC Administrator under this
Agreement, the Certificate Administrator or Trustee acting as Certificate
Administrator shall appoint a successor REMIC Administrator, subject to
assumption of the REMIC Administrator obligations under this Agreement.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
temporary and final regulations (or, to the extent not inconsistent with such
temporary or final regulations, proposed regulations) and published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
REMIC Regular Certificate: Any Trust Certificate, other than a Class R
Certificate.
Responsible Officer: When used with respect to the Trustee, any
officer of the Corporate Trust Office of the Trustee, including any managing
director, senior vice president, any vice president, any assistant vice
president, any assistant secretary, any associate with particular responsibility
for this transaction, or any other officer of the Trustee customarily performing
-16-
functions similar to those performed by any of the above designated officers to
whom, with respect to a particular matter, such matter is referred.
S&P: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or its successor in interest.
Tax Returns: The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of any REMIC formed under the Pooling and Servicing Agreement and
under the REMIC Provisions, together with any and all other information, reports
or returns that may be required to be furnished to the Certificateholders or
filed with the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal, state or local tax laws.
Termination Date: The Distribution Date following the Distribution
Date on which the Underlying Certificate Balance has been reduced to zero.
Transfer: Any direct or indirect transfer, sale, pledge, hypothecation
or other form of assignment of any Ownership Interest in a Trust Certificate.
Transferee: Any Person who is acquiring by Transfer any Ownership
Interest in a Trust Certificate.
Transferor: Any Person who is disposing by Transfer of any Ownership
Interest in a Trust Certificate.
Trust Certificate: Any Class A Certificate or Class R Certificate.
Trust Certificate Account: The separate account or accounts created
and maintained pursuant to Section 3.03 hereof, which shall be entitled
"Deutsche Bank Trust Company Americas, as trustee, in trust for the registered
holders of Residential Accredit Loans, Inc., Mortgage Trust Certificates, Series
2003-QR24" and which must be an Eligible Account. Funds deposited in the Trust
Certificate Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in Article III hereof.
Trustee: Deutsche Bank Trust Company Americas or its successor in
interest, or any successor trustee appointed as herein provided.
Trust Fund: The corpus of the trust created by and to be administered
under this Agreement consisting of: (i) the Underlying Certificates, (ii) all
distributions thereon after but not including the Distribution Date occurring in
December 2003, and (iii) the Trust Certificate Account and such assets that are
deposited therein from time to time, together with any and all income, proceeds
and payments with respect thereto.
2003-QS13 Certificates: Residential Accredit Loans, Inc. Mortgage
Asset-Backed Pass-Through Certificates, Series 2003-QS13.
-17-
Underlying Certificates: Collectively, (i) a certificate that
represents a 98.5% interest in the Residential Accredit Loans, Inc. Series
2003-QS13 Mortgage Asset-Backed Certificates, Class A-1, (ii) a certificate that
represents a 98.4999993269% interest in the Residential Accredit Loans, Inc.
Series 2003-QS13 Mortgage Asset-Backed Certificates, Class A-3, (iii) a
certificate that represents a 44.9924430873% interest in the Residential
Accredit Loans, Inc. Series 2003-QS13 Mortgage Asset-Backed Certificates, Class
A-4 and (iv) a certificate that represents a 72.9999997821% interest in the
Residential Accredit Loans, Inc. Series 2003-QS13 Mortgage Asset-Backed
Certificates, Class A-9. The outstanding principal balances, as of the Closing
Date, of the Residential Accredit Loans, Inc. Series 2003-QS13 Mortgage
Asset-Backed Certificates, Class A-1, Class A-3, Class A-4 and Class A-9
comprising the Underlying Certificates are set forth in the table below:
Underlying Certificate Principal Balance
---------------------- -----------------
Class A-1 $35,312,000.00
Class A-3 $69,825,371.53
Class A-4 $ 9,549,269.60
Class A-9 $96,376,439.71
Underlying Certificate Balance: With respect to the Underlying
Certificates, as of any Distribution Date (following all distributions to be
made with respect to the Underlying Certificate on such Distribution Date), and
as of any date of determination thereafter until the next succeeding
Distribution Date, the aggregate outstanding principal balance of the Underlying
Certificates, determined by reference to the Underlying Distribution Date
Statement sent to the Trustee as Underlying Certificateholder, relating to such
Distribution Date, which is to be determined in accordance with the terms of the
Pooling and Servicing Agreement.
Underlying Certificateholder: The registered owner of the Underlying
Certificates.
Underlying Distribution Date Statement: With respect to the Underlying
Certificates and any Distribution Date, the monthly remittance report forwarded
to the holder thereof with respect to such Distribution Date pursuant to the
terms of the Pooling and Servicing Agreement.
United States Person: A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
Voting Rights: Ninety-nine percent (99%) of all of the Voting Rights
shall be allocated among Holders of Trust Certificates, other than the Class R
Certificates, in proportion to the outstanding Certificate Principal Balances of
their respective Trust Certificates; one percent (1%) of all Voting Rights shall
be allocated among the Holders of the Class R Certificates in accordance with
their respective Percentage Interests.
Additionally, all references to the words "real estate mortgage investment
conduit" herein shall have the meaning assigned to such words in Section 860D of
the Code.
-18-
ARTICLE II
CONVEYANCE OF THE UNDERLYING CERTIFICATES;
ORIGINAL ISSUANCE OF TRUST CERTIFICATES
Section 2.01. Conveyance of the Underlying Certificates.
(a) The Company, concurrently with the execution and delivery hereof,
does hereby sell, transfer, assign, set-over and otherwise convey to the
Trustee, in trust, for the use and benefit of the Certificateholders, without
recourse, all the right, title and interest of the Company in and to the
Underlying Certificates and all other assets constituting the Trust Fund. Such
assignment includes, without limitation, all amounts payable to and all rights
of the Underlying Certificateholder pursuant to the Pooling and Servicing
Agreement.
In connection with such transfer and assignment, on the Closing Date
the Company will deliver to, and deposit with, the Trustee the Underlying
Certificates, together with a duly issued and authenticated certificate or
certificates for the Underlying Certificates, evidencing the entire interest in
such Underlying Certificates, with appropriate endorsements and other
documentation sufficient under the Pooling and Servicing Agreement to transfer
such Underlying Certificates to the Trustee.
Notwithstanding the foregoing, to the extent that the Underlying
Certificates are Book-Entry Certificate, delivery of the Underlying Certificates
will be satisfied if the Company meets the requirements of the Depository to
sell, transfer, assign, set-over and otherwise convey to the Trustee the
Underlying Certificates in accordance with the rules of the Depository and
applicable provisions of the Uniform Commercial Code as in force in the relevant
jurisdiction from time to time.
The Trustee hereby acknowledges the receipt by it of the Underlying
Certificates and the other documents and instruments referenced above, and
declares that it holds and will hold the Underlying Certificates, and such other
documents and instruments, and all other assets and documents included in the
Trust Fund, in trust for the exclusive use and benefit of all present and future
Certificateholders.
(b) It is intended that the conveyance by the Company to the Trustee
of the Underlying Certificates as provided for in this Section 2.01 be construed
as a sale by the Company to the Trustee of the Underlying Certificates for the
benefit of the Certificateholders. Further, it is not intended that such
conveyance be deemed to be a pledge of the Underlying Certificates by the
Company to the Trustee to secure a debt or other obligation of the Company.
Nonetheless, (a) this Agreement is intended to be and hereby is a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (b) the conveyance provided for in Section 2.01 shall be deemed to
be, and hereby is, a grant by the Company to the Trustee of a security interest
in all of the Company's right (including the power to convey title thereto),
title and interest, whether now owned or hereafter acquired, in and to any and
all general intangibles, payment intangibles, accounts, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property and other property
of whatever kind or description now existing or hereafter acquired consisting
of, arising from or relating to any of the following: (A)
-19-
Underlying Certificates, (B) all amounts payable pursuant to the holders of the
Underlying Certificates in accordance with the terms thereof of the Pooling and
Servicing Agreement, and (C) all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts from time to time held or
invested in the Trust Certificate Account, whether in the form of cash,
instruments, securities or other property; (c) the possession by the Trustee or
any agent of the Trustee of the Underlying Certificates or such other items of
property as constitute instruments, money, payment intangibles, negotiable
documents, goods, deposit accounts, letters of credit, advices of credit,
investment property, certificated securities or chattel paper shall be deemed to
be "possession by the secured party," or possession by a purchaser or a person
designated by such secured party, for purposes of perfecting the security
interest pursuant to the Minnesota Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction as in effect (including,
without limitation, Sections 8-106, 9-313 and 9-106 thereof); and (d)
notifications to persons holding such property, and acknowledgments, receipts or
confirmations from persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, securities
intermediaries, bailees or agents of, or persons holding for (as applicable) the
Trustee for the purpose of perfecting such security interest under applicable
law.
(c) The Company, the Certificate Administrator and the Trustee shall,
to the extent consistent with this Agreement, take such reasonable actions as
may be necessary to ensure that, if this Agreement were determined to create a
security interest in the Underlying Certificates and the other property
described above, such security interest would be determined to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of this Agreement. Without limiting the generality
of the foregoing, the Company shall prepare and deliver to the Trustee not less
than 15 days prior to any filing date and, the Trustee shall forward for filing,
or shall cause to be forwarded for filing, at the expense of the Company, all
filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect the Trustee's security interest in or lien on the Underlying
Certificates, as evidenced by an Officers' Certificate of the Company, including
without limitation (x) continuation statements, and (y) such other statements as
may be occasioned by (1) any change of name of the Company or the Trustee (such
preparation and filing shall be at the expense of the Trustee, if occasioned by
a change in the Trustee's name) or (2) any change of location of the place of
business or the chief executive office of the Company.
Section 2.02. Issuance of Trust Certificates.
The Trustee acknowledges the transfer, delivery and assignment to it
of the Underlying Certificates, together with the assignment to it of all other
assets included in the Trust Fund, and declares that it holds and will hold the
Underlying Certificates and all other assets included in the Trust Fund in trust
for the benefit of all present and future Certificateholders. Concurrently with
such transfer and delivery, the Trustee has duly executed, authenticated and
delivered, to or upon the order of the Company, the Trust Certificates in
authorized denominations, registered in such names as the Company has requested,
and such Trust Certificates evidence the beneficial interest in the entire
REMIC.
-20-
Section 2.03. [Reserved].
Section 2.04. [Reserved].
Section 2.05. Purposes and Powers of the Trust Fund.
The purpose of the trust, as created hereunder, is to engage in the
following activities:
(a) to sell the Trust Certificates to the Company in exchange for the
Underlying Certificates;
(b) to enter into and perform its obligations under this Agreement;
(c) to engage in those activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto or connected
therewith; and
(d) subject to compliance with this Agreement, to engage in such other
activities as may be required in connection with conservation of the Trust Fund
and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing activities.
The trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
while any Trust Certificate is outstanding without the consent of the
Certificateholders evidencing a majority of the aggregate Voting Rights of the
Trust Certificates.
ARTICLE III
ADMINISTRATION OF THE UNDERLYING CERTIFICATES;
PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01. Administration of the Trust Fund and the Underlying
Certificates.
(a) The REMIC Administrator shall make an election to treat the Trust
Fund as a real estate mortgage investment conduit under the Code and, if
necessary, under applicable state law. The assets of the REMIC are set forth in
this Agreement. Such election will be made on Form 1066 or other appropriate
federal tax or information return (including Form 8811) or any appropriate state
return for the taxable year ending on the last day of the calendar year in which
the Trust Certificates are issued. For the purposes of the REMIC elections in
respect of the Trust Fund, the Trust Certificates and interests to be designated
as the "regular interests" and sole class of "residual interests" in the REMIC
are set forth below.
The Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class A-5, Class
A-6 and Class A-7 Certificates will be "regular interests" in the REMIC, and the
Class R Certificates will be the sole class of "residual interests" therein for
purposes of the REMIC Provisions (as defined herein) under federal income tax
law.
-21-
(b) The Closing Date is hereby designated as the "startup day" of the
Trust Fund within the meaning of Section 860G(a)(9) of the Code.
(c) The REMIC Administrator shall hold a Class R Certificate
representing a 0.01% Percentage Interest of the Class R Certificates and shall
be designated as "the tax matters person" with respect to the REMIC in the
manner provided under Treasury regulations section 1.860F-4(d) and Treasury
regulations section 301.6231(a)(7)-1. The REMIC Administrator, as tax matters
person, shall (i) act on behalf of the REMIC in relation to any tax matter or
controversy involving the Trust Fund and (ii) represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority with respect thereto. The legal expenses,
including without limitation attorneys' or accountants' fees, and costs of any
such proceeding and any liability resulting therefrom shall be expenses of the
Trust Fund and the REMIC Administrator shall be entitled to reimbursement
therefor out of amounts attributable to the Underlying Certificates on deposit
in the Trust Certificate Account as provided by Section 3.04 unless such legal
expenses and costs are incurred by reason of the REMIC Administrator's willful
misfeasance, bad faith or gross negligence. If the REMIC Administrator is no
longer the Certificate Administrator hereunder, at its option the REMIC
Administrator may continue its duties as REMIC Administrator and shall be paid
reasonable compensation not to exceed $3,000 per year by any successor
certificate administrator hereunder for so acting as the REMIC Administrator.
(d) The REMIC Administrator shall prepare or cause to be prepared all
of the Tax Returns that it determines are required with respect to the REMIC and
deliver such Tax Returns in a timely manner to the Trustee and the Trustee shall
sign and file such Tax Returns in a timely manner. The expenses of preparing
such returns shall be borne by the REMIC Administrator without any right of
reimbursement therefor. The REMIC Administrator agrees to indemnify and hold
harmless the Trustee with respect to any tax or liability arising from the
Trustee's signing of Tax Returns that contain errors or omissions. The Trustee
and Certificate Administrator shall promptly provide the REMIC Administrator
with such information as the REMIC Administrator may from time to time request
for the purpose of enabling the REMIC Administrator to prepare Tax Returns.
(e) The REMIC Administrator shall provide (i) to any Transferor of a
Class R Certificate such information as is necessary for the application of any
tax relating to the transfer of a Class R Certificate to any Person who is not a
Permitted Transferee, (ii) to the Trustee, and the Trustee shall forward to the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption) and
(iii) to the Internal Revenue Service the name, title, address and telephone
number of the person who will serve as the representative of the REMIC.
(f) The Certificate Administrator and the REMIC Administrator shall
take such actions and shall cause the REMIC created hereunder to take such
actions as are reasonably within the Certificate Administrator's or the REMIC
Administrator's control and the scope of its duties more specifically set forth
herein as shall be necessary or desirable to maintain the status of the REMIC as
a real estate mortgage investment conduit under the REMIC Provisions (and the
Trustee shall assist the Certificate Administrator and the REMIC Administrator,
to the extent reasonably requested by the Certificate Administrator and the
REMIC Administrator to do so). The Certificate
-22-
Administrator and the REMIC Administrator shall not knowingly or intentionally
take any action, cause the Trust Fund to take any action or fail to take (or
fail to cause to be taken) any action reasonably within their respective control
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could (i) endanger the status of any portion of the REMIC as a real estate
mortgage investment conduit or (ii) result in the imposition of a tax upon the
REMIC (including but not limited to the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a real
estate mortgage investment conduit set forth in Section 860G(d) of the Code)
(either such event, in the absence of an Opinion of Counsel or the
indemnification referred to in this sentence, an "Adverse REMIC Event") unless
the Certificate Administrator or the REMIC Administrator, as applicable, has
received an Opinion of Counsel (at the expense of the party seeking to take such
action or, if such party fails to pay such expense, and the Certificate
Administrator or the REMIC Administrator, as applicable, determines that taking
such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the Certificate Administrator, the REMIC Administrator or the
Trustee) to the effect that the contemplated action will not, with respect to
the REMIC, endanger such status or, unless the Certificate Administrator, the
REMIC Administrator or both, as applicable, determine in its or their sole
discretion to indemnify the Trust Fund against the imposition of such a tax,
result in the imposition of such a tax. Wherever in this Agreement a
contemplated action may not be taken because the timing of such action might
result in the imposition of a tax on the Trust Fund, or may only be taken
pursuant to an Opinion of Counsel that such action would not impose a tax on the
Trust Fund, such action may nonetheless be taken provided that the indemnity
given in the preceding sentence with respect to any taxes that might be imposed
on the Trust Fund has been given and that all other preconditions to the taking
of such action have been satisfied. The Trustee shall not take or fail to take
any action (whether or not authorized hereunder) as to which the Certificate
Administrator or the REMIC Administrator, as applicable, has advised it in
writing that it has received an Opinion of Counsel to the effect that an Adverse
REMIC Event could occur with respect to such action. In addition, prior to
taking any action with respect to the REMIC or any related assets thereof, or
causing the REMIC to take any action, which is not expressly permitted under the
terms of this Agreement, the Trustee will consult with the Certificate
Administrator or the REMIC Administrator, as applicable, or its designee, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur with respect to the REMIC, and the Trustee shall not take any such
action or cause the REMIC to take any such action as to which the Certificate
Administrator or the REMIC Administrator, as applicable, has advised it in
writing that an Adverse REMIC Event could occur. The Certificate Administrator
or the REMIC Administrator, as applicable, may consult with counsel to make such
written advice, and the cost of the same shall be borne by the party seeking to
take the action not expressly permitted by this Agreement, but in no event at
the expense of the Certificate Administrator or the REMIC Administrator. At all
times as may be required by the Code, the Certificate Administrator will to the
extent within its control and scope of its duties more specifically set forth
herein, maintain substantially all of the assets of the REMIC as "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined under Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions"
of the REMIC as defined in Section 860F(a)(2) of the Code, on "net income from
foreclosure property" of the REMIC as defined in Section 860G(c) of the Code, on
any contributions to the REMIC after the startup day therefor pursuant to
Section 860G(d) of the Code, or any other tax is imposed by the Code or any
applicable provisions of state or local tax laws, such tax shall be charged (i)
to the
-23-
Certificate Administrator, if such tax arises out of or results from a breach by
the Certificate Administrator of any of its obligations under this Agreement or
the Certificate Administrator has in its sole discretion determined to indemnify
the Trust Fund against such tax, (ii) to the Trustee, if such tax arises out of
or results from a breach by the Trustee of any of its obligations under this
Article III, (iii) to the REMIC Administrator, if in its sole discretion it has
determined to indemnify the Trust Fund for such tax; or (iv) otherwise against
amounts on deposit in the Trust Certificate Account as provided hereunder and on
the Distribution Date(s) following such reimbursement the aggregate of such
taxes shall be allocated in reduction of the Accrued Certificate Interest on
each Class entitled thereto in the same manner as if such taxes constituted a
Prepayment Interest Shortfall.
(h) The Trustee and the Certificate Administrator shall, for federal
income tax purposes, maintain books and records with respect to the REMIC on a
calendar year and on an accrual basis or as otherwise may be required by the
REMIC Provisions.
(i) Following the startup day for the REMIC, neither the Certificate
Administrator nor the Trustee shall accept any contributions of assets to the
REMIC unless (subject to Section 3.01(f) hereof) the Certificate Administrator
and the Trustee shall have received an Opinion of Counsel (at the expense of the
party seeking to make such contribution) to the effect that the inclusion of
such assets in the REMIC will not cause the REMIC to fail to qualify as a real
estate mortgage investment conduit at any time that any Trust Certificates are
outstanding or subject the REMIC to any tax under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(j) Neither the Certificate Administrator nor the Trustee shall
(subject to Section 3.01(f) hereof) enter into any arrangement by which the
REMIC will receive a fee or other compensation for services nor permit the REMIC
to receive any income from assets other than "qualified mortgages" as defined in
Section 860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the
Certificate Principal Balance of each Class of Trust Certificates representing a
regular interest in the REMIC would be reduced to zero is the Maturity Date for
each such Trust Certificate.
(l) Within 30 days after the Closing Date, the REMIC Administrator
shall prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the REMIC.
(m) Neither the Certificate Administrator nor the Trustee shall (i)
sell, dispose of or substitute for the Underlying Certificates (except in
connection with (A) the default, imminent default or foreclosure of the
Underlying Certificates, (B) the bankruptcy of the REMIC, or (C) the termination
of the trust fund relating to the Underlying Certificates pursuant to Article IX
of the Pooling and Servicing Agreement), (ii) acquire any assets for the REMIC,
(iii) sell or dispose of any investments in the Trust Certificate Account for
gain nor accept any contributions to the REMIC after the Closing Date unless it
has received an Opinion of Counsel that such sale, disposition, substitution or
acquisition will not (A) affect adversely the status of the REMIC as a real
estate
-24-
mortgage investment conduit or (B) cause the REMIC to be subject to a tax on
"prohibited transactions" or "contributions" pursuant to the REMIC Provisions.
(n) The Trustee agrees to indemnify the Trust Fund, the Company, the
REMIC Administrator and the Certificate Administrator for any taxes and costs
including, without limitation, any reasonable attorneys fees imposed on or
incurred by the Trust Fund, the Company or the Certificate Administrator, as a
result of a breach of the Trustee's covenants set forth in Article V or this
Article III.
(o) The REMIC Administrator agrees to indemnify the Trust Fund, the
Company, the Certificate Administrator and the Trustee for any taxes and costs
(including, without limitation, any reasonable attorneys' fees) imposed on or
incurred by the Trust Fund, the Company, the Certificate Administrator or the
Trustee, as a result of a breach of the REMIC Administrator's covenants set
forth in this Article III with respect to compliance with the REMIC Provisions,
including without limitation, any penalties arising from the Trustee's execution
of Tax Returns prepared by the REMIC Administrator that contain errors or
omissions; provided, however, that such liability will not be imposed to the
extent such breach is a result of an error or omission in information provided
to the REMIC Administrator by the Certificate Administrator in which case
Section 3.01(p) will apply.
(p) The Certificate Administrator agrees to indemnify the Trust Fund,
the Company, the REMIC Administrator and the Trustee for any taxes and costs
(including, without limitation, any reasonable attorneys' fees) imposed on or
incurred by the Trust Fund, the Company, the REMIC Administrator or the Trustee,
as a result of a breach of the Certificate Administrator's covenants set forth
in this Article III with respect to compliance with the REMIC Provisions,
including without limitation, any penalties arising from the Trustee's execution
of Tax Returns prepared by the Certificate Administrator that contain errors or
omissions.
Section 3.02. Collection of Monies.
Except as otherwise provided in Section 6.01, upon its receipt of a
Notice of Final Distribution, the Trustee shall present and surrender the
Underlying Certificates, for final payment thereon in accordance with the terms
and conditions of Pooling and Servicing Agreement and such Notice of Final
Distribution. The Trustee shall promptly deposit in the Trust Certificate
Account the final distribution received upon presentation and surrender of the
Underlying Certificates.
Section 3.03. Establishment of Trust Certificate Account; Deposits in
Trust Certificate Account.
(a) The Trustee shall establish and maintain the Trust Certificate
Account. The Trustee shall cause the following payments and collections in
respect of the Underlying Certificates to be deposited directly into the Trust
Certificate Account:
(i) all distributions due and received on the Underlying
Certificates subsequent to the Closing Date;
(ii) any amounts received in connection with the sale of the
Underlying Certificates pursuant to Section 6.01 in accordance with a plan of
complete liquidation of the Trust Fund; and
-25-
(iii) any other amounts specifically required to be deposited in
the Trust Certificate Account hereunder.
The foregoing requirements for deposit in the Trust Certificate
Account shall be exclusive.
(b) Funds in the Trust Certificate Account shall be held uninvested.
Section 3.04. Permitted Withdrawals From the Trust Certificate
Account.
The Trustee may from time to time withdraw funds from the Trust
Certificate Account for the following purposes:
(i) to make distributions in the amounts and in the manner provided
for in Section 3.05;
(ii) to reimburse the Certificate Administrator, Company or the
Trustee for expenses incurred by and reimbursable to the Certificate
Administrator, Company or the Trustee pursuant to Section 3.01(c) or 7.03 or as
otherwise permitted under this Agreement; and
(iii) to clear and terminate the Trust Certificate Account upon the
termination of this Agreement.
Section 3.05. Distributions.
(a) On each Distribution Date the Trustee shall distribute, based on
information received from the Certificate Administrator, to each
Certificateholder of record on the related Record Date (other than as provided
in Section 6.01 respecting the final distribution) either in immediately
available funds (by wire transfer or otherwise) to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder has so notified the Trustee, or, if such
Certificateholder has not so notified the Trustee by the Record Date, by check
mailed to such Certificateholder at the address of such Holder appearing in the
Certificate Register such Certificateholder's share (which shall be based on the
aggregate of the Percentage Interests represented by Trust Certificates of the
applicable Class held by such Holder) of the following amounts, in the following
order of priority (subject to the provisions of Section 3.05(a)(iv) below), in
each case to the extent of the Available Funds remaining:
(i) (A) Prior to the occurrence of the Accretion Termination Date
to the Class A Certificates (other than the Class A-6 Certificates), on a pro
rata basis, any Accrued Certificate Interest payable on such Trust Certificates
with respect to such Distribution Date, plus any Accrued Certificate Interest
thereon remaining unpaid from any previous Distribution Date, and (B) on or
after the occurrence of the Accretion Termination Date, to the Class A
Certificates, on a pro rata basis, any Accrued Certificate Interest payable on
such Trust Certificates with respect to such Distribution Date, plus any Accrued
Certificate Interest thereon remaining unpaid from any previous Distribution
Date;
(ii) Prior to the occurrence of the Credit Support Depletion
Date, the Accrual Distribution Amount shall be distributed to the Class A-5-2
Component as a distribution of
-26-
principal until the Certificate Principal Balance of the Class A-5-2 Component
has been reduced to zero;
(iii) Prior to the occurrence of the Credit Support Depletion
Date, the Principal Distribution Amount for that Distribution Date shall be
applied in the following order of priority:
(A) first, to the Class R Certificates until the Certificate
Principal Balance of the Class R Certificates has been reduced to zero;
(B) second, an amount equal to the lesser of the remaining
Principal Distribution Amount and the PAC Distribution Amount for that
Distribution Date will be applied sequentially as follows:
(1) to the Class A-5-1 Component, an amount equal to
the lesser of (x) the remaining Principal Distribution Amount and (y) the
excess, if any, of (I) the Certificate Principal Balance of the Class A-5-1
Component as of such Distribution Date and (II) the Class A-5-1 Component
Planned Principal Balance for such Distribution Date;
(2) to the Class A-1 Certificates and Class A-2
Certificates, on a pro rata basis in accordance with their respective
Certificate Principal Balances, an amount equal to the lesser of (x) the
remaining Principal Distribution Amount and (y) the excess, if any, of (I) the
sum of the Certificate Principal Balances of the Class A-1 Certificates and
Class A-2 Certificates as of such Distribution Date and (II) the Class A-1/A-2
Planned Principal Balance for such Distribution Date;
(3) to the Class A-4 Certificates and Class A-7
Certificates, on a pro rata basis in accordance with their respective
Certificate Principal Balances, an amount equal to the lesser of (x) the
remaining Principal Distribution Amount and (y) the excess, if any, of (I) the
sum of the Certificate Principal Balances of the Class A-4 Certificates and
Class A-7 Certificates as of such Distribution Date and (II) the Class A-4/A-7
Planned Principal Balance for such Distribution Date; and
(4) to the Class A-3 Certificates, an amount equal to
the lesser of (x) the remaining Principal Distribution Amount and (y) the
excess, if any, of (I) the Certificate Principal Balance of the Class A-3
Certificates as of such Distribution Date and (II) the Class A-3 Planned
Principal Balance for such Distribution Date;
(C) third, to the Class A-5-2 Component, an amount equal to
the lesser of (x) the remaining Principal Distribution Amount and (y) the
excess, if any, of (I) the Certificate Principal Balance of the Class A-5-2
Component as of such Distribution Date (after taking into account the
distribution of the Accrual Distribution Amount pursuant to Section 3.05(a)
(ii)) and (II) the Class A-5-2 Component Planned Principal Balance for such
Distribution Date;
(D) fourth, to the Class A-6 Certificates, until the
Certificate Principal Balance of the Class A-6 Certificates has been reduced
zero;
(E) fifth, to the Class A-5-2 Component, until the
Certificate Principal Balance of the Class A-5-2 Component has been reduced to
zero;
(F) sixth, to the Class A-5-1 Component, until the
Certificate Principal Balance of the Class A-5-1 Component has been reduced to
zero;
-27-
(G) seventh, to the Class A-3 Certificates, until the
Certificate Principal Balance of the Class A-3 Certificates has been reduced
zero;
(H) eighth, to the Class A-1 and Class A-2 Certificates, on
a pro rata basis in accordance with their respective Certificate Principal
Balances, until the Certificate Principal Balances of the Class A-1 and Class
A-2 Certificates have been reduced zero; and
(I) ninth, to the Class A-4 and Class A-7 Certificates, on a
pro rata basis in accordance with their respective Certificate Principal
Balances, until the Certificate Principal Balances of the Class A-4 and Class
A-7 Certificates have been reduced zero.
(iv) On or after the occurrence of the Credit Support Depletion
Date, all priorities relating to distributions as described in clauses (ii) and
(iii) above relating to principal among the Trust Certificates will be
disregarded and the Accrual Distribution Amount will be distributed to Class A-6
Certificates, and the Principal Distribution Amount will be distributed to the
Trust Certificates remaining pro rata in accordance with their respective
outstanding Certificate Principal Balances and the Interest Distribution Amount
will be distributed pursuant to clause (a)(i) above.
(b) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be solely
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm") for which it acts as agent. Each brokerage
firm shall be responsible for disbursing funds to the Certificate Owners that it
represents. None of the Trustee, the Certificate Registrar, the Company or the
Certificate Administrator shall have any responsibility therefor.
(c) Except as otherwise provided in Section 6.01, if the Certificate
Administrator anticipates that a final distribution with respect to any Class of
Trust Certificates will be made on the next Distribution Date, the Certificate
Administrator shall, no later than the fifteen days prior to such final
distribution, notify the Trustee and the Trustee shall, no later than two (2)
Business Days after such notification, mail on such date to each Holder of such
Class of Trust Certificates a notice to the effect that: (i) the Trustee
anticipates that the final distribution with respect to such Class of Trust
Certificates will be made on such Distribution Date but only upon presentation
and surrender of such Trust Certificates at the office of the Trustee specified
therein or as otherwise specified therein, and (ii) no interest shall accrue on
such Trust Certificates from and after the end of the related Interest Accrual
Period. In the event that Certificateholders required to surrender their Trust
Certificates pursuant to Section 6.01(b) do not surrender their Trust
Certificates for final cancellation, the Trustee shall cause funds distributable
with respect to such Trust Certificates to be withdrawn from the Trust
Certificate Account and credited to a separate escrow account for the benefit of
such Certificateholders as provided in Section 6.01(b). The funds in such escrow
account shall not be invested.
(d) On each Distribution Date preceding the Accretion Termination
Date, Accrued Certificate Interest that would otherwise be distributed to the
Class A-6 Certificates as interest will be added to the Certificate Principal
Balance of the Class A-6 Certificates and such amount will thereafter accrue
interest at a rate of 4.00% per annum. On the Accretion Termination Date, the
Accrued Certificate Interest on the Class A-6 Certificates for such date will be
payable to the holders of the Class A-5-2 Component as a distribution of
principal pursuant to Section 3.05(a)
-28-
until the Certificate Principal Balance thereof has been reduced to zero, any
such amount will be added to the Certificate Principal Balance of the Class A-6
Certificates, and any remaining amount of Accrued Certificate Interest will be
paid to the holders of the Class A-6 Certificates as a distribution of interest
and will not be added to the Certificate Principal Balance thereof; provided,
however, if the Accretion Termination Date is the Credit Support Depletion Date,
the entire amount of Accrued Certificate Interest on the Class A-6 Certificates
for such date will be payable to the holders of the Class A-6 Certificates as a
distribution of interest and will not be added to the Certificate Principal
Balance thereof.
Section 3.06. Statements to Certificateholders.
(a) Concurrently with each distribution charged to the Trust
Certificate Account and with respect to each Distribution Date the Certificate
Administrator shall forward to the Trustee and the Trustee shall either forward
by mail or make available to each Holder and the Company, via the Trustee's
internet website, a statement (and at its option, any additional files
containing the same information in an alternative format) setting forth the
following information as to each Class of Trust Certificates:
(i) the Available Funds for such Distribution Date;
(ii) with respect to such Distribution Date, the aggregate amount
of Accrued Certificate Interest, the Pass-Through Rate and the aggregate
Principal Distribution Amount and the amounts of principal and interest
distributed to the Certificateholders of each Class of Trust Certificates on
such Distribution Date pursuant to Section 3.05;
(iii) the aggregate amount of distributions on the Class R
Certificate on such Distribution Date pursuant to Section 3.05, if any;
(iv) the Certificate Principal Balance of each Class of the Class
A Certificates after giving effect to distributions of principal of such Trust
Certificates on such Distribution Date;
(v) the Underlying Certificate Balance as of such Distribution
Date, after giving effect to the distribution of principal made thereon and the
amount of any Realized Losses with respect to the Underlying Certificates
applied to reduce the Underlying Certificate Balance thereof on such
Distribution Date;
(vi) the Accrual Distribution Amount ; and
(vii) the amount of any reductions in the Certificate Principal
Balance of the Class A Certificates by the Class A Loss Amount and the Class A
Excess Loss Amount, if any.
The Trustee shall mail to each Holder that requests a paper copy by
telephone a paper copy via first class mail. The Trustee may modify the
distribution procedures set forth in this Section 3.06 provided that such
procedures are no less convenient for the Certificateholders. The Trustee shall
provide prior notification to the Company, the Certificate Administrator and the
Certificateholders regarding any such modification. In addition, the Certificate
Administrator shall provide to any manager of a trust fund consisting of some or
all of the Trust Certificates, upon
-29-
reasonable request, such additional information as is reasonably obtainable by
the Certificate Administrator at no additional expense to the Certificate
Administrator.
(b) In addition, the Trustee promptly will furnish to
Certificateholders copies of any notices, statements, reports or other
communications including, without limitation, the Underlying Distribution Date
Statements, received by the Trustee as the Underlying Certificateholder.
(c) Within a reasonable period of time after the end of each calendar
year, the Certificate Administrator shall prepare, or cause to be prepared, and
shall forward, or cause to be forwarded, to each Person who at any time during
the calendar year was the Holder of a Trust Certificate, other than a Class R
Certificate, a statement containing the information set forth in clause (a)(ii)
above aggregated for such calendar year or applicable portion thereof during
which such Person was a Certificateholder. Such obligation of the Certificate
Administrator shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Certificate
Administrator pursuant to any requirements of the Code.
(d) Within a reasonable period of time after the end of each calendar
year, the Certificate Administrator shall prepare, or cause to be prepared, and
shall forward, or cause to be forwarded, to each Person who at any time during
the calendar year was the Holder of a Class R Certificate, a statement
containing the applicable distribution information provided pursuant to this
Section (a)(iii) aggregated for such calendar year or applicable portion thereof
during which such Person was the Holder of a Class R Certificate. Such
obligation of the Certificate Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Certificate Administrator pursuant to any requirements of the
Code.
(e) The Certificate Administrator shall, on behalf of the Company and
in respect of the Trust Fund, sign and cause to be filed with the Securities and
Exchange Commission any periodic reports required to be filed under the
provisions of the Exchange Act, and the rules and regulations of the Commission
thereunder. In connection with the preparation and filing of such periodic
reports, the Trustee shall timely provide to the Certificate Administrator (i) a
list of Certificateholders as shown on the Certificate Register as of the end of
each calendar year, (ii) copies of all pleadings, other legal process and any
other documents relating to any claims, charges or complaints involving the
Trustee, as trustee hereunder, or the Trust Fund that are received by the
Trustee, (iii) notice of all matters that, to the actual knowledge of a
Responsible Officer of the Trustee, have been submitted to a vote of the
Certificateholders, other than those matters that have been submitted to a vote
of the Certificateholders at the request of the Company or the Certificate
Administrator, and (iv) notice of any failure of the Trustee to make any
distribution to the Certificateholders as required pursuant to this Agreement.
Neither the Certificate Administrator nor the Trustee shall have any liability
with respect to the Certificate Administrator's failure to properly prepare or
file such periodic reports resulting from or relating to the Certificate
Administrator's inability or failure to obtain any information not resulting
from the Certificate Administrator's own negligence or willful misconduct. Any
Form 10-K filed with the Commission in connection with this Section 3.06(e)
shall include a certification, signed by the senior officer in charge of the
servicing functions of the Certificate Administrator, in the form attached as
Exhibit E hereto or such other form as may be required or permitted by the
Commission (the "Form 10-K Certification"), in compliance with Rules 13a-14 and
15d-14 under the Exchange Act and any additional directives of the Commission.
In connection with the Form 10-K Certification, the Trustee shall provide the
-30-
Certificate Administrator with a back-up certification substantially in the form
attached hereto as Exhibit F. This Section 3.06(e) may be amended in accordance
with this Agreement without the consent of the Certificateholders.
Section 3.07. Access to Certain Documentation and Information.
The Trustee shall provide to the Certificateholders access to the
Trust Certificates and all reports, documents and records maintained by the
Trustee in respect of its duties hereunder, such access being afforded without
charge but only upon reasonable written request no less than two Business Days
prior to such access and during normal business hours at offices designated by
the Trustee.
Section 3.08. Sale of Defective Assets.
Upon the discovery by, or written notice to, the Company or the
Trustee that the Underlying Certificates are not regular interests of the REMIC
or that any other asset of the REMIC is not a permitted asset of the REMIC, the
party discovering such fact shall give prompt written notice to the other party.
The Trustee shall sell the Underlying Certificates (or other asset, as the case
may be) upon the terms and at the direction of the Company within 90 days of
such discovery and any tax resulting therefrom not borne by the Trustee pursuant
to Article V hereof shall be payable out of the Trust Fund.
Section 3.09. Modification of Underlying Certificates
Notwithstanding any contrary provision herein, the Trustee will not
permit the modification of the Underlying Certificates unless (a) such
modification is in accordance with the Pooling and Servicing Agreement and (b)
the Trustee has received an Opinion of Counsel (which shall not be an expense of
the Trustee) that such modification would not endanger the status of the REMIC
as a real estate mortgage investment conduit.
Section 3.10. [Reserved].
Section 3.11. Allocation of Class A Loss Amounts.
Class A Loss Amounts will be allocated to the Class A Certificates on
a pro rata basis in accordance with their respective Certificate Principal
Balances, and, in the case of the Class A-5 Certificates, to the components
thereof, on a pro rata basis; provided, however, that until the Certificate
Principal Balance of the Class A-7 Certificates has been reduced to zero, any
Class A Loss Amounts allocable to the Class A-4 Certificates will be allocated
to the Class A-7 Certificates.
Section 3.12. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders, including interest or original issue discount payments or
advances thereof that the Trustee reasonably believes are applicable under the
Code. The consent of Certificateholders shall not be required for such
withholding. In the event the Trustee does withhold any amount from interest or
original issue discount payments or advances thereof to any Certificateholder
pursuant to federal withholding
-31-
requirements, the Trustee shall indicate the amount withheld to such
Certificateholder pursuant to the terms of such requirements.
ARTICLE IV
THE TRUST CERTIFICATES
Section 4.01. The Trust Certificates.
The Class A and Class R Certificates shall be substantially in the
forms set forth in Exhibits A and B, respectively, and shall, on original issue,
be executed and delivered by the Trustee to the Certificate Registrar for
authentication and delivery to or upon the order of the Company upon receipt by
the Trustee of the documents specified in Section 2.01. The Trust Certificates
shall be issuable in the minimum denominations designated in the Preliminary
Statement hereto.
The Trust Certificates shall be executed by manual or facsimile
signature on behalf of an authorized officer of the Trustee. Trust Certificates
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Trustee shall bind the Trustee, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Trust Certificate or did not hold such
offices at the date of such Trust Certificates. No Trust Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Trust Certificate a certificate of authentication
substantially in the form provided for herein executed by the Certificate
Registrar by manual signature, and such certificate upon any Trust Certificate
shall be conclusive evidence, and the only evidence, that such Trust Certificate
has been duly authenticated and delivered hereunder. All Trust Certificates
shall be dated the date of their authentication.
The Class A Certificates shall initially be issued as one or more
Trust Certificates registered in the name of the Depository or its nominee and,
except as provided below, registration of such Trust Certificates may not be
transferred by the Trustee except to another Depository that agrees to hold such
Trust Certificates for the respective Certificate Owners with Ownership
Interests therein. The Holders of the Book-Entry Certificates shall hold their
respective Ownership Interests in and to each of the Book-Entry Certificates
through the book-entry facilities of the Depository and, except as provided
below, shall not be entitled to Definitive Certificates in respect of such
Ownership Interests. All transfers by Certificate Owners of their respective
Ownership Interests in the Book-Entry Certificates shall be made in accordance
with the procedures established by the Depository Participant or brokerage firm
representing such Certificate Owner. Each Depository Participant shall transfer
the Ownership Interests only in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
Except as provided below, registration of Book-Entry Certificates may
not be transferred by the Trustee except to another Depository that agrees to
hold such Trust Certificates for the respective Certificate Owners with
Ownership Interests therein. The Holders of the Book-Entry Certificates shall
hold their respective Ownership Interests in and to each of such Trust
Certificates through the book-entry facilities of the Depository and, except as
provided below, shall not be entitled to Definitive Certificates in respect of
such Ownership Interests. All transfers by Certificate Owners of their
respective Ownership Interests in the Book-Entry Certificates shall be
-32-
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall transfer the Ownership Interests only in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
The Trustee, the Certificate Administrator and the Company may for all
purposes (including the making of payments due on the respective Classes of
Book-Entry Certificates) deal with the Depository as the authorized
representative of the Certificate Owners with respect to the respective Classes
of Book-Entry Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the respective Classes of Book-Entry Certificates shall be limited to those
established by law and agreements between such Certificate Owners and the
Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository as
Holder of any Class of Book-Entry Certificates with respect to any particular
matter shall not be deemed inconsistent if they are made with respect to
different Certificate Owners. The Trustee may establish a reasonable record date
in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
If (i)(A) the Company advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Company is unable to locate a
qualified successor or (ii) the Company at its option advises the Trustee in
writing that it elects to terminate the book-entry system through the
Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall issue the Definitive Certificates. Neither the
Company, the Certificate Administrator nor the Trustee shall be liable for any
actions taken by the Depository or its nominee, including, without limitation,
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates all references herein to obligations imposed upon or to
be performed by the Company in connection with the issuance of the Definitive
Certificates pursuant to this Section 4.01 shall be deemed to be imposed upon
and performed by the Trustee, and the Trustee and the Certificate Administrator
shall recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
Section 4.02. Registration of Transfer and Exchange of Trust
Certificates.
(a) The Trustee shall cause to be kept at one of the offices or
agencies to be appointed by the Trustee in accordance with the provisions of
this Section 4.02, a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trustee shall provide for the registration
of Trust Certificates and of transfers and exchanges of Trust Certificates as
herein provided. Upon satisfaction of the conditions set forth below, the
Trustee shall execute and the Certificate Registrar shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Trust Certificates of a like Class and aggregate Percentage Interest. In
addition, the Trustee shall notify the Company of each transfer or exchange of
the Trust Certificates. The components relating to the Class A-5 Certificates
are not separately transferable.
-33-
(b) At the option of the Certificateholders, Trust Certificates may be
exchanged for other Trust Certificates of authorized denominations of a like
Class and aggregate Percentage Interest, upon surrender of the Trust
Certificates to be exchanged at any such office or agency. Whenever any Trust
Certificates are so surrendered for exchange the Trustee shall execute and the
Certificate Registrar shall authenticate and deliver the Trust Certificates of
such Class which the Certificateholder making the exchange is entitled to
receive. Every Trust Certificate presented or surrendered for transfer or
exchange shall (if so required by the Trustee or the Certificate Registrar) be
duly endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing.
(c) (i) Each Person who has or who acquires any Ownership Interest in
a Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a United States Person and a Permitted Transferee
and shall promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate to a United States Person, the Trustee shall
require delivery to it, and shall not register the Transfer of any Class R
Certificate until its receipt of, (I) an affidavit and agreement (a "Transfer
Affidavit and Agreement" attached hereto as Exhibit C-1) from the proposed
Transferee, representing and warranting, among other things, that it is a United
States Person, that such Transferee is a Permitted Transferee, that it is not
acquiring its Ownership Interest in the Class R Certificate that is the subject
of the proposed Transfer as a nominee, trustee or agent for any Person who is
not a Permitted Transferee, that for so long as it retains its Ownership
Interest in a Class R Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of this Section 4.02(c) and
agrees to be bound by them and (II) a certificate, attached hereto as Exhibit
C-2, from the Holder wishing to transfer the Class R Certificate, representing
and warranting, among other things, that no purpose of the proposed Transfer is
to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the Trustee has
actual knowledge that the proposed Transferee is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Class R Certificate to such proposed
Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (x) to require a Transfer Affidavit and
Agreement from any other Person to whom such Person attempts to transfer its
Ownership Interest in a Class R Certificate and (y) not to transfer its
Ownership Interest unless it provides a certificate to the Trustee in the form
attached hereto as Exhibit C-2.
(E) Each Person holding or acquiring an Ownership Interest in a
Class R Certificate, by purchasing an Ownership Interest in such Trust
Certificate, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of Temporary Treasury
-34-
Regulations 1.67-3T(a)(2)(A) immediately upon acquiring an Ownership Interest in
a Class R Certificate, if it is, or is holding an Ownership Interest in a Class
R Certificate on behalf of, a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate
only if it shall have received the Transfer Affidavit and Agreement, a
certificate of the Holder requesting such transfer in the form attached hereto
as Exhibit C-2 and all of such other documents as shall have been reasonably
required by the Trustee as a condition to such registration. Transfers of the
Class R Certificate to Non-United States Persons and Persons other than
Permitted Transferees are prohibited.
(iii) The Trustee shall be under no liability to any Person for any
registration of Transfer of a Class R Certificate that is in fact not permitted
by this Section 4.02(c) or for making any payments due on such Trust Certificate
to the holder thereof or for taking any other action with respect to such holder
under the provisions of this Agreement.
(iv) The Certificate Administrator, on behalf of the Trustee, shall
make available all information necessary to compute any tax imposed (A) as a
result of the Transfer of an Ownership Interest to any Person who is not a
Permitted Transferee, including the information regarding "excess inclusions" of
such Class R Certificate required to be provided to the Internal Revenue Service
and certain Persons as described in Treasury Regulation Sections 1.860D-1(b)(5)
and 1.860E-2(a)(5), and (B) as a result of any regulated investment company,
real estate investment trust, common trust fund, partnership, trust, estate or
organizations described in Section 1381 of the Code having as among its record
holders at any time any Person who is not a Permitted Transferee. Reasonable
compensation for providing such information may be required by the Certificate
Administrator.
(v) The provisions of this Section 4.02(c) set forth prior to this
Section (v) may be modified, added or eliminated, provided that the following
shall have been delivered to the Trustee:
(A) a written notification from the Rating Agency to the effect
that the modification, addition or elimination of such provisions will not cause
such Rating Agency to downgrade its then-current ratings of the Trust
Certificates; and
(B) subject to Section 3.01(f) hereof, an Opinion of Counsel,
which shall not be an expense of the Trustee, to the effect that such
modification, addition or absence of such provisions will not cause the Trust
Fund to cease to qualify as a real estate mortgage investment conduit and will
not cause (x) the Trust Fund to be subject to an entity-level tax caused by the
Transfer of any Class R Certificate to a Person that is not a Permitted
Transferee or (y) a Certificateholder or another Person to be subject to a real
estate mortgage investment conduit related tax caused by the Transfer of a Class
R Certificate to a Non-United States Person or a Person that is not a Permitted
Transferee.
(d) In the case of any Class R Certificate presented for registration
in the name of any Person, either (A) the Trustee shall require an Opinion of
Counsel acceptable to and in form and substance satisfactory to the Trustee, the
Company and the Certificate Administrator to the effect that the purchase or
holding of such Class R Certificate is permissible under applicable law,
-35-
will not constitute or result in any non-exempt prohibited transaction under
Section 406 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), and will not subject the Trustee, the Company or the
Certificate Administrator to any obligation or liability (including obligations
or liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Company or the Certificate Administrator or (B) the
prospective Transferee shall be required to provide the Trustee, the Company and
the Certificate Administrator with a certification to the effect set forth in
paragraph fifteen of Exhibit C-1, which the Trustee may rely upon without
further inquiry or investigation, or such other certifications as the Trustee
may deem desirable or necessary in order to establish that such Transferee or
the Person in whose name such registration is requested is not an employee
benefit plan or other plan or arrangement subject to the prohibited transaction
provisions of ERISA or Section 4975 of the Code a ("Plan"), or any Person
(including an investment manager, a named fiduciary or a trustee of any Plan)
who is using "plan assets" of any Plan to effect such acquisition, within the
meaning of the Department of Labor regulation 29 C.F.R. Section 2510.3-101.
(e) No service charge shall be made for any transfer or exchange of
Trust Certificates of any Class, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Trust Certificates.
(f) All Trust Certificates surrendered for transfer and exchange shall
be destroyed by the Certificate Registrar in accordance with its customary
procedures.
Section 4.03. Mutilated, Destroyed, Lost or Stolen Trust Certificates.
If (i) any mutilated Trust Certificate is surrendered to the
Certificate Registrar, or the Trustee and the Certificate Registrar receive
evidence to their satisfaction of the destruction, loss or theft of any Trust
Certificate, and (ii) there is delivered to the Trustee and the Certificate
Registrar such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Trustee or the Certificate
Registrar that such Trust Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute and the Certificate Registrar shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Certificate, a new Trust Certificate of like
tenor, Class and Percentage Interest but bearing a number not contemporaneously
outstanding. Upon the issuance of any new Trust Certificate under this Section,
the Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any duplicate Trust Certificate issued pursuant
to this Section shall constitute complete and indefeasible evidence of ownership
in the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Trust Certificate shall be found at any time.
Section 4.04. Persons Deemed Owners.
Prior to due presentation of a Trust Certificate for registration of
transfer, the Company, the Trustee, the Certificate Registrar and any agent of
the Company, the Trustee or the Certificate Registrar may treat the Person in
whose name any Trust Certificate is registered as the
-36-
owner of such Trust Certificate for the purpose of receiving distributions
pursuant to Section 3.05 and for all other purposes whatsoever, and neither the
Company, the Trustee, the Certificate Registrar nor any agent of the Company,
the Trustee or the Certificate Registrar shall be affected by notice to the
contrary.
ARTICLE V
THE TRUSTEE
Section 5.01. Duties of the Trustee.
(a) The Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement and, if applicable, the Pooling
and Servicing Agreement. The Trustee shall notify the Certificateholders of any
such documents which do not materially conform to the requirements of this
Agreement or the Pooling and Servicing Agreement in the event that the Trustee,
after so requesting, does not receive satisfactorily corrected documents or a
satisfactory explanation regarding any such nonconformities.
The Trustee shall forward or cause to be forwarded in a timely fashion
the notices, reports and statements required to be forwarded by the Trustee
pursuant to this Agreement. The Trustee shall furnish in a timely fashion to the
Certificate Administrator such information as the Certificate Administrator may
reasonably request from time to time for the Certificate Administrator to
fulfill its duties as set forth in this Agreement. The Trustee covenants and
agrees that it shall perform its obligations hereunder in a manner so as to
maintain the status of any portion of the REMIC as a real estate mortgage
investment conduit under the REMIC Provisions and (subject to Section 3.01(f)
hereof) to prevent the imposition of any federal, state or local income,
prohibited transaction, contribution or other tax on the Trust Fund to the
extent that maintaining such status and avoiding such taxes are reasonably
within the control of the Trustee and are reasonably within the scope of its
duties under this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) The duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or obligations
shall be read into this Agreement against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished by the Company to the Trustee and
which on their face, do not contradict the requirements of this Agreement;
-37-
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Certificateholders of any Class holding Trust
Certificate which evidence, as to such Class, Percentage Interests aggregating
not less than 25% as to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement;
(iv) The Trustee shall not be charged with knowledge of any
default under the Pooling and Servicing Agreement unless a Responsible Officer
of the Trustee assigned to and working in the Corporate Trust Office obtains
actual knowledge of such failure or event or the Trustee receives written notice
of such failure or event at its Corporate Trust Office from the Company or any
Certificateholder; and
(v) No provision in this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any personal financial liability
in the performance of any of its duties as Trustee hereunder, or in the exercise
of any of its rights or powers, if the Trustee shall have reasonable grounds for
believing that repayment of funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) The Trustee shall timely pay, from its own funds, the amount of
any and all federal, state and local taxes imposed on the Trust Fund or its
assets or transactions including, without limitation, (A) "prohibited
transaction" penalty taxes as defined in Section 860F of the Code, if, when and
as the same shall be due and payable, (B) any tax on contributions to the REMIC
after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, but only if such taxes arise out of a breach by the Trustee of its
obligations hereunder, which breach constitutes negligence or willful misconduct
of the Trustee.
Section 5.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 5.01:
(i) The Trustee may request and may rely and shall be protected
in acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) The Trustee may consult with counsel and any written advice
of its counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to institute, conduct or
defend any litigation hereunder
-38-
or in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
(iv) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(v) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing so to do by Holders of
Trust Certificates of any Class evidencing, as to such Class, Percentage
Interests aggregating not less than 50%; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a condition to so
proceeding. The reasonable expense of every such examination shall be paid by
the Certificateholder requesting the investigation; and
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys.
(b) Following the issuance of the Trust Certificates, the Trustee
shall not accept any contribution of assets to the Trust Fund unless it shall
have obtained or been furnished with an Opinion of Counsel from the party
seeking to contribute assets and at such party's expense to the effect that such
contribution will not (i) cause the Trust Fund to fail to qualify as a real
estate mortgage investment conduit at any time that any Trust Certificates are
outstanding or (subject to Section 3.01(f) hereof) (ii) cause the Trust Fund to
be subject to any tax as a result of such contribution (including the imposition
of any tax on "prohibited transactions" of the Trust Fund imposed under Section
860F(a) of the Code).
Section 5.03. Trustee Not Liable for Trust Certificates or Underlying
Certificates.
The recitals contained herein and in the Trust Certificates (other
than the execution of the Trust Certificates and relating to the acceptance and
receipt of the Underlying Certificates) shall be taken as the statements of the
Company or the Certificate Administrator as the case may be, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Trust Certificates (except that the Trust Certificates shall be duly and validly
executed by it as Trustee and authenticated by it as Certificate Registrar) or
of the Underlying Certificates of any related document. Except as otherwise
provided herein, the Trustee shall not be accountable for the use or application
by the Company or the Certificate Administrator of any of the Trust Certificates
or of the proceeds of such Trust Certificates, or for the use or application of
any funds paid to the Company in respect of the Underlying Certificates
deposited in or withdrawn from the Trust Certificate Account by the Company.
-39-
Section 5.04. Trustee May Own Trust Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Trust Certificates and may transact business with the
Company and the parties to the Pooling and Servicing Agreement with the same
rights it would have if it were not Trustee.
Section 5.05. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a banking corporation or a
national banking association having its principal office in a state and city
acceptable to the Company and organized and doing business under the laws of
such state or the United States of America, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or state
authority. If such corporation or national banking association publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 5.06.
Section 5.06. Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Company. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may appoint or may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 5.05 and shall fail to resign after
written request therefor by the Company, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Company may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee. In addition, in the
event that the Company determines that the Trustee has failed (i) to distribute
or cause to be distributed to the Certificateholders any amount required to be
distributed hereunder, if such amount is held by the Trustee for distribution or
(ii) to otherwise observe or perform in any material respect any of its
covenants, agreements or obligations hereunder, and such failure shall continue
unremedied for a period of 5 days (in respect of clause (i) above) or 30 days
(in respect of clause (ii) above) after the date on which written notice of such
failure, requiring that the same be remedied, shall have been given to the
Trustee by the Company, then the Company may remove the Trustee and appoint a
successor trustee by written instrument delivered as provided in the preceding
sentence. In connection with the appointment of a successor trustee pursuant to
the preceding sentence, the
-40-
Company shall, on or before the date on which any such appointment becomes
effective, obtain from each Rating Agency written confirmation that the
appointment of any such successor trustee will not result in the reduction of
the ratings on any class of the Certificates below the lesser of the then
current or original ratings on such Certificates.
(c) The Holders of Regular Certificates entitled to at least 51% of
the Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Company, one complete set to the Trustee
so removed and one complete set to the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 5.07.
Section 5.07. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 5.06 shall
execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as trustee herein. The predecessor
trustee shall deliver to the successor trustee the Underlying Certificates and
related documents and statements held by it hereunder, and the Company, the
Certificate Administrator and the predecessor trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor trustee all such
rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 5.05.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall mail notice of the succession of such trustee
hereunder to all Holders of Trust Certificates at their addresses as shown in
the Certificate Register. If the Company fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.
Section 5.08. Merger or Consolidation of Trustee.
Any corporation or national banking association into which the Trustee
may be merged or converted or with which it may be consolidated or any
corporation or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or national banking association succeeding to all or substantially
all of the corporation trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided such corporation or national banking association
shall be eligible under the provisions of Section 5.05, without the execution or
filing of any paper or any further act on the part of any of the
-41-
parties hereto, anything herein to the contrary notwithstanding. The Trustee
shall mail notice of any such merger or consolidation to the Certificateholders
at their address as shown in the Certificate Register.
Section 5.09. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Certificate Administrator and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 5.09, such powers, duties, obligations, rights and trusts as the
Certificate Administrator and the Trustee may consider necessary or desirable.
If the Certificate Administrator shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, the Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 5.05 hereunder and no notice to Holders of Trust
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 5.07 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 5.09 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee, and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed, the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article V. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
-42-
Section 5.10. Appointment of Office or Agency.
The Trustee will maintain an office or agency in the City of New York
where Trust Certificates may be surrendered for registration of transfer or
exchange, or presented for final distribution, and where the office of the
Certificate Registrar is located. The Trustee initially designates such office
to be located at DTC Transfer Services, 00 Xxxxx Xxxxxx, Xxxxxxxx Xxxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Section 5.11. Certificate Administrator to Pay Trustee's Fees and
Expenses; Indemnification.
(a) The Certificate Administrator covenants and agrees to pay to the
Trustee and any co-trustee from time to time, and the Trustee and any co-trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by each of them in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee and any co-trustee, and the Certificate Administrator
will pay or reimburse the Trustee and any co-trustee upon request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
or any co-trustee in accordance with any of the provisions of this Agreement
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ, and the expenses
incurred by the Trustee or any co-trustee in connection with the appointment of
an office or agency pursuant to Section 5.10) except any such expense,
disbursement or advance as may arise from its negligence or bad faith.
(b) The Certificate Administrator agrees to indemnify the Trustee for,
and to hold the Trustee harmless against, any loss, liability or expense
incurred without negligence or willful misconduct on the Trustee's part, arising
out of, or in connection with, the acceptance and administration of the Trust
Fund, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against any claim in connection with the exercise
or performance of any of its powers or duties under this Agreement, provided
that:
(i) with respect to any such claim, the Trustee shall have given the
Certificate Administrator written notice thereof promptly after the Trustee
shall have actual knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee shall
cooperate and consult fully with the Certificate Administrator in preparing such
defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the
Certificate Administrator shall not be liable for settlement of any claim by the
Trustee entered into without the prior consent of the Certificate Administrator
which consent shall not be unreasonably withheld.
No termination of this Agreement shall affect the obligations created
by this Section 5.11(b) of the Certificate Administrator to indemnify the
Trustee under the conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided by the
Certificate Administrator in this Section 5.11(b) shall not pertain to any loss,
liability or expense of the Trustee, including the costs and expenses of
defending itself against any claim, incurred in connection with
-43-
any actions taken by the Trustee at the direction of the Certificateholders
pursuant to the terms of this Agreement.
Section 5.12. Certain Actions Relating to Underlying Certificates. In
the event that there are any matters arising under the Pooling and Servicing
Agreement or the operative documents relating to transactions contemplated by
the Pooling and Servicing Agreement which require the vote, consent or direction
of the holders of the Underlying Certificates, the Trustee, as holder of the
Underlying Certificates, shall vote the Underlying Certificates in accordance
with the written instructions received from the Certificateholders evidencing at
least a majority of the Percentage Interest in the Trust Certificates. Any
Certificateholder that provides instructions to the Trustee pursuant to the
preceding sentence shall also provide the Trustee and its officers, directors,
agents and employees with an indemnity (which shall be satisfactory to the
Trustee) for any loss, liability or expense incurred by the Trustee that arises
out of, or in connection with, such instructions. In the absence of any
instruction from the Certificateholders, the Trustee will abstain from taking
any action with respect to any matter described in the first sentence of this
Section 5.12. The Trustee shall forward to each Certificateholder copies of any
communications received regarding matters that require action by holders of the
Underlying Certificates.
ARTICLE VI
TERMINATION
Section 6.01. Termination.
(a) Subject to Section 6.02, the respective obligations and
responsibilities of the Company, the Certificate Administrator and the Trustee
created hereby with respect to the Trust Certificates (other than the obligation
to make certain payments and to send certain notices to Certificateholders as
hereinafter set forth) shall terminate immediately upon the occurrence of the
last action required to be taken by the Trustee on the Termination Date;
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of twenty-one years from the death of the last survivor of
the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States
to the United Kingdom, living on the date hereof.
(b) Upon presentation and surrender of the Trust Certificates by the
Certificateholders on the Termination Date, the Trustee shall distribute to the
Certificateholders the amounts otherwise distributable on such Distribution Date
pursuant to Section 3.05(a). Any funds not distributed on the Termination Date
because of the failure of any Certificateholders to tender their Trust
Certificates shall be set aside and held in trust for the account of the
appropriate non-tendering Certificateholders, whereupon the Trust Fund shall
terminate, and such funds shall not be invested. If any Trust Certificates as to
which notice of the Termination Date has been given pursuant to this Section
6.01 shall not have been surrendered for cancellation within six months after
the time specified in such notice, the Trustee shall mail a second notice to the
remaining Certificateholders, at their last addresses shown in the Certificate
Register, to surrender their Trust Certificates for cancellation in order to
receive, from such funds held, the final distribution with respect thereto. If
within one year after the second notice any Trust Certificate shall not have
been surrendered for cancellation, the Trustee shall so notify the Company who
shall upon receipt of such notice, directly or through an agent, take reasonable
steps to contact the remaining Certificateholders concerning surrender of their
Trust Certificates. The costs and expenses of
-44-
maintaining such funds and of contacting Certificateholders shall be paid out of
the assets which remain held. If within two years after the second notice any
Trust Certificates shall not have been surrendered for cancellation, the Trustee
shall pay to the Company all amounts distributable to the Holders thereof and
the Company shall thereafter hold such amounts for the benefit of such Holders.
No interest shall accrue or be payable to any Certificateholder on any amount
held as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this Section 6.01.
Section 6.02. Additional Termination Requirements.
(a) Within 90 days prior to the anticipated Termination Date, the
Certificate Administrator shall adopt and the Certificate Administrator shall
sign a plan of complete liquidation of the Trust Fund meeting the requirements
of Section 860F(a)(4)(A) of the Code pursuant to which the Trustee shall sell or
otherwise dispose of all the remaining assets of the Trust Fund, unless the
Trustee and the Certificate Administrator has received an Opinion of Counsel to
the effect that the failure of the Trust Fund to comply with the requirements of
this Section 6.02(a) will not (i) result in the imposition of taxes on
"prohibited transactions" of the Trust Fund as described in Section 860F of the
Code, or (subject to Section 3.01(f) hereof) (ii) cause the Trust Fund to fail
to qualify as a real estate mortgage investment conduit at any time that any
Trust Certificate is outstanding.
(b) Each Holder of a Trust Certificate hereby irrevocably approves and
appoints the Certificate Administrator as its attorney-in-fact for the purposes
of, adoption of the plan of complete liquidation in accordance with the terms
and conditions of this Agreement.
ARTICLE VII
THE COMPANY AND THE CERTIFICATE ADMINISTRATOR
Section 7.01. Liability of the Company.
The Company and the Certificate Administrator shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by the Company and the Certificate
Administrator herein.
Section 7.02. Merger, Consolidation or Conversion of the Company.
(a) The Company and the Certificate Administrator will each keep in
full effect its existence, rights and franchises as a corporation under the laws
of the state of its incorporation, and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Trust Certificates, the Underlying
Certificates or any of the Mortgage Loans and to perform its respective duties
under this Agreement.
(b) Any Person into which the Company or the Certificate Administrator
may be merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Company or the Certificate Administrator shall be a
party, or any Person succeeding to the business of the Company or the
Certificate Administrator, shall be the successor of the Company or the
-45-
Certificate Administrator, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
each Rating Agency's ratings, if any, of the Trust Certificates in effect
immediately prior to such merger or consolidation will not be qualified, reduced
or withdrawn as a result thereof (as evidenced by a letter to such effect from
each Rating Agency).
(c) Notwithstanding anything else in this Section 7.02 and Section
7.04 to the contrary, the Certificate Administrator may assign its rights and
delegate its duties and obligations under this Agreement; provided that the
Person accepting such assignment or delegation shall execute and deliver to the
Company and the Trustee an agreement, in form and substance reasonably
satisfactory to the Company and the Trustee, which contains an assumption by
such Person of the due and punctual performance and observance of each covenant
and condition to be performed or observed by the Certificate Administrator under
this Agreement; provided further that each Rating Agency's rating of the Classes
of Trust Certificates that have been rated in effect immediately prior to such
assignment and delegation will not be qualified, reduced or withdrawn as a
result of such assignment and delegation (as evidenced by a letter to such
effect from each Rating Agency). In the case of any such assignment and
delegation, the Certificate Administrator shall be released from its obligations
under this Agreement, except that the Certificate Administrator shall remain
liable for all liabilities and obligations incurred by it as Certificate
Administrator hereunder prior to the satisfaction of the conditions to such
assignment and delegation set forth in the preceding sentence.
Section 7.03. Limitation on Liability of the Company and Others.
(a) Neither the Company, the Certificate Administrator nor any of the
directors, officers, employees or agents of the Company or the Certificate
Administrator shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Company, the
Certificate Administrator or any such Person against any breach of warranties or
representations made herein or any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations and duties
hereunder. The Company, the Certificate Administrator and any director, officer,
employee or agent of the Company or the Certificate Administrator may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Company,
the Certificate Administrator and any director, officer, employee or agent of
the Company or the Certificate Administrator shall be indemnified by the Trust
Fund and held harmless against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement or the Trust
Certificates, other than any loss, liability or expense related to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder and the Company and the
Certificate Administrator shall be entitled to be reimbursed therefor out of
amounts attributable to the Underlying Certificates on deposit in the Trust
Certificate Account as provided by Section 3.04 and, on the Distribution Date(s)
following such reimbursement, the aggregate of such expenses and costs shall be
allocated in reduction of the Accrued Certificate Interest on each Class
entitled thereto in the same manner as if such expenses and costs constituted a
Prepayment Interest Shortfall.
-46-
(b) Neither the Company nor the Certificate Administrator shall be
under any obligation to appear in, prosecute or defend any legal or
administrative action, proceeding, hearing or examination that is not incidental
to its respective duties under this Agreement and which in its opinion may
involve it in any expense or liability; provided, however, that the Company or
the Certificate Administrator may in its discretion undertake any such action,
proceeding, hearing or examination that it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action, proceeding, hearing or examination and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Company and the Certificate Administrator shall be entitled
to be reimbursed therefor out of amounts attributable to the Underlying
Certificates on deposit in the Trust Certificate Account as provided by Section
3.04 and, on the Distribution Date(s) following such reimbursement, the
aggregate of such expenses and costs shall be allocated in reduction of the
Accrued Certificate Interest on each Class entitled thereto in the same manner
as if such expenses and costs constituted a Prepayment Interest Shortfall.
Section 7.04. Company and Certificate Administrator Not to Resign.
Subject to the provisions of Section 7.02, neither the Company nor the
Certificate Administrator shall resign from its respective obligations and
duties hereby imposed on it except upon determination that its duties hereunder
are no longer permissible under applicable law. Any such determination
permitting the resignation of the Company or the Certificate Administrator shall
be evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation by the Certificate Administrator shall become effective
until the Trustee or a successor certificate administrator shall have assumed
the Certificate Administrator's responsibilities and obligations hereunder.
Section 7.05. Successor Certificate Administrator.
In the event that the Master Servicer is removed or replaced in
accordance with the terms of the Pooling and Servicing Agreement, the Trustee
shall become the successor certificate administrator hereunder. The Certificate
Administrator agrees to cooperate with the Trustee in effecting the termination
of the Certificate Administrator's responsibilities and rights hereunder. No
such termination shall release the Certificate Administrator for any liability
that it would otherwise have hereunder for any act or omission prior to the
effective time of such termination.
Section 7.06. Representation and Warranty of Company.
Immediately prior to the conveyance of the Underlying Certificates to
the Trustee pursuant to Section 2.01, the Company had good title to, and was the
sole owner of, the Underlying Certificates free and clear of any pledge, lien,
encumbrance or security interest and such conveyance validly transfers ownership
of the Underlying Certificates to the Trustee free and clear of any pledge,
lien, encumbrance or security interest.
-47-
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment.
(a) This Agreement may be amended from time to time by the Certificate
Administrator, the Company and the Trustee, without the consent of any of the
Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or therein,
which may be inconsistent with any other provisions herein or therein or to
correct any error,
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or desirable to maintain the qualification of
the Trust Fund as a real estate mortgage investment conduit at all times that
any Trust Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund pursuant to the Code that would be a
claim against the Trust Fund, provided that the Trustee has received an Opinion
of Counsel to the effect that (A) such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of the imposition
of any such tax and (B) such action will not adversely affect in any material
respect the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the
Trust Certificate Account, provided that (A) such change shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests
of any Certificateholder and (B) such change shall not adversely affect the
then-current rating of the Trust Certificates, as evidenced by a letter from
each Rating Agency then rating the Trust Certificates to such effect,
(v) to modify, eliminate or add to the provisions of Section
4.02(c) or any other provision hereof restricting transfer of the Class R
Certificate by virtue of their being the "residual interest" in the REMIC,
provided that (A) such change shall not adversely affect the then current
ratings of the Trust Certificates, as evidenced by a letter from the Rating
Agency to such effect, and (B) such change shall not, as evidenced by an Opinion
of Counsel, cause either the Trust Fund or any of the Certificateholders (other
than the transferor) to be subject to a tax caused by a transfer to a Non-United
States Person or a Person that is not a Permitted Transferee, or
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder.
(b) This Agreement may also be amended from time to time by the
Certificate Administrator, the Company and the Trustee with the consent of the
Holders of Trust Certificates evidencing in the aggregate not less than 66% of
the Percentage Interests of each Class of Trust Certificates affected thereby
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Trust Certificates of such Class; provided,
however, that no such amendment shall:
-48-
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Trust Certificate without
the consent of the Holder of such Trust Certificate, or
(ii) reduce the aforesaid percentage of Trust Certificates of any
Class the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Trust Certificates of such
Class then outstanding.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Company or the Trustee in accordance
with such amendment will not result in the imposition of a tax on the Trust Fund
or cause the Trust Fund to fail to qualify as a real estate mortgage investment
conduit at any time that any Trust Certificate is outstanding.
(d) Promptly after the execution of any such amendment the Trustee
shall furnish written notification of the substance of such amendment to each
Certificateholder. It shall not be necessary for the consent of
Certificateholders under this Section 8.01 to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Section 8.02. Counterparts.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 8.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Trust
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a notice of
-49-
a default by the Company or the Trustee in the performance of any obligation
hereunder, and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Trust Certificates entitled to at least 33% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. For the protection and enforcement of the provisions of this
Section, each and every Certificateholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Section 8.04. Governing Law.
This Agreement and the Trust Certificates shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 8.05. Notices.
All demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid (except for notices to the Trustee which shall
be deemed to have been duly given only when received), to (a) in the case of the
Company, 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx
00000, Attention: President, or such other address as may hereafter be furnished
to the Trustee and the Certificate Administrator in writing by the Company, (b)
in the case of the Certificate Administrator, 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxx 00000-0000, Attention: Managing Director/Master Servicing or
such other address as may hereafter be furnished to the Trustee and the Company
in writing by the Certificate Administrator, (c) in the case of the Trustee (i)
for the purposes of Section 5.10 hereof, c/o DTC Transfer Services, 00 Xxxxx
Xxxxxx, Xxxxxxxx Xxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and (ii) for all other
purposes, Corporate Trust Office, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000-0000, Attention: Residential Accredit Loans, Inc. Series
2003-QR24 or such other address as may hereafter be furnished to the Company and
the Certificate Administrator in writing by the Trustee, (d) in the case of
Xxxxx'x, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and (e) in the case of S&P,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any notice required or permitted to
be mailed to a Certificateholder shall be given by first-class mail, postage
prepaid, at the address of such holder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Section 8.06. Notices to the Rating Agencies.
The Company or the Trustee, as applicable, shall notify each Rating
Agency at such time as it is otherwise required pursuant to this Agreement to
give notice of the occurrence of any of the events described in clauses (a),
(b), (d), (e) or (f) below or provide a copy to the Rating Agency at such time
as otherwise required to be delivered pursuant to this Agreement of any of the
statements described in clause (c) below:
(a) a material change or amendment to this Agreement,
-50-
(b) the termination or appointment of a successor Trustee or a change
in the majority ownership of the Trustee,
(c) the statement required to be delivered to the Holders of each
Class of Trust Certificates pursuant to Section 3.06,
(d) a change in the location of the Trust Certificate Account,
(e) the occurrence of the final Distribution Date, and
(f) the repurchase of the Underlying Certificates.
Section 8.07. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Trust Certificates or the rights of the Holders thereof.
Section 8.08. Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders.
Section 8.09. Article and Section Headings,
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
-51-
IN WITNESS WHEREOF, the Company, the Certificate Administrator and the
Trustee have caused their names to be signed hereto by their respective officers
thereunto duly authorized and their respective seals, if required, duly
attested, to be hereunto affixed, all as of the day and year first above
written.
RESIDENTIAL ACCREDIT LOANS, INC.,
as Company
By:
-------------------------------------
Name:
Title:
RESIDENTIAL FUNDING CORPORATION,
as Certificate Administrator
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
EXHIBIT A
FORM OF CLASS A CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-1
Certificate No. 1 [ ]% Pass-Through Rate
Class A-[___] Senior
Date of Trust Agreement: December 12, Percentage Interest: [___]%
2003
Certificate Administrator: Aggregate Initial Certificate
Residential Funding Corporation Principal Balance of the Class A-[__]
Certificates: $[_________]
First Distribution Date: Initial Certificate Principal
December 26, 2003 Balance of this Certificate:
$[__________]
Assumed Final Distribution Date: CUSIP 76110H [___]
July 25, 2033
MORTGAGE TRUST CERTIFICATE
SERIES 2003-QR24
Evidencing a percentage interest in the distributions allocable to the
Class A-[__] Certificates with respect to a Trust Fund consisting primarily
of senior classes of mortgage pass-through certificates issued by a trust
established by RESIDENTIAL ACCREDIT LOANS, INC.
This Certificate is payable solely from the assets of the Trust Fund (as
defined in the Agreement referred to below), and does not represent an
obligation of or interest in Residential Accredit Loans, Inc., the Certificate
Administrator, the Trustee referred to below or GMAC Mortgage Group, Inc. or any
of their affiliates. Neither this Certificate nor the Underlying Certificates
(as defined below) are guaranteed or insured by any governmental agency or
instrumentality or by Residential Accredit Loans, Inc. (hereinafter called the
"Company," which term includes any successor entity under the Agreement referred
to below), the Certificate Administrator, the Trustee or GMAC Mortgage Group,
Inc. or any of their affiliates. Neither the Company, the Certificate
Administrator, GMAC Mortgage Group, Inc. nor any of their affiliates will have
any obligation with respect to any certificate or other obligation secured by or
payable from payments on this Certificate.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Initial
Certificate Principal Balance of this Certificate by the aggregate Initial
Certificate Principal Balance of all Class A-[__] Certificates, both as
specified above) in certain distributions with respect to the Trust Fund
consisting primarily of an interest in a portion of the Residential Accredit
Loans, Inc. Mortgage Asset-Backed Pass-Though Certificates, Series 2003-QS13,
Class A-1, Class A-3, Class A-4 and Class A-9 (collectively, the "Underlying
Certificates"). The Trust Fund was created pursuant to the Trust Agreement dated
as specified above (the "Agreement") among the Company, the Certificate
Administrator and Deutsche Bank Trust Company Americas, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
A-2
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing as described in
the Agreement, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), from Available Funds in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount (of interest and principal, if any) required to be
distributed to Holders of Class A-[___] Certificates on such Distribution Date.
Distributions on this Certificate will be made by the Certificate
Administrator acting on behalf of the Trustee (by wire transfer or otherwise)
for the account of the Person entitled thereto if such Person shall have so
notified the Certificate Administrator, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will
be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose in the City and State of New York. The Initial
Certificate Principal Balance of this Certificate is set forth above. The
Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal and any Realized Losses allocable hereto.
This Certificate is one of a duly authorized issue of certificates issued
in several Classes designated as Mortgage Trust Certificates of the Series
specified hereon. [This Class A-5 Certificate represents the interest of the
Class A-5-1 Component and Class A-5-2 Component.]
The Trust Certificates are limited in right of payment to certain
distributions made to the Underlying Certificates, all as more specifically set
forth herein and in the Agreement.
As provided in the Agreement, withdrawals from the Trust Certificate
Account created for the benefit of Certificateholders may be made by the
Certificate Administrator from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement of certain expenses incurred by the Certificate Administrator, the
Company or the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Certificate Administrator and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, the
Certificate Administrator and the Trustee with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66% of the Percentage
Interests of each Class of Trust Certificates affected thereby. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof in certain circumstances without the consent of
the Holders of any of the Certificates and, in certain additional circumstances,
without the consent of the Holders of certain Classes of Trust Certificates.
A-3
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Trust
Certificates of authorized denominations evidencing the same Class and aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Trust Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Trust
Certificates are exchangeable for new Trust Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Certificate Administrator, the Trustee and the Certificate
Registrar and any agent of the Company, the Certificate Administrator, the
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Company, the Certificate Administrator, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Certificate shall be governed by and construed in accordance with the
laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates and
the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject to the
Underlying Certificates or the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (ii) the
purchase by the Master Servicer from the trust fund relating to the Underlying
Certificates of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
Underlying Certificates. The Pooling and Servicing Agreement permits, but does
not require, the Master Servicer to (i) purchase at a price determined as
provided in the Pooling and Servicing Agreement all remaining Mortgage Loans and
all property acquired in respect of any Mortgage Loan or (ii) purchase in whole,
but not in part, all of the 2003-QS13 Certificates from the holders thereof;
provided, that any such option may only be exercised if the Pool Stated
Principal Balance (as defined in the Pooling and Servicing Agreement) of the
Mortgage Loans as of the Distribution Date upon which the proceeds of any such
purchase are distributed is less than ten percent of the Cut-off Date Principal
Balance (as defined in the Pooling and Servicing Agreement) of the Mortgage
Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-4
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
Dated: December 12, 2003 DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By:
---------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-[___] Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Certificate Registrar
By:
----------------------------------
Authorized Signatory
A-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee) a Percentage Interest evidenced by the within Mortgage Trust
Certificate and hereby authorizes the transfer of registration of such interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate
of a like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
--------------------------------------------------------------------------------
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
Dated:
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ________________________________________ for the account of
____________________________________ account number ________________, or, if
mailed by check, to _________________________________________________________
Applicable statements should be mailed to
________________________________________________________________________________
This information is provided by ____________________________, the assignee
named above, or ____________________________ as its agent.
A-7
EXHIBIT B
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON
OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 4.02(d) OF THE AGREEMENT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE CERTIFICATE ADMINISTRATOR, THE COMPANY
AND THE TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE CODE AND WILL NOT SUBJECT THE CERTIFICATE ADMINISTRATOR, THE COMPANY OR THE
TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
ADMINISTRATOR AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED
STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED
STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN
INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO
TAX AND EXCEPT FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT
SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C)
ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION
521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN
SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER
SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED
ORGANIZATION"), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE
OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH
TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OR
B-1
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. [___] 4.00% Pass-Through Rate
Class R Senior Aggregate Initial Certificate
Principal Balance of the
Date of Trust Agreement: Class R Certificates:
December 12, 2003 $100.00
First Distribution Date: Initial Certificate Principal
December 26, 2003 Balance of this Certificate:
$[_____]
Certificate Administrator:
Residential Funding Corporation Percentage Interest: [_____]%
Assumed Final Distribution Date: CUSIP: 76110H [___]
July 25, 2033
MORTGAGE TRUST CERTIFICATE,
SERIES 2003-QR24
evidencing a percentage interest in any distributions allocable to the
Class R Certificates with respect to the Trust Fund consisting primarily of
senior classes of mortgage pass-through certificates issued by a trust
established by RESIDENTIAL ACCREDIT LOANS, INC.
This Certificate is payable solely from the assets of the Trust Fund
(as defined in the Agreement referred to below), and does not represent an
obligation of or interest in Residential Accredit Loans, Inc., the Certificate
Administrator, the Trustee referred to below or GMAC Mortgage Group, Inc. or any
of their affiliates. Neither this Certificate nor the Underlying Certificates
(as defined below) are guaranteed or insured by any governmental agency or
instrumentality or by Residential Accredit Loans, Inc. (hereinafter called the
"Company," which term includes any successor entity under the Agreement referred
to below), the Certificate Administrator, the Trustee or GMAC Mortgage Group,
Inc. or any of their affiliates. Neither the Company, the Certificate
Administrator, GMAC Mortgage Group, Inc. nor any of their affiliates will have
any obligation with respect to any certificate or other obligation secured by or
payable from payments on this Certificate.
This certifies that [_________________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the Initial Certificate Principal
B-2
Balance of this Certificate by the aggregate Initial Certificate Principal
Balance of all Class R Certificates, both as specified above) in certain
distributions with respect to the Trust Fund consisting primarily of the
Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through Series
2003-QS13, Class A-1, Class A-3, Class A-4 and Class A-9 (collectively, the
"Underlying Certificates"). The Trust Fund was created pursuant to the Trust
Agreement dated as specified above (the "Agreement") among the Company, the
Certificate Administrator and Deutsche Bank Trust Company Americas, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), from
the Available Funds in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount (of interest and principal, if any)
required to be distributed to Holders of Class R Certificates on such
Distribution Date.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions set forth in the Agreement to the effect that (i) each
person holding or acquiring any Ownership Interest in this Certificate must be a
United States Person and a Permitted Transferee, (ii) the transfer of any
Ownership Interest in this Certificate will be conditioned upon the delivery to
the Trustee of, among other things, an affidavit to the effect that it is a
United States Person and Permitted Transferee, (iii) any attempted or purported
transfer of any Ownership Interest in this Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported transferee, and (iv) if any person other than a United States Person
and a Permitted Transferee acquires any Ownership Interest in this Certificate
in violation of such restrictions, then the Company will have the right, in its
sole discretion and without notice to the Holder of this Certificate, to sell
this Certificate to a purchaser selected by the Company, which purchaser may be
the Company, or any affiliate of the Company, on such terms and conditions as
the Company may choose.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose in the City and State of New York. The Initial
Certificate Principal Balance of this Certificate is set forth above. The
Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal and any Realized Losses allocable hereto.
Notwithstanding the reduction of the Certificate Principal Balance hereof to
zero, this Certificate will remain outstanding under the Agreement and the
Holder hereof may have additional obligations with respect to this Certificate,
including tax liabilities, and may be entitled to certain additional
distributions hereon, in accordance with the terms and provisions of the
Agreement.
No transfer of this Class R Certificate will be made unless the
Trustee has received either (i) an opinion of counsel acceptable to and in form
and substance satisfactory to the Trustee,
B-3
the Company and the Certificate Administrator with respect to the permissibility
of such transfer under the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and Section 4975 of the Internal Revenue Code (the "Code")
and stating, among other things, that the transferee's acquisition of a Class R
Certificate will not constitute or result in a non-exempt prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code or (ii) a representation
letter, in the form as described by the Agreement, stating that the transferee
is not an employee benefit or other plan subject to the prohibited transaction
provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other person
(including an investment manager, a named fiduciary or a trustee of any Plan)
acting, directly or indirectly, on behalf of or purchasing any Certificate with
"plan assets" of any Plan.
This Certificate is one of a duly authorized issue of the certificates
issued in several Classes designated as Mortgage Trust Certificates of the
Series specified hereon.
The Trust Certificates are limited in right of payment to certain
distributions made to the Underlying Certificates.
As provided in the Agreement, withdrawals from the Trust Certificate
Account created for the benefit of Certificateholders may be made by the
Certificate Administrator from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement of certain expenses incurred by the Certificate Administrator, the
Company or the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Certificate Administrator and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, the
Certificate Administrator and the Trustee with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66% of the Percentage
Interests of each Class of Trust Certificates affected thereby. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof in certain circumstances without the consent of
the Holders of any of the Certificates and, in certain additional circumstances,
without the consent of the Holders of certain Classes of Trust Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee in the City and
State of New York, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Trust Certificates of authorized denominations evidencing the same Class and
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Trust Certificates are issuable only as registered Certificates
without coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Trust Certificates are exchangeable for new Trust
B-4
Certificates of authorized denominations evidencing the same Class and aggregate
Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Certificate Administrator, the Trustee and the
Certificate Registrar and any agent of the Company, the Certificate
Administrator, the Trustee or the Certificate Registrar may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Company, the Certificate Administrator, the Trustee nor any such
agent shall be affected by notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the
Certificates and the Trust Fund created thereby shall terminate upon the payment
to Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject to the
Underlying Certificates or the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (ii) the
purchase by the Master Servicer from the trust fund relating to the Underlying
Certificates of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
Underlying Certificates. The Pooling and Servicing Agreement permits, but does
not require, the Master Servicer to (i) purchase at a price determined as
provided in the Agreement all remaining Mortgage Loans and all property acquired
in respect of any Mortgage Loan or (ii) purchase in whole, but not in part, all
of the 2003-QS13 Certificates from the holders thereof; provided, that any such
option may only be exercised if the Pool Stated Principal Balance (as defined in
the Pooling and Servicing Agreement) of the Mortgage Loans as of the
Distribution Date upon which the proceeds of any such purchase are distributed
is less than ten percent of the Cut-off Date Principal Balance (as defined in
the Pooling and Servicing Agreement) of the Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purpose
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: December 12, 2003 DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By:
------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Certificate Registrar
By:
------------------------------------
Authorized Signatory
B-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________ (Please print or typewrite name and
address including postal zip code of assignee) a Percentage Interest evidenced
by the within Mortgage Trust Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of the
Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________________ for the
account of ______________________ account number _____________, or, if mailed by
check, to _____________________ Applicable statements should be mailed to
___________________.
This information is provided by ________________, the assignee named
above, or ___________, as its agent.
B-7
EXHIBIT C-1
TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
)ss.
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or
beneficial owner of the Mortgage Trust Certificates, Series ____-___, Class R
(the "Owner")), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of ___________ ] [the United States], on
behalf of which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" or an electing large partnership as of [date of transfer] within
the meaning of Sections 860E(e)(5) and 775, respectively, of the Internal
Revenue Code of 1986, as amended (the "Code") or an electing large partnership
under Section 775(a) of the Code, (ii) will endeavor to remain other than a
disqualified organization for so long as it retains its ownership interest in
the Class R Certificates, and (iii) is acquiring the Class R Certificates for
its own account or for the account of another Owner from which it has received
an affidavit and agreement in substantially the same form as this affidavit and
agreement. (For this purpose, a "disqualified organization" means an electing
large partnership under Section 775 of the Code, the United States, any state or
political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class R Certificates to disqualified organizations or electing
large partnerships, under the Code, that applies to all transfers of Class R
Certificates after March 31, 1988; (ii) that such tax would be on the transferor
(or, with respect to transfers to electing large partnerships, on each such
partnership), or, if such transfer is through an agent (which person includes a
broker, nominee or middleman) for a disqualified organization, on the agent;
(iii) that the person (other than with respect to transfers to electing large
partnerships) otherwise liable for the tax shall be relieved of liability for
the tax if the transferee furnishes to such person an affidavit that the
transferee is not a disqualified organization and, at the time of transfer, such
person does not have actual knowledge that the affidavit is false; and (iv) that
the Class R Certificates may be "noneconomic residual interests" within the
meaning of Treasury regulations promulgated pursuant to the Code and that the
transferor of a noneconomic residual interest will remain liable for any taxes
due with respect to the income on such residual interest, unless no significant
purpose of the transfer was to impede the assessment or collection of tax.
C-1-1
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding Class R Certificates if either the pass-through entity is an
electing large partnership under Section 775 of the Code or if at any time
during the taxable year of the pass-through entity a disqualified organization
is the record holder of an interest in such entity. (For this purpose, a "pass
through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.)
5. The Owner is either (i) a citizen or resident of the United States,
(ii) a corporation, partnership or other entity treated as a corporation or a
partnership for U.S. federal income tax purposes and created or organized in or
under the laws of the United States, any state thereof or the District of
Columbia (other than a partnership that is not treated as a United States person
under any applicable Treasury regulations), (iii) an estate that is described in
Section 7701(a)(30)(D) of the Code, or (iv) a trust that is described in Section
7701(a)(30)(E) of the Code.
6. The Owner hereby agrees that it will not cause income from the
Class R Certificates to be attributable to a foreign permanent establishment or
fixed base (within the meaning of an applicable income tax treaty) of the Owner
or another United States taxpayer.
7. That the Owner is aware that the Trustee will not register the
transfer of any Class R Certificates unless the transferee, or the transferee's
agent, delivers to it an affidavit and agreement, among other things, in
substantially the same form as this affidavit and agreement. The Owner expressly
agrees that it will not consummate any such transfer if it knows or believes
that any of the representations contained in such affidavit and agreement are
false.
8. That the Owner has reviewed the restrictions set forth on the face
of the Class R Certificates and the provisions of Section 4.02(c) of the Trust
Agreement under which the Class R Certificates were issued. The Owner expressly
agrees to be bound by and to comply with such restrictions and provisions.
9. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R Certificates will only be
owned, directly or indirectly, by an Owner that is not a disqualified
organization.
10. The Owner's Taxpayer Identification Number is ___________.
11. This affidavit and agreement relates only to the Class R
Certificates held by the Owner and not to any other holder of the Class R
Certificates. The Owner understands that the liabilities described herein relate
only to the Class R Certificates.
12. That no purpose of the Owner relating to the transfer of any of
the Class R Certificates by the Owner is or will be to impede the assessment or
collection of any tax; in making this representation, the Owner warrants that
the Owner is familiar with (i) Treasury Regulation Section 1.860E-1(c) and
recent amendments thereto, effective as of July 19, 2002, and (ii) the preamble
describing the adoption of the amendments to such regulation, which is attached
hereto as Annex 1.
13. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain
C-1-2
outstanding. In this regard, the Owner hereby represents to and for the benefit
of the person from whom it acquired the Class R Certificate that the Owner
intends to pay taxes associated with holding such Class R Certificate as they
become due, fully understanding that it may incur tax liabilities in excess of
any cash flows generated by the Class R Certificate.
14. That the Owner has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as any
of the Class R Certificates remain outstanding.
15. The Owner is not an employee benefit plan or other plan or
arrangement subject to the prohibited transaction provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Code (a "Plan"), or an investment manager, named fiduciary or a trustee of
any Plan, or any other Person acting, directly or indirectly, on behalf of or
purchasing any Certificate with "plan assets" of any Plan.
C-1-3
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this ______ day of _____________, 200__.
[NAME OF OWNER]
By:
------------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
_______________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Owner, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Owner.
Subscribed and sworn before me this ________ day of
________________________, 200__.
----------------------------------------
NOTARY PUBLIC
COUNTY OF_______________________________
STATE OF________________________________
My Commission expires the ____ day of
_________, 20__.
C-1-4
ANNEX 1 TO EXHIBIT C-1
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 9004]
RIN 1545-AW98
Real Estate Mortgage Investment Conduits
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
--------------------------------------------------------------------------------
SUMMARY: This document contains final regulations relating to safe harbor
transfers of noneconomic residual interests in real estate mortgage investment
conduits (REMICs). The final regulations provide additional limitations on the
circumstances under which transferors may claim safe harbor treatment.
DATES: Effective Date: These regulations are effective July 19, 2002.
Applicability Date: For dates of applicability, see Sec. 1.860E-
(1)(c)(10).
FOR FURTHER INFORMATION CONTACT: Xxxxxxxx Xxxxxxxxxx at (000) 000-0000 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information in this final rule has been reviewed and,
pending receipt and evaluation of public comments, approved by the Office of
Management and Budget (OMB) under 44 U.S.C. 3507 and assigned control number
1545-1675.
The collection of information in this regulation is in Sec. 1.860E-
1(c)(5)(ii). This information is required to enable the IRS to verify that a
taxpayer is complying with the conditions of this regulation. The collection of
information is mandatory and is required. Otherwise, the taxpayer will not
receive the benefit of safe harbor treatment as provided in the regulation. The
likely respondents are businesses and other for-profit institutions.
Comments on the collection of information should be sent to the Office of
Management and Budget, Attn: Desk Officer for the Department of the Treasury,
Office of Information and Regulatory Affairs, Xxxxxxxxxx, XX, 00000, with copies
to the Internal Revenue Service, Attn: IRS Reports Clearance Officer,
W:CAR:MP:FP:S, Xxxxxxxxxx, XX 00000. Comments on the collection of information
should be received by September 17, 2002. Comments are specifically requested
concerning:
Whether the collection of information is necessary for the proper
performance of the functions of the Internal Revenue Service, including
C-1-5
whether the information will have practical utility;
The accuracy of the estimated burden associated with the collection of
information (see below);
How the quality, utility, and clarity of the information to be collected
may be enhanced;
How the burden of complying with the collection of information may be
minimized, including through the application of automated collection techniques
or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance,
and purchase of service to provide information.
An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a valid control
number assigned by the Office of Management and Budget.
The estimated total annual reporting burden is 470 hours, based on an
estimated number of respondents of 470 and an estimated average annual burden
hours per respondent of one hour.
Books or records relating to a collection of information must be retained
as long as their contents may become material in the administration of any
internal revenue law. Generally, tax returns and tax return information are
confidential, as required by 26 U.S.C. 6103.
Background
This document contains final regulations regarding the proposed amendments
to 26 CFR part 1 under section 860E of the Internal Revenue Code (Code). The
regulations provide the circumstances under which a transferor of a noneconomic
REMIC residual interest meeting the investigation and representation
requirements may avail itself of the safe harbor by satisfying either the
formula test or the asset test.
Final regulations governing REMICs, issued in 1992, contain rules governing
the transfer of noneconomic REMIC residual interests. In general, a transfer of
a noneconomic residual interest is disregarded for all tax purposes if a
significant purpose of the transfer is to
[[Page 47452]]
enable the transferor to impede the assessment or collection of tax. A purpose
to impede the assessment or collection of tax (a wrongful purpose) exists if the
transferor, at the time of the transfer, either knew or should have known that
the transferee would be unwilling or unable to pay taxes due on its share of the
REMIC's taxable income.
Under a safe harbor, the transferor of a REMIC noneconomic residual
interest is presumed not to have a wrongful purpose if two requirements are
satisfied: (1) the transferor conducts a reasonable investigation of the
transferee's financial condition (the investigation requirement); and (2) the
transferor secures a representation from the transferee to the effect that the
transferee understands the tax obligations associated with holding a residual
interest and intends to pay those taxes (the representation requirement).
The IRS and Treasury have been concerned that some transferors of
noneconomic residual interests claim they satisfy the safe harbor even in
situations where the economics of the transfer clearly indicate the transferee
is unwilling or unable to pay the tax associated with holding the interest. For
this reason, on February 7, 2000, the IRS published in the Federal Register (65
FR 5807) a notice of proposed rulemaking (REG-100276-97; REG-122450-98) designed
to clarify the safe harbor by adding the "formula test," an economic test. The
proposed
C-1-6
regulation provides that the safe harbor is unavailable unless the present value
of the anticipated tax liabilities associated with holding the residual interest
does not exceed the sum of: (1) The present value of any consideration given to
the transferee to acquire the interest; (2) the present value of the expected
future distributions on the interest; and (3) the present value of the
anticipated tax savings associated with holding the interest as the REMIC
generates losses.
The notice of proposed rulemaking also contained rules for FASITs. Section
1.860H-6(g) of the proposed regulations provides requirements for transfers of
FASIT ownership interests and adopts a safe harbor by reference to the safe
harbor provisions of the REMIC regulations.
In January 2001, the IRS published Rev. Proc. 2001-12 (2001-3 I.R.B. 335)
to set forth an alternative safe harbor that taxpayers could use while the IRS
and the Treasury considered comments on the proposed regulations. Under the
alternative safe harbor, if a transferor meets the investigation requirement and
the representation requirement but the transfer fails to meet the formula test,
the transferor may invoke the safe harbor if the transferee meets a two- prong
test (the asset test). A transferee generally meets the first prong of this test
if, at the time of the transfer, and in each of the two years preceding the year
of transfer, the transferee's gross assets exceed $100 million and its net
assets exceed $10 million. A transferee generally meets the second prong of this
test if it is a domestic, taxable corporation and agrees in writing not to
transfer the interest to any person other than another domestic, taxable
corporation that also satisfies the requirements of the asset test. A transferor
cannot rely on the asset test if the transferor knows, or has reason to know,
that the transferee will not comply with its written agreement to limit the
restrictions on subsequent transfers of the residual interest.
Rev. Proc. 2001-12 provides that the asset test fails to be satisfied in
the case of a transfer or assignment of a noneconomic residual interest to a
foreign branch of an otherwise eligible transferee. If such a transfer or
assignment were permitted, a corporate taxpayer might seek to claim that the
provisions of an applicable income tax treaty would resource excess inclusion
income as foreign source income, and that, as a consequence, any U.S. tax
liability attributable to the excess inclusion income could be offset by foreign
tax credits. Such a claim would impede the assessment or collection of U.S. tax
on excess inclusion income, contrary to the congressional purpose of assuring
that such income will be taxable in all events. See, e.g., sections 860E(a)(1),
(b), (e) and 860G(b) of the Code.
The Treasury and the IRS have learned that certain taxpayers transferring
noneconomic residual interests to foreign branches have attempted to rely on the
formula test to obtain safe harbor treatment in an effort to impede the
assessment or collection of U.S. tax on excess inclusion income. Accordingly,
the final regulations provide that if a noneconomic residual interest is
transferred to a foreign permanent establishment or fixed base of a U.S.
taxpayer, the transfer is not eligible for safe harbor treatment under either
the asset test or the formula test. The final regulations also require a
transferee to represent that it will not cause income from the noneconomic
residual interest to be attributable to a foreign permanent establishment or
fixed base.
Section 1.860E-1(c)(8) provides computational rules that a taxpayer may use
to qualify for safe harbor status under the formula test.
C-1-7
Section 1.860E-1(c)(8)(i) provides that the transferee is presumed to pay tax at
a rate equal to the highest rate of tax specified in section 11(b). Some
commentators were concerned that this presumed rate of taxation was too high
because it does not take into consideration taxpayers subject to the alternative
minimum tax rate. In light of the comments received, this provision has been
amended in the final regulations to allow certain transferees that compute their
taxable income using the alternative minimum tax rate to use the alternative
minimum tax rate applicable to corporations.
Additionally, Sec. 1.860E-1(c)(8)(iii) provides that the present values in
the formula test are to be computed using a discount rate equal to the
applicable Federal short-term rate prescribed by section 1274(d). This is a
change from the proposed regulation and Rev. Proc. 2001-12. In those
publications the provision stated that "present values are computed using a
discount rate equal to the applicable Federal rate prescribed in section 1274(d)
compounded semiannually" and that "[a] lower discount rate may be used if the
transferee can demonstrate that it regularly borrows, in the course of its trade
or business, substantial funds at such lower rate from an unrelated third
party." The IRS and the Treasury Department have learned that, based on this
provision, certain taxpayers have been attempting to use unrealistically low or
zero interest rates to satisfy the formula test, frustrating the intent of the
test. Furthermore, the Treasury Department and the IRS believe that a rule
allowing for a rate other than a rate based on an objective index would add
unnecessary complexity to the safe harbor. As a result, the rule in the proposed
regulations that permits a transferee to use a lower discount rate, if the
transferee can demonstrate that it regularly borrows substantial funds at such
lower rate, is not included in the final regulations; and the Federal short-term
rate has been substituted for the applicable Federal rate. To simplify
taxpayers' computations, the final regulations allow use of any of the published
short-term rates, provided that the present values are computed with a
corresponding period of compounding. With the exception of the provisions
relating to transfers to foreign branches, these changes generally have the
proposed applicability date of February 4, 2000, but taxpayers may choose to
apply the interest rate formula set forth in the proposed regulation and Rev.
Proc. 2001-12 for transfers occurring before August 19, 2002.
It is anticipated that when final regulations are adopted with respect to
[[Page 47453]]
FASITs, Sec. 1.860H-6(g) of the proposed regulations will be adopted in
substantially its present form, with the result that the final regulations
contained in this document will also govern transfers of FASIT ownership
interests with substantially the same applicability date as is contained in this
document.
Effect on Other Documents
Rev. Proc. 2001-12 (2001-3 I.R.B. 335) is obsolete for transfers of
noneconomic residual interests in REMICs occurring on or after August 19, 2002.
Special Analyses
C-1-8
It is hereby certified that these regulations will not have a significant
economic impact on a substantial number of small entities. This certification is
based on the fact that it is unlikely that a substantial number of small
entities will hold REMIC residual interests. Therefore, a Regulatory Flexibility
Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not
required. It has been determined that this Treasury decision is not a
significant regulatory action as defined in Executive Order 12866. Therefore, a
regulatory assessment is not required. It also has been determined that sections
553(b) and 553(d) of the Administrative Procedure Act (5 U.S.C. chapter 5) do
not apply to these regulations.
Drafting Information
The principal author of these regulations is Xxxxxxxx Xxxxxxxxxx. However,
other personnel from the IRS and Treasury Department participated in their
development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and record keeping requirements.
26 CFR Part 602
Reporting and record keeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in part as
follows:
Authority: 26 U.S.C. 7805 * * *
C-1-9
EXHIBIT C-2
Form of Transferor Certificate
__________________, 2__
Residential Accredit Loans, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Residential Funding Corporation
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Deutsche Bank Trust Company Americas
Corporate Trust Xxxxxx
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Re: Residential Accredit Loans, Inc., Mortgage Trust Certificates,
Series 2003-QR24, Class R Certificates
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
________ (the "Seller") to (the "Purchaser") of a __% Percentage Interest in
Residential Accredit Loans, Inc., Mortgage Trust Certificates, Series 2003-QR24
, Class R (the "Certificates"), pursuant to Section 4.02 of the Trust Agreement
(the "Trust Agreement"), dated as of December 12, 2003 among Residential
Accredit Loans, Inc., as depositor (the "Company"), Residential Funding
Corporation, as certificate administrator (the "Certificate Administrator") and
Deutsche Bank Trust Company Americas, as trustee (the "Trustee"). All terms used
herein and not otherwise defined shall have the meanings set forth in the Trust
Agreement. The Seller hereby certifies, represents and warrants to, and
covenants with, the Company and the Trustee that:
1. No purpose of the Seller relating to transfer of the Certificate by
the Seller to the Purchaser is or will be to impede the assessment or collection
of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee a transfer affidavit and agreement in the form attached to the Trust
Agreement as Exhibit C-1. The Seller does not know or believe that any
representation contained therein is false.
3. The Seller has no actual knowledge that the proposed Transferee is
not both a United States Person and a Permitted Transferee.
4. The Seller has at the time of the transfer conducted a reasonable
investigation of the financial condition of the Purchaser as contemplated by
Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Seller has determined that the Purchaser has historically
paid its debts as they become due and has found no significant evidence to
C-2-1
indicate the Purchaser will not continue to pay its debts as they become due in
the future. The Seller understands that the transfer of the Certificate may not
be respected for United States income tax purposes (and the Seller may continue
to be liable for United States income taxes associated therewith) unless the
Seller has conducted such an investigation.
5. Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act, in any
manner set forth in the foregoing sentence with respect to any Certificate. The
Seller has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Trust Agreement.
Very truly yours,
By:
----------------------------
Name:
Title:
C-2-2
EXHIBIT D
Pooling and Servicing Agreement
D-1-1
EXHIBIT E
Form of Form 10K Certification
I, [identify the certifying individual], certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[____], and all reports on Form 8-K containing distribution or servicing reports
filed in respect of periods included in the year covered by that annual report,
of the trust (the "Trust") created pursuant to the Trust Agreement (the "Trust
Agreement") among Residential Accredit Loans, Inc. (the "Company"), Residential
Funding Corporation (the "Certificate Administrator") and [Name of Trustee] (the
"Trustee");
2. Based on my knowledge, the information in these reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required to be provided
to the Trustee by the Certificate Administrator under the Trust Agreement for
inclusion in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by the
Certificate Administrator under the Trust Agreement and based upon my knowledge
and the annual compliance review required under the Trust Agreement, and, except
as disclosed in the reports, the Certificate Administrator has fulfilled its
obligations under the Trust Agreement; and
5. The reports disclose all significant deficiencies relating to the
Certificate Administrator's compliance with the minimum servicing standards
based upon the report provided by an independent public accountant, after
conducting a review in compliance with the Uniform Single Attestation Program
for Mortgage Bankers as set forth in the Trust Agreement, that is included in
these reports.
In giving the certifications above, I have reasonably relied on the
information provided to me by the following unaffiliated parties: [the Trustee].
Date:_______________________
*
----------------------------
Name:
Title:
* to be signed by the senior officer in charge of the servicing functions of the
Certificate Administrator
E-1
EXHIBIT F
Form of Back-up Certification to Form 10K Certification
The undersigned, a Responsible Officer of [_________] (the "Trustee")
certifies that:
(a) The Trustee has performed all of the duties specifically required to be
performed by it pursuant to the provisions of the Trust Agreement dated as of
[_________], 20[__] (the "Agreement") by and among [_______________],
Residential Funding Corporation and the Trustee in accordance with the standards
set forth therein.
(b) Based on my knowledge, the list of Certificateholders as shown on the
Certificate Register as of the end of each calendar year that is provided by the
Trustee pursuant to the Agreement is accurate as of the last day of the 20[__]
calendar year.
Capitalized terms used and not defined herein shall have the meanings given such
terms in the Agreement.
IN WITNESS WHEREOF, I have duly executed this certificate as of _________,
20__.]
-------------------------------
Name:
Title:
F-1
