EXHIBIT 4.2
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FORM OF TRUST AGREEMENT
RESIDENTIAL ASSET SECURITIES CORPORATION
Company,
[NAME OF CERTIFICATE ADMINISTRATOR]
Certificate Administrator
and
[NAME OF TRUSTEE]
Trustee
-------------------------------
TRUST AGREEMENT
Dated as of [ , 200 ]
-------------------------------
Mortgage Asset-Backed Pass-Through Certificates
Series [200 - ]
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms................................................. 2
ARTICLE II
CONVEYANCE OF THE UNDERLYING MORTGAGE SECURITIES;
ORIGINAL ISSUANCE OF THE CERTIFICATES
Section 2.01. Conveyance of the Underlying Agency Securities................ 11
Section 2.02. Acceptance by Trustee......................................... 12
Section 2.03. Execution and Authentication of Certificates.................. 12
ARTICLE III
ADMINISTRATION OF THE UNDERLYING AGENCY SECURITIES;
REPORTS TO CERTIFICATEHOLDERS
Section 3.01. Administration of the Trust Fund and the
Underlying Agency Securities.................................. 12
Section 3.02. Collection of Monies.......................................... 13
Section 3.03. Establishment of Certificate Account; Deposits
in Certificate Account........................................ 13
Section 3.04. Permitted Withdrawals From the Certificate Account............ 14
Section 3.05. Annual Statement as to Compliance............................. 14
Section 3.06. Annual Independent Public Accountants' Servicing Report....... 15
Section 3.07. Rights of the Company in Respect of the
Certificate Administrator..................................... 15
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Distributions................................................. 16
Section 4.02. Statements to Certificateholders.............................. 18
Section 4.03. Access to Certain Documentation and Information............... 19
Section 4.04. Permitted Investments......................................... 19
Section 4.05. Exchange Act Reporting........................................ 19
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.............................................. 20
Section 5.02. Registration of Transfer and Exchange of Certificates......... 21
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates............. 25
Section 5.04. Persons Deemed Owners......................................... 25
Section 5.05. Appointment of Paying Agent................................... 25
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TABLE OF CONTENTS
ARTICLE VI
THE COMPANY AND THE CERTIFICATE ADMINISTRATOR
Section 6.01. Respective Liabilities of the Company and the
Certificate Administrator..................................... 26
Section 6.02. Merger, Consolidation or Conversion of the Company
or the Certificate Administrator.............................. 26
Section 6.03. Limitation on Liability of the Company, the
Certificate Administrator and Others.......................... 26
Section 6.04. Company and Certificate Administrator Not to Resign........... 27
ARTICLE VII
DEFAULT
Section 7.01. Events of Default............................................. 28
Section 7.02. Trustee or Company to Act; Appointment of Successor........... 29
Section 7.03. Notification to Certificateholders............................ 30
Section 7.04. Waiver of Events of Default................................... 30
ARTICLE VIII
THE TRUSTEE
Section 8.01. Duties of Trustee............................................. 30
Section 8.02. Certain Matters Affecting the Trustee......................... 32
Section 8.03. Trustee Not Liable for Certificates or
Underlying Agency Securities.................................. 34
Section 8.04. Trustee May Own Certificates.................................. 34
Section 8.05. Certificate Administrator to Pay Trustee's
Fees and Expenses; Indemnification............................ 34
Section 8.06. Eligibility Requirements for Trustee.......................... 35
Section 8.07. Resignation and Removal of the Trustee........................ 36
Section 8.08. Successor Trustee............................................. 36
Section 8.09. Merger or Consolidation of Trustee............................ 37
Section 8.10. Appointment of Co-Trustee or Separate Trustee................. 37
Section 8.11. Appointment of Office or Agency............................... 38
ARTICLE IX
TERMINATION
Section 9.01. Termination................................................... 38
Section 9.02. Additional Termination Requirements........................... 40
ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration.......................................... 41
Section 10.02. Certificate Administrator and Trustee
Indemnification............................................... 44
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment..................................................... 44
Section 11.02. Counterparts.................................................. 46
Section 11.03. Limitation on Rights of Certificateholders.................... 46
Section 11.04. Governing Law................................................. 47
Section 11.05. Notices....................................................... 47
Section 11.06. Notices to Rating Agency...................................... 47
Section 11.07. Severability of Provisions.................................... 48
Section 11.08. Successors and Assigns........................................ 48
Section 11.09. Article and Section Headings.................................. 48
ARTICLE XII
COMPLIANCE WITH REGULATION AB
Section 12.01. Intent of the Parties; Reasonableness......................... 48
Section 12.02. Additional Representations and Warranties
of the Trustee................................................ 49
Section 12.03. Information to Be Provided by the Trustee..................... 49
Section 12.04. Report on Assessment of Compliance and Attestation............ 49
Section 12.05. Indemnification; Remedies..................................... 50
Exhibit A-1 Form of Class [A-1][A-2][A-3][S] Certificate
Exhibit A-2 Form of Class R Certificate
Exhibit B-1 Form of Transfer Affidavit and Agreement
Exhibit B-2 Form of Transferor Certificate
Exhibit C Back-Up Certification of Trustee
Exhibit D Servicing Criteria
THIS TRUST AGREEMENT, dated as of [ 1, 200 ], by and among Residential
Asset Securities Corporation, as the company (together with its permitted
successors and assigns, the "Company"), [ ] (together with its permitted
successors and assigns, the "Certificate Administrator") and [ ], as trustee
(together with its permitted successors and assigns (the "Trustee")).
PRELIMINARY STATEMENT
The Company is the owner of the Underlying Agency Securities being
conveyed by it to the Trustee for inclusion in the Trust Fund and has duly
authorized the execution and delivery of this Agreement to provide for the sale
and conveyance to the Trustee of the Underlying Agency Securities and the
issuance of the Mortgage Asset-Backed Pass-Through Certificates, Series
[200_-__], Class [A-1], Class [A-2], Class [A-3], Class [S], and Class R
(collectively, the "Certificates"), representing in the aggregate all of the
"regular interests" and "residual interests" in the Trust Fund, which
Certificates are issuable as provided in this Agreement. All covenants and
agreements made by the Company, the Certificate Administrator and the Trustee
herein are for the benefit of the Holders of the Certificates. The Company and
the Certificate Administrator are entering into this Agreement, and the Trustee
is accepting the trusts created hereby, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
The Underlying Agency Securities are [GNMA] [I] [II] Certificates and are
identified as [_______________]. The Aggregate Underlying Certificate Balance as
of the Closing Date will be $[_____________].
The following table sets forth the designation, Pass-Through Rate,
aggregate Initial Certificate Principal Balance, features, Maturity Date and
initial rating for each Class of Certificates comprising the interests in the
Trust Fund created hereunder.
Aggregate
Pass-Through Initial Principal Maturity Initial
Designation Rate Balance Features Date Rating
----------- ---- ------- -------- ---- ------
[S&P] [Fitch] [Moody's]
----- ------- ---------
Class [A-1] [________]% $[____________] Sequential
Class [A-2] [________]% $[____________] Sequential
Class [A-3] [________]% $[____________] Sequential/
Accrual
Class [S] [________]% $[____________] Fixed Strip
Class R [________]% $[____________] Residual
In consideration of the premises and the mutual agreements herein
contained, the Company, the Certificate Administrator and the Trustee agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Accretion Termination Date: With respect to the Class [A-3] Certificates,
the first Distribution Date on which the Certificate Principal Balances of the
Class R, Class [A-1] and Class [A-2] Certificates have been reduced to zero.
Accretion Amount: As to any Distribution Date, the amount set forth in
Section 4.01(b).
Accrued Certificate Interest: With respect to each Distribution Date, (a)
as to each Class of Certificates (other than the Class [S] Certificates), one
month's interest accrued on the Certificate Principal Balance of the
Certificates of such Class at the related Pass-Through Rate and (b) in the case
of the Class [S] Certificates, one month's interest accrued on the related
Notional Amount at the related Pass-Through Rate. Accrued Certificate Interest
will be calculated on the basis of a 360-day year consisting of twelve 30-day
months. In each case, Accrued Certificate Interest on any Class of Certificates
will be reduced by the amount (to the extent such amount is allocated to the
Underlying Agency Securities) of the following shortfalls: (i) Prepayment
Interest Shortfalls, and (ii) any other interest shortfalls, including interest
that is not collectible from the Mortgagor pursuant to the Soldiers' and
Sailors' Civil Relief Act of 1940, as amended; with all such reductions
allocated among the Certificates in proportion to their respective amounts of
Accrued Certificate Interest which would have resulted absent such reductions.
Affiliate: An "affiliate" of, or Person "affiliated" with, a specified
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.
Aggregate Underlying Certificate Balance: As of any date of determination,
the aggregate of the Underlying Certificate Balances of all of the Underlying
Agency Securities as of such date. As of the Closing Date, the Aggregate
Underlying Certificate Balance was $[_________], after giving effect to
distributions made thereon prior to the Closing Date.
Agreement: This Trust Agreement together with all amendments hereof and
supplements hereto.
Anticipated Termination Date: Any Distribution Date on which the
Certificate Administrator anticipates that the Trust Fund will be terminated
pursuant to Section 9.01.
Available Distribution Amount: As of any Distribution Date, the aggregate
amount on deposit in the Certificate Account as of such Distribution Date, net
of any portion thereof which represents amounts payable pursuant to clauses (ii)
and (iii) of Section 3.04.
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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 _________]
or the State of [_______] and such other state or states in which the
Certificate Account or any account relating to the Underlying Agency Securities
are required or authorized by law or executive order to be closed.
Certificate: Any Class [A-1], Class [A-2], Class [A-3], Class [S] or Class
R Certificate.
Certificate Account: The trust account or accounts, which shall at all
times be Eligible Accounts, created and maintained by the Trustee pursuant to
Section 3.03. Funds deposited in the Certificate Account shall be held in trust
for the Certificateholders for the uses and purposes set forth in Article III
hereof.
Certificate Administrator: [____________] or its successor in interest,
solely in its capacity as certificate administrator under this Agreement, or any
successor certificate administrator appointed as provided herein.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register, except that neither a Disqualified
Organization nor a Non-United States Person shall be a Holder of a Class R
Certificate for any purpose hereof. Solely for the purpose of giving any consent
or exercising any Voting Rights pursuant to this Agreement, any Certificate
registered in the name of the Company, the Certificate Administrator or any
Affiliate of either of them shall be deemed not to be Outstanding and the
Percentage Interest or Voting Rights evidenced thereby shall not be taken into
account in determining whether the requisite amount of Percentage Interests or
Voting Rights necessary to effect any such consent or direction has been
obtained.
Certificate Principal Balance: With respect to each Certificate (other
than the Class [S] Certificates), on any date of determination, an amount equal
to (i) the Initial Certificate Principal Balance of such Certificate as
specified on the face thereof plus (ii) in the case of the Class [A-3]
Certificates, all Accrued Certificate Interest added to the Certificate
Principal Balances thereof on each Distribution Date on or prior to the
Accretion Termination Date pursuant to Section 4.01(b), minus (iii) the
aggregate of all amounts previously distributed with respect to such Certificate
and applied to reduce the Certificate Principal Balance thereof pursuant to
Section 4.01. The Class [S] Certificates have no Certificate Principal Balance.
Certificate Registrar and Certificate Register: The registrar appointed
and the register maintained pursuant to Section 5.02.
Class: Collectively, all of the Certificates bearing the same designation.
Class [A-1] Certificate: Any one of the Class [A-1] Certificates, executed
by the Trustee and authenticated by the Certificate Registrar, substantially in
the form annexed hereto as Exhibit A-1 and evidencing an interest designated as
a "regular interest" in the REMIC for purposes of the REMIC Provisions.
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Class [A-2] Certificate: Any one of the Class [A-2] Certificates, executed
by the Trustee and authenticated by the Certificate Registrar, substantially in
the form annexed hereto as Exhibit A-1 and evidencing an interest designated as
a "regular interest" in the REMIC for purposes of the REMIC Provisions.
Class [A-3] Certificate: Any one of the Class [A-3] Certificates, executed
by the Trustee and authenticated by the Certificate Registrar, substantially in
the form annexed hereto as Exhibit A-1 and evidencing an interest designated as
a "regular interest" in the REMIC for purposes of the REMIC Provisions.
Class R Certificate: Any one of the Class R Certificates, executed by the
Trustee and authenticated by the Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-2 and evidencing an interest designated as a
"residual interest" in the REMIC for purposes of the REMIC Provisions.
Class [S] Certificate: Any one of the Class [S] Certificates, executed by
the Trustee and authenticated by the Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-1 and evidencing an interest designated as a
"regular interest" in the REMIC for purposes of the REMIC Provisions.
Closing Date: [_______________________, 200 ].
Code: The Internal Revenue Code of 1986.
Commission: The Securities and Exchange Commission.
Corporate Trust Office: The principal corporate trust office of the
Trustee in the State of New York 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 Agreement is located at [_________].
Disqualified Organization: Any of the following: (i) 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), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) 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 on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) 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 Trust Fund or any Person having an Ownership Interest in
any Class of Certificates, other than such Person, to incur a liability for any
federal 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.
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Distribution Date: The third Business Day following each Underlying
Security Distribution Date, commencing with the Distribution Date on
[__________, 200 ].
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
the Rating Agency in its highest rating available, (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 such deposits not so insured
shall, to the extent acceptable to the Rating Agency, as evidenced in writing,
be maintained such that (as evidenced by an Opinion of Counsel delivered to the
Trustee and the Rating Agency) the registered Holders of Certificates have a
claim with respect to the funds in such account or a perfected first security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution with which such account is
maintained, (iii) a trust account or accounts maintained in the corporate trust
department of [___________], or (iv) an account or accounts of a depository
institution acceptable to the Rating Agency (as evidenced in writing by the
Rating Agency that use of any such account as the Certificate Account will not
reduce the rating assigned to the Certificates by such Rating Agency below the
lower of the then-current rating or the rating assigned to such Certificates as
of the Closing Date by such Rating Agency).
ERISA: The Employment Retirement Income Security Act of 1974, as amended.
Event of Default: As defined in Section 7.01.
Exchange Act: The Securities and Exchange Act of 1934, as amended.
[GNMA Issuer: Any one of the mortgage banking companies or other financial
concerns approved by GNMA that has issued and is servicing an Underlying Agency
Security.]
Independent: When used with respect to any specified Person, such a Person
who (i) is in fact independent of the Company, the Certificate Administrator and
the Trustee, or any Affiliate thereof, (ii) does not have any direct financial
interest in the Company, the Certificate Administrator and the Trustee, or any
Affiliate thereof, and (iii) is not connected with the Company, the Certificate
Administrator and the Trustee as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions.
Initial Certificate Principal Balance: With respect to each Certificate
(other than a Class [S] Certificate) the initial Certificate Principal Balance
of such Certificate as specified on the face thereof as of the Closing Date.
Maturity Date: The latest possible maturity date, solely for purposes of
Section 1.860G-1(a)(4)(iii) of the Treasury regulations, by which the
Certificate Principal Balance of each Class of Certificates representing a
regular interest in the REMIC would be reduced to zero, which shall be the
Distribution Date immediately following the latest stated maturity date of any
of the Underlying Agency Securities.
Mortgage Loans: With respect to any Underlying Agency Security, the
mortgage loans in which such Underlying Agency Security evidence a beneficial
ownership interest.
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Non-United States Person: Any Person other than a United States Person.
Notice of Final Distribution: With respect to any Underlying Agency
Security, the notice to be provided pursuant to the Trustee as holder of such
Underlying Agency Security to the effect that final distribution on such
Underlying Agency Security shall be made only upon presentation and surrender
thereof.
Notice of Termination: Any of the notices given to the Trustee by the
Certificate Administrator pursuant to Section 9.01(b).
Notional Amount: As of any Distribution Date, with respect to the Class
[S] Certificates, the Aggregate Underlying Certificate Balance immediately prior
to the most recent Underlying Security Distribution Date.
Officer's Certificate: A certificate signed by the President, Chief
Financial Officer, Treasurer, any Vice President, Secretary or any other officer
authorized by the board of directors of the Company, the Certificate
Administrator or the Trustee, as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Company or the Certificate Administrator, which opinion is reasonably
acceptable to the Trustee; except that any opinion of counsel relating to (i)
the qualification of any account required to be maintained pursuant to this
Agreement as an Eligible Account or (ii) the qualification of the Trust Fund as
a REMIC or compliance with the REMIC Provisions, must be an opinion of
Independent counsel.
Outstanding: With respect to the Certificates, as of the date of
determination, all Certificates previously executed and delivered under this
Agreement except (i) Certificates previously canceled by the Trustee or
delivered to the Trustee for cancellation; and (ii) Certificates in exchange for
which or in lieu of which other Certificates have been executed and delivered
pursuant to this Agreement.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: With respect to each Class of Certificates, the
respective per annum rate set forth in the Preliminary Statement hereto.
Paying Agent: Any Paying Agent appointed by the Trustee.
Percentage Interest: With respect to a Certificate (other than a Class [S]
Certificate or a Class R Certificate), the undivided percentage ownership
interest in the related Class evidenced by such 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 of
the Certificates of the same Class. With respect to a Class [S] Certificate or
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 such Certificate.
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Permitted Investments: One or more of the following:
(i) obligations of, or guaranteed as to principal and interest by, the
United States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the United
States;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition
thereof, provided that the unsecured obligations of the party
agreeing to repurchase such obligations are at the time rated by the
Rating Agency in its highest short-term rating available;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an original
maturity of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more
than 365 days or a remaining maturity of more than 30 days)
denominated in United States dollars of any U.S. depository
institution or trust company incorporated under the laws of the
United States or any state thereof or of any domestic branch of a
foreign depository institution or trust company; provided that the
debt obligations of such depository institution or trust company
(or, if the only Rating Agency is Standard & Poor's in the case of
the principal depository institution in a depository institution
holding company, debt obligations of the depository institution
holding company) at the date of acquisition thereof have been rated
by the Rating Agency in its highest short-term rating available; and
provided further that if the only Rating Agency is Standard & Poor's
and if the depository or trust company is a principal subsidiary of
a bank holding company and the debt obligations of such subsidiary
are not separately rated, the applicable rating shall be that of the
bank holding company; and provided further that, if the original
maturity of such short-term obligations of a domestic branch of a
foreign depository institution or trust company shall exceed 30
days, the short-term rating of such institution shall be A-1+ if
Standard & Poor's is the Rating Agency;
(iv) commercial paper (having original maturities of not more than 365
days) of any corporation incorporated under the laws of the United
States or any state thereof which on the date of acquisition has
been rated by the Rating Agency in its highest short-term rating
available; provided that such commercial paper shall have a
remaining maturity of not more than 30 days;
(v) a money market fund or qualified investment fund rated by the Rating
Agency in its highest rating available; and
(vi) other obligations or securities that are acceptable to the Rating
Agency as a Permitted Investment hereunder and will not reduce the
rating assigned to the Certificates by such Rating Agency below the
lower of the then-current rating or the rating assigned to the
Certificates as of the Closing Date by such Rating Agency, as
evidenced in writing; provided, however, that no instrument shall be
a Permitted Investment if it represents, either (1) the right to
receive only interest payments with respect to the underlying debt
instrument or (2) the right to receive both principal and interest
payments derived from obligations underlying such instrument and the
principal
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payments with respect to such instrument provide a yield to maturity
greater than 120% of the yield to maturity at par of such underlying
obligations. References herein to the highest rating available on
unsecured long-term debt shall mean Aaa in the case of Xxxxx'x
Investors Service, Inc., AAA in the case of Standard & Poor's and
Fitch Investors Service, Inc. and in the case of any other Rating
Agency shall mean such ratings without any plus or minus, and
references herein to the highest rating available on unsecured
commercial paper and short-term debt obligations shall mean P-1 in
the case of Xxxxx'x Investors Service, Inc., A-1 in the case of
Standard & Poor's and either A-1 by Standard & Poor's, P-1 by
Xxxxx'x Investors Service, Inc. or F-1 by Fitch Investors Service,
Inc. in the case of Fitch Investors Service, Inc.
Permitted Transferee: Any Transferee of a Class R Certificate, other than
a Disqualified Organization or a Non-United States Person.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Prepayment Assumption: A prepayment assumption of [ ]% of the standard
prepayment assumption used for determining the accrual of original issue
discount and market discount on the Certificates for federal income tax
purposes. The standard prepayment assumption assumes a constant rate of
prepayment of mortgage loans of [ ]% per annum of the outstanding principal
balance of such mortgage loans in the first month of life of the mortgage loans,
increasing by an additional [ ]% per annum in each succeeding month until the
thirtieth month, and a constant [ ]% per annum rate of prepayment thereafter for
the life of the mortgage loans.
Principal Distribution Amount: With respect to any Distribution Date, the
sum of (i) the aggregate of the Underlying Certificate Principal Distribution
Amount for the immediately preceding Underlying Security Distribution Date, plus
any amounts received as described in Section 3.03(a)(ii) since the preceding
Distribution Date to the extent allocated to principal of one or more Underlying
Agency Securities and (ii) the Accretion Amount.
Rating Agencies: [______________________] and [______________________]. If
an agency or a successor is no longer in existence, "Rating Agency" shall
include such statistical credit rating agency, or other comparable Person,
designated by the Company, notice of which designation shall be given to the
Trustee and the Certificate Administrator.
Record Date: With respect to any Distribution Date, other than the first
Distribution Date, the last Business Day of the month preceding the month in
which the Underlying Security Distribution Date on the Underlying Agency
Securities occurs and with respect to the first Distribution Date, the Closing
Date.
Reference Date: [___________ 1, 200_].
Regular Certificates: Any of the Certificates other than the Class R
Certificates.
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Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to
REMICs, 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.
Residual Certificate: Any one of the Class R Certificates.
Responsible Officer: When used with respect to the Trustee, any officer of
the Trustee employed in its corporate trust department, including any Senior
Vice President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer or Assistant Trust
Officer, or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers to whom, with
respect to a particular matter arising under this Agreement, such matter is
referred.
Securitization Transaction: Any transaction involving a sale or other
transfer of mortgage loans or securities backed by mortgage loans directly or
indirectly to an issuing in connection with an issuance of publicly offered or
privately placed, rated or unrated mortgage-backed securities.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicing Fee: With respect to any Distribution Date, the fee payable
monthly to the Certificate Administrator in respect of its compensation
hereunder that accrues at an annual rate equal to [____]% on the Aggregate
Underlying Certificate Balance as in effect immediately prior to the preceding
Underlying Security Distribution Date.
Servicing Officer: Any officer of the Certificate Administrator involved
in, or responsible for, the administration and servicing of the Trust Fund whose
name and specimen signature appear on a list of servicing officers furnished to
the Trustee by the Certificate Administrator, as such list may from time to time
be amended.
Standard & Poor's: Standard & Poor's Ratings Group 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
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Allocation, or any successor forms, to be filed on behalf of the Trust Fund due
to its classification as a REMIC 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 on which the Trust Fund is
terminated pursuant to Section 9.01.
Trust Fund: The corpus of the trust created by and to be administered
under this Agreement consisting of: (i) the Underlying Agency Securities, (ii)
all distributions thereon payable after the Closing Date and (iii) the
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.
Trustee: [_____________________], a [national bank] [[state bank] [trust
company] [organized under the laws of [______]] or its successor in interest, or
any successor trustee appointed as herein provided.
Trustee Information: As specified in Section 12.05(a)(i)(A).
Underlying Agency Security: Any of the [GNMA] [I] [II] Certificates
transferred to the Trustee by the Company pursuant to Section 2.01 to be held as
a part of the Trust Fund, as more fully described in the Preliminary Statement
hereto.
Underlying Agency Securityholder: The registered holder of any Underlying
Agency Security which, following the execution and delivery of this Agreement by
the parties hereto, shall be the Trustee for the benefit of the
Certificateholders.
Underlying Certificate Balance: With respect to any Underlying Agency
Security, as of any Underlying Security Distribution Date (following all
distributions to be made with respect to the Underlying Agency Security on such
Underlying Security Distribution Date), and as of any date of determination
thereafter until the next succeeding Underlying Security Distribution Date, the
principal balance of such Underlying Agency Security as set forth in, or
calculated in accordance with the terms of such Underlying Agency Security on
the basis of, the Underlying Security Distribution Date Statement sent to the
Trustee as Underlying Agency Securityholder relating to such Underlying Security
Distribution Date.
Underlying Certificate Principal Distribution Amount: With respect to any
Distribution Date, the aggregate amount actually distributed on the Underlying
Agency Securities on the immediately preceding Underlying Security Distribution
Date and identified as applied to reduce the related Underlying Certificate
Balance in the respective Underlying Security Distribution Date Statement.
Underlying Certificate Rate: With respect to any Underlying Agency
Security and any Underlying Security Distribution Date, the rate per annum at
which interest payable with respect to such Underlying Agency Security on such
Underlying Security Distribution Date accrued.
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Underlying Security Distribution Date: With respect to any Underlying
Agency Security, the "Distribution Date", as such term is defined on such
Underlying Agency Security.
Underlying Security Distribution Date Statement: With respect to any
Underlying Agency Security and any Underlying Security Distribution Date, the
monthly remittance report forwarded to the holder thereof with respect to such
Underlying Security Distribution Date pursuant to such Underlying Agency
Security.
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. The
term "United States" shall have the meaning set forth in Section 7701 of the
Code or successor provisions.
Voting Rights: The portion of the voting rights of all Certificates which
is allocated to any Certificate. For so long as the related Classes of
Certificates remain outstanding, [ ]% of all of the Voting Rights shall be
allocated among all Holders of the Class [A-1] Certificates, Class [A-2]
Certificates and Class [A-3] Certificates in proportion to their
then-outstanding Certificate Principal Balances; and [ ]% and [ ]% of the Voting
Rights shall be allocated among the Class [S] and Class R Certificates,
respectively, in proportion to the Percentage Interests evidenced by their
respective Certificates.
ARTICLE II
CONVEYANCE OF THE UNDERLYING
MORTGAGE SECURITIES; ORIGINAL ISSUANCE OF THE CERTIFICATES
Section 2.01. Conveyance of the Underlying Agency Securities.
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 Agency
Securities and all other assets constituting the Trust Fund. Such assignment
includes, without limitation, all amounts payable to and all rights of the
Underlying Agency Securityholders after the Closing Date.
In connection with such transfer and assignment, the Company does hereby
deliver to, and deposit with, the Trustee each of the Underlying Agency
Securities, together with the following documents or instruments relating to
each Underlying Agency Security:
(i) a duly issued and authenticated certificate for each Underlying
Agency Security, each evidencing the entire interest in such [series and
class] and registered in the name of "[Name of Trustee], as trustee under
the Trust Agreement relating to Residential Asset Securities Corporation,
Series [200_-__]"; and
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(ii) copies of the most recent Underlying Security Distribution Date
Statements, if any, delivered to the related Underlying Agency
Securityholder with respect to such Underlying Agency Security.
The transfer of the Underlying Agency Securities and all other assets
constituting the Trust Fund is absolute and is intended by the parties hereto as
a sale by the Company to the Trustee of the Underlying Agency Securities for the
benefit of the Certificateholders. Except as provided in Sections 3.02(b) and
9.01 hereof, the Trustee shall not assign, sell, dispose of or transfer any
interest in the Underlying Agency Securities or any other asset constituting the
Trust Fund or permit the Underlying Agency Securities or any other asset
constituting the Trust Fund to be subjected to any lien, claim or encumbrance
arising by, through or under the Trustee or any Person claiming by, through or
under the Trustee.
Section 2.02. Acceptance by Trustee.
The Trustee hereby acknowledges receipt of the documents referred to in
Section 2.01(i) and (ii) above and declares that it holds and will hold the
Underlying Agency Securities and such other documents and instruments delivered
to it with respect to the Underlying Agency Securities in trust for the use and
benefit of all present and future Certificateholders. Upon delivery of any
document or instrument relating to a Underlying Agency Security by the Company
or the Certificate Administrator, the Trustee shall acknowledge receipt of such
documents.
Section 2.03. Execution and Authentication of Certificates.
Concurrently with the transfer and delivery of the Underlying Agency
Securities and all related documents and instruments, the Trustee has executed,
authenticated and delivered, to or upon the order of the Company, the
Certificates duly executed and authenticated by the Trustee in authorized
Percentage Interests, registered in such names as the Company has requested.
ARTICLE III
ADMINISTRATION OF THE UNDERLYING AGENCY SECURITIES;
REPORTS TO CERTIFICATEHOLDERS
Section 3.01. Administration of the Trust Fund and the Underlying Agency
Securities.
(a) If at any time the Trustee, as Underlying Agency Securityholder, is
requested in such capacity to take any action or to give any consent, approval
or waiver, or if an Event of Default as defined under the terms of the
Underlying Agency Security occurs, the Trustee, in its capacity as Underlying
Agency Securityholder, may take such action in connection with the enforcement
of any rights and remedies available to it in such capacity with respect thereto
and only in accordance with the written directions of Holders of Certificates
evidencing at least 51% of the Voting Rights. The Trustee shall promptly notify
all of the Certificateholders of any such request.
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(b) The holders of the Class R Certificates shall pay in proportion to
their ownership interests in such Class R Certificates any taxes imposed on the
Trust Fund resulting from the Certificate Administrator's exercise of any option
to repurchase any of the Underlying Agency Securities in accordance with the
Assignment and Assumption Agreement.
Section 3.02. Collection of Monies.
(a) In connection with its receipt of any distribution on a Underlying
Agency Security on any Underlying Security Distribution Date, the Trustee shall
review the Underlying Security Distribution Date Statement and shall confirm
that the information contained therein is arithmetically correct. If (i) the
Trustee shall not have received a distribution on any Underlying Agency Security
by the close of business on the date on which such distribution was to be
received by the Trustee, the Trustee shall notify the Certificate Administrator
if such distribution shall not have been received by the Trustee one Business
Day following such notice or (ii) the Trustee shall gain actual knowledge of any
event of default under and as defined in any Underlying Agency Security, the
Trustee shall promptly notify the Certificate Administrator and the
Certificateholders and such parties shall proceed in accordance with the terms
and conditions of Section 3.01(a).
(b) Except as otherwise provided in Section 9.01, upon its receipt of a
Notice of Final Distribution, the Trustee shall present and surrender the
applicable Underlying Agency Security to which such notice applies for final
payment thereon in accordance with the terms and conditions of such Underlying
Agency Security and such Notice of Final Distribution. The Trustee shall
promptly deposit in the Certificate Account the final distribution received upon
presentation and surrender of such Underlying Agency Security.
Section 3.03. Establishment of Certificate Account; Deposits in
Certificate Account.
(a) The Trustee, for the benefit of the Certificateholders, shall
establish and maintain one or more accounts (collectively, the "Certificate
Account"), each of which shall be an Eligible Account, entitled "[Name of
Trustee], in trust for the registered holders of Residential Asset Securities
Corporation, Mortgage Asset-Backed Pass-Through Certificates, Series [200 - ]",
held in trust by the Trustee for the benefit of the Certificateholders. The
Trustee shall cause the following payments and collections in respect of the
Underlying Agency Securities to be deposited directly into the Certificate
Account:
(i) all distributions received on the Underlying Agency Securities
subsequent to the Closing Date;
(ii) any amounts received in connection with the sale of the
Underlying Agency Securities pursuant to Section 9.01 in accordance with a
plan of complete liquidation of the Trust Fund meeting the requirements of
Section 860F(a)(4)A of the Code [, or in connection with any optional
repurchase by the Certificate Administrator or any GNMA Issuer of any
Underlying Agency Security]; and
(iii) any other amounts specifically required to be deposited in the
Certificate Account hereunder.
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The foregoing requirements for deposit in the Certificate Account shall be
exclusive.
(b) Funds in the Certificate Account shall be invested by the Trustee in
Permitted Investments in accordance with the provisions set forth in Section
4.04. The Trustee shall give notice to the Certificate Administrator and the
Company of the location of each Certificate Account upon establishment thereof
and prior to any change thereof.
Section 3.04. Permitted Withdrawals From the Certificate Account.
The Trustee shall from time to time withdraw funds from the Certificate
Account for the following purposes:
(i) to make distributions in the amounts and in the manner provided
for in Section 4.01;
(ii) to pay to the Certificate Administrator on each Distribution
Date, as compensation for its services hereunder, the Servicing Fee plus
any investment income on amounts in the Certificate Account;
(iii) to reimburse the Company or the Certificate Administrator for
expenses incurred by and reimbursable to the Company or the Certificate
Administrator pursuant to Section 6.03, Sections 10.01(c) and (g) or as
otherwise permitted under this Agreement; and
(iv) to clear and terminate the Certificate Account upon the
termination of this Agreement.
On each Distribution Date, the Trustee shall withdraw all funds from the
Certificate Account and shall use such funds withdrawn from the Certificate
Account only for the purposes described in this Section 3.04 and in Section
4.01.
Section 3.05. Annual Statement as to Compliance.
The Certificate Administrator will deliver to the Company and the Trustee
on or before the earlier of (a) March 31 of each year, or (b) with respect to
any calendar year during which the Company's annual report on Form 10-K is
required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission, the date on which the annual report on Form 10-K
is required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission, a servicer compliance certificate, signed by an
authorized officer of the Certificate Administrator, as described in Item 1123
of Regulation AB, to the effect that:
(i) A review of the Certificate Administrator's activities during the
reporting period and of its performance under this Agreement has been made under
such officer's supervision.
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(ii) To the best of such officer's knowledge, based on such review, the
Certificate Administrator has fulfilled all of its obligations under this
Agreement in all materials respects throughout the reporting period or, if there
has been a failure to fulfill any such obligation in any material respect,
specifying each such failure known to such officer and the nature and status
thereof.
The Certificate Administrator shall use commercially reasonable efforts to
obtain from all other parties participating in the servicing function any
additional certifications required under Item 1123 of Regulation AB to the
extent required to be included in a Report on Form 10-K; provided, however, that
a failure to obtain such certifications shall not be a breach of the Certificate
Administrator's duties hereunder if any such party fails to deliver such a
certification.
Section 3.06. Annual Independent Public Accountants' Servicing Report.
On or before the earlier of (a) March 31 of each year, or (b) with respect
to any calendar year during which the Company's annual report on Form 10-K is
required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission, the date on which the annual report is required
to be filed in accordance with the Exchange Act and the rules and regulations of
the Commission, the Certificate Administrator at its expense shall cause a firm
of independent public accountants, which shall be members of the American
Institute of Certified Public Accountants, to furnish a report to the Company
and the Trustee the attestation required under Item 1122(b) of Regulation AB.
Section 3.07. Rights of the Company in Respect of the Certificate
Administrator.
The Certificate Administrator shall afford the Company, upon reasonable
notice, during normal business hours access to all records maintained by the
Certificate Administrator in respect of its rights and obligations hereunder and
access to officers of the Certificate Administrator responsible for such
obligations. Upon request, the Certificate Administrator shall furnish the
Company with its most recent financial statements and such other information as
the Certificate Administrator possesses regarding its business, affairs,
property and condition, financial or otherwise. The Certificate Administrator
shall also cooperate with all reasonable requests for information including, but
not limited to, notices and copies of files, regarding itself, the Underlying
Agency Securities or the Certificates from any Person or Persons identified by
the Company or the Certificate Administrator. The Company may, but is not
obligated to, enforce the obligations of the Certificate Administrator hereunder
and may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of the Certificate Administrator hereunder or exercise the
rights of the Certificate Administrator hereunder; provided that the Certificate
Administrator shall not be relieved of any of its obligations hereunder by
virtue of such performance by the Company or its designee. The Company shall not
have any responsibility or liability for any action or failure to act by the
Certificate Administrator and is not obligated to supervise the performance of
the Certificate Administrator under this Agreement or otherwise.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Distributions.
(a) On the Business Day prior to each Distribution Date, the Certificate
Administrator shall provide written notice to the Trustee indicating the amount
of Accrued Certificate Interest on each Class of the Certificates, and the
Principal Distribution Amount and the allocation thereof to each Class of
Certificates, for such Distribution Date. On each Distribution Date, the Trustee
shall withdraw from the Certificate Account all funds then on deposit, and the
Trustee or the Paying Agent appointed by the Trustee shall distribute to the
Holders of each respective Class of Certificates, from such Available
Distribution Amount, the following amounts, in the following order of priority,
in each case to the extent of the Available Distribution Amount:
(i) first, concurrently to the Class [A-1] Certificateholders, Class
[A-2] Certificateholders, Class [S] Certificateholders and Class R
Certificateholders on a pro rata basis based on the Accrued Certificate
Interest payable thereon, Accrued Certificate Interest on such Class of
Certificates as applicable for such Distribution Date, plus any Accrued
Certificate Interest thereon remaining unpaid for any previous
Distribution Date;
(ii) second, an amount equal to the Principal Distribution Amount
shall be distributed in reduction of the Certificate Principal Balances of
the Classes set forth below as follows:
(A) first, to the Class R Certificates, until the Certificate
Principal Balance thereof is reduced to zero;
(B) second, to the Class [A-1] Certificates, until the
Certificate Principal Balance thereof is reduced to zero; and
(C) third, to the Class [A-2] Certificates, until the
Certificate Principal Balance thereof is reduced to zero;
(iii) third, to the Class [A-3] Certificateholders, Accrued
Certificate Interest on such Classes of Certificates as applicable for
such Distribution Date, plus any Accrued Certificate Interest thereon
remaining unpaid from any previous Distribution Date (to the extent such
unpaid Accrued Certificate Interest does not constitute an Accretion
Amount);
(iv) fourth, an amount equal to the Principal Distribution Amount
remaining after the distribution described in clause (ii) above shall be
distributed in reduction of the Certificate Principal Balance of the Class
[A-3] Certificates, until the Certificate Principal Balance thereof is
reduced to zero;
provided, that if such Distribution Date is on or prior to the Accretion
Termination Date, no distribution shall be made pursuant to clause (iii) above
to the Class [A-3] Certificateholders to
16
the extent that Accrued Certificate Interest is not then payable in accordance
with Section 4.01(b); and provided further, that the amount available for
interest distributions on the Certificates on any Distribution Date as described
above shall not exceed the aggregate amount distributed on the Underlying Agency
Securities on the preceding Underlying Security Distribution Date in respect of
interest, reduced by the Servicing Fee; and provided further, that no such
unpaid Accrued Certificate Interest on the Certificates will be carried forward
to the extent that the corresponding amount of any shortfall in interest
distributions on any of the Underlying Agency Securities on the preceding
Underlying Security Distribution Date is not carried forward with respect to
such Underlying Agency Securities;
(b) On each Distribution Date prior to the Accretion Termination Date, an
amount equal to the amount of Accrued Certificate Interest on the Class [A-3]
Certificates for such Distribution Date that would otherwise be distributed on
such Certificates on such Distribution Date pursuant to Section 4.01(a)(iii)
shall be added to the Certificate Principal Balance thereof (such amount, the
"Accretion Amount"). On and after the Accretion Termination Date, the entire
amount of Accrued Certificate Interest on the Class [A-3] Certificates for such
Distribution Date shall be payable to such Certificates to the extent not
required to retire fully the Class [A-1], Class [A-2] and Class R Certificates
on the Accretion Termination Date. Any Accrued Certificate Interest on the Class
[A-3] Certificates which is required to be paid to the holders of the Class
[A-1], Class [A-2] or Class R Certificates on the Accretion Termination Date as
provided in the preceding sentence will be added to the Certificate Principal
Balance of the Class [A-3] Certificates in the manner described in the first
sentence of this Section 4.01(b).
(c) Payments on each Distribution Date will be made to the
Certificateholders of record on the related Record Date. Distributions to any
Certificateholder on any Distribution Date shall be made by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee or the Paying Agent in
writing at least five Business Days prior to the Record Date and if the
aggregate amount of distribution to be made to such Holder is at least $10,000,
or in such other manner as shall be agreed to by the Trustee and such
Certificateholder, or otherwise by check mailed by first class mail to the
address of such Certificateholder appearing in the Certificate Register. Final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such final
distribution.
(d) Except as otherwise provided in Section 9.01, whenever the Trustee, as
of five Business Days prior to any Record Date, expects that the final
distribution with respect to the Certificates will be made on the related
Distribution Date, the Trustee shall, no later than such related Record Date
mail to each Holder of the Certificates on such date a notice to the effect
that:
(i) the Trustee expects that the final distribution with respect to
the Certificates will be made on such Distribution Date but only upon
presentation and surrender of such Certificates at the office of the
Trustee therein specified; and
17
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Section 4.02. Statements to Certificateholders.
On each Distribution Date, the Certificate Administrator shall prepare and
the Trustee shall forward by mail a statement to each Certificateholder stating:
(i) the Available Distribution Amount for such Distribution Date and
the respective portions thereof constituting interest and principal
distributions on the Underlying Agency Securities;
(ii) with respect to such Distribution Date, the aggregate amount of
Accrued Certificate Interest and the amounts of interest and principal
distributed to the Certificateholders of each Class on such Distribution
Date pursuant to Section 4.01;
(iii) the respective amounts of any prepayments and any purchases of
Mortgage Loans (due to conversion or otherwise) included in such
distributions;
(iv) the Certificate Principal Balance or Notional Amount of the
Certificates of each Class after giving effect to distributions of
principal on such Distribution Date; and
(v) the Underlying Certificate Balance for each Underlying Agency
Security as of the Underlying Security Distribution Date immediately
preceding such Distribution Date, after giving effect to the distribution
of principal made thereon on such Underlying Security Distribution Date.
In the case of the information furnished pursuant to clause (ii) above,
the amounts shall also be expressed as a dollar amount per Certificate
evidencing a $1,000 denomination.
In addition, the Trustee promptly will furnish to Certificateholders and
the Certificate Administrator copies of any notices, statements, reports or
other communications including, without limitation, the Underlying Security
Distribution Date Statements (or, in lieu thereof, if the Certificate
Administrator so elects, a summary report of information relevant to the
Certificates, reported by the [GNMA Issuer] with regard to the Underlying Agency
Securities) for each Underlying Security Distribution Date, received by the
Trustee as the Underlying Agency Securityholder.
On or before March 31st of each calendar year, beginning with calendar
year [200 ], the Trustee shall prepare and deliver by first class mail to each
Person who at any time during the previous calendar year was a Certificateholder
of record a statement containing the information required to be contained in the
regular monthly report to Certificateholders, as set forth in clause (ii) above
aggregated for such calendar year or the applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code and regulations thereunder as from time to time are in force. The Trustee,
upon request, will furnish the Certificate
18
Administrator with all information the Trustee has as may reasonably be
requested in connection with the preparation by the Certificate Administrator of
all tax returns described in Section 10.01.
Section 4.03. Access to Certain Documentation and Information.
The Trustee shall provide to the Certificateholders access to 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 and during normal business hours at offices
designated by the Trustee.
Section 4.04. Permitted Investments.
The Certificate Administrator shall direct any institution maintaining the
Certificate Account to invest the funds in such Certificate Account in Permitted
Investments, which shall mature not later than the Business Day immediately
preceding the next Distribution Date (except that, (i) any investment in the
institution with which the Certificate Account is maintained may mature on such
Distribution Date and (ii) any other investment may mature on such Distribution
Date if the Trustee shall advance funds on such Distribution Date to the
Certificate Account in the amount payable on such investment on such
Distribution Date, pending receipt thereof to the extent necessary to make
distributions on the Certificates), and shall not be sold or disposed of prior
to their maturity. All such Permitted Investments shall be made in the name of
the Trustee, in trust for the Holders of the Certificates, or its nominee. All
income and gain received from any such investment shall be deposited in the
appropriate Certificate Account and may only be withdrawn and applied for the
purposes set forth in Section 3.04. The amount of any losses incurred in respect
of any such investments shall be deposited in the Certificate Account by the
Certificate Administrator out of its own funds immediately as realized.
Section 4.05. Exchange Act Reporting.
(a) The Certificate Administrator shall, on behalf of the Company and in
respect of the Trust Fund, sign and cause to be filed with the Commission any
periodic reports required to be filed under the provisions of the Exchange Act,
and the rules and regulations of the Commission thereunder including, without
limitation, reports on Form 10-K, Form 10-D and Form 8-K. 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. 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
19
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.
(b) Any Form 10-K filed with the Commission in connection with this
Section 4.03 shall include, with respect to the Certificates relating to such
10-K:
(i) A certification, signed by the senior officer in charge of the
servicing functions of the Certificate Administrator, in the form 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.
(ii) A report regarding its assessment of compliance during the
preceding calendar year with all applicable servicing criteria set forth
in relevant Commission regulations with respect to mortgage-backed
securities transactions taken as a whole involving the Certificate
Administrator that are backed by the same types of assets as those backing
the certificates, as well as similar reports on assessment of compliance
received from other parties participating in the servicing function as
required by relevant Commission regulations, as described in Item 1122(a)
of Regulation AB. The Certificate Administrator shall obtain from all
other parties participating in the servicing function any required
certifications.
(iii) With respect to each assessment report described immediately
above, a report by a registered public accounting firm that attests to,
and reports on, the assessment made by the asserting party, as set forth
in relevant Commission regulations, as described in Regulation 1122(b) of
Regulation AB and Section 3.06.
(iv) The servicer compliance certificate required to be delivered
pursuant Section 3.06.
(c) In connection with the Form 10-K Certification, the Trustee shall
provide the Certificate Administrator with a back-up certification substantially
in the form attached hereto as Exhibit C.
(d) This Section 4.05 may be amended in accordance with this Agreement
without the consent of the Certificateholders.
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.
The Certificates shall be substantially in the form set forth in Exhibits
A-1 and A-2 hereto. The Certificates (other than the Class [S] Certificates and
Class R Certificates) will be issuable in registered form, with minimum initial
Certificate Principal Balances as of the Closing Date of $[______] and integral
multiples of $[______] in excess thereof[;provided, however, that one Class
[______] Certificate will be issued in an initial denomination equal to
$[______], or the sum of $[______] and any integral multiple of $[______]]. The
Class [S] Certificates and Class R
20
Certificates will be issuable in registered form, in minimum denominations of
not less than a [ ]% Percentage Interest; [provided, however, that at all times
one Class R Certificate will be held by [the Certificate Administrator] as "tax
matters person" pursuant to Section 10.01(c) in a minimum denomination
representing a Percentage Interest of not less than 0.01%].
The Certificates shall be executed by manual or facsimile signature on
behalf of an authorized officer of the Trustee. Certificates bearing the manual
or facsimile signatures of individuals who were at any time the authorized
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 Certificates or did not hold such offices at
the date of such Certificates. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless there appears on such
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 Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Section 5.02. Registration of Transfer and Exchange of 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
5.02 a Certificate Register in which, subject to such reasonable regulations as
it may prescribe, the Trustee shall provide for the registration of Certificates
and of transfers and exchanges of Certificates as herein provided. The Trustee
is initially appointed Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided. The
Certificate Registrar, or the Trustee, shall provide the Certificate
Administrator with a certified list of Certificateholders as of each Record Date
prior to the Distribution Date. 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 Certificates of a like Class and aggregate
Percentage Interest. In addition, the Trustee shall notify the Company of every
proposed transfer or exchange of the Certificates.
(b) At the option of the Certificateholders, Certificates may be exchanged
for other Certificates of authorized denominations of a like Class and aggregate
Percentage Interest, upon surrender of the Certificates to be exchanged at any
such office or agency. Whenever any Certificates are so surrendered for exchange
the Trustee shall execute and the Certificate Registrar shall authenticate and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. Every 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) In the case of any Certificate presented for registration in the name
of an employee benefit plan or other plan subject to the fiduciary
responsibility provisions of ERISA, or Section 4975 of the Code (or comparable
provisions of any subsequent enactments), an investment manager, a named
fiduciary or a trustee of such plan, or any other Person who is
21
using "plan assets" of any such plan to effect such acquisition (including any
insurance company using funds in its general or separate accounts that may
constitute "plan assets"), unless otherwise directed by the Company, 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 Certificate is permissible under
applicable law, will not constitute or result in any non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, 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. Neither the Company, the Certificate
Administrator nor the Trustee will be required to obtain such Opinion of Counsel
on behalf of any prospective transferee.
(d) (i) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee or its designee under clause (iii)(A)
below to deliver payments to a Person other than such Person and to negotiate
the terms of any mandatory sale under clause (iii)(B) below and to execute all
instruments of transfer and to do all other things necessary in connection with
any such sale. The rights of each Person acquiring any Ownership Interest in a
Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the 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 B-1) from the proposed Transferee,
in form and substance satisfactory to the Trustee and the Certificate
Administrator, representing and warranting, among other things, that it is
a United States Person and 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
5.02(d) and agrees to be bound by them and (II) a certificate, attached
hereto as Exhibit B-2, from the Holder wishing to transfer the Class R
Certificate, in form and substance satisfactory to the Certificate
Administrator, representing and warranting, among other things, that no
purpose of the proposed Transfer is to impede the assessment or collection
of tax.
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(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 (1) 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 (2) not to transfer
its Ownership Interest unless it provides a certificate to the Trustee and
the Certificate Administrator in the form attached hereto as Exhibit B-2.
(E) Each Person holding or acquiring an Ownership Interest in a
Class R Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of Temporary Treasury
Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Class R Certificate, if it is, or is holding an
Ownership Interest in a Class R Certificate on behalf of, "pass-through
interest holder."
(F) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a "qualified institutional buyer" as defined
in Rule 144A under the Securities Act of 1933, as amended, or an Affiliate
of the Company or the Certificate Administrator.
(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 B-2 and all of such other documents as shall have been reasonably
required by the Certificate Administrator as a condition to such registration.
Transfers of the Class R Certificates to Non-United States Persons and
"Disqualified Organizations" (as defined in Section 860E(e)(5) of the Code) are
prohibited.
(iii) (A) If any Disqualified Organization shall become a holder of a
Class R Certificate, then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such transfer of such Class R
Certificate. If a Non-United States Person shall become a holder of a Class R
Certificate, then the last preceding United States Person shall be restored, to
the extent permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such transfer of such Class R
Certificate. If a transfer of a Class R Certificate is disregarded pursuant to
the provisions of Treasury Regulation Sections 1.860E-1 or 1.860G-3, then the
last preceding Permitted Transferee shall be restored, to the extent permitted
by law, to all rights and obligations as Holder thereof retroactive to the date
of registration of such transfer of such Class R Certificate. 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 5.02(d) or for
making any
23
payments due on such Certificate to the holder thereof or for taking any other
action with respect to such holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Class R
Certificate in violation of the restrictions in this Section 5.02(d) and to the
extent that the retroactive restoration of the rights of the Holder of such
Class R Certificate as described in clause (iii)(A) above shall be invalid,
illegal or unenforceable, then the Certificate Administrator shall have the
right, without notice to the Holder or any prior Holder of such Class R
Certificate, to sell such Class R Certificate to a purchaser selected by the
Certificate Administrator on such terms as the Certificate Administrator may
choose. Such purported Transferee shall promptly endorse and deliver each Class
R Certificate in accordance with the instructions of the Certificate
Administrator. Such purchaser may be the Company, the Certificate Administrator
itself or any affiliate of the Company or the Certificate Administrator. The
proceeds of such sale, net of the commissions (which may include commissions
payable to the Certificate Administrator or its affiliates), expenses and taxes
due, if any, will be remitted by the Certificate Administrator to such purported
Transferee. The terms and conditions of any sale under this clause (iii)(B)
shall be determined in the sole discretion of the Certificate Administrator, and
the Certificate Administrator shall not be liable to any Person having an
Ownership Interest in a Class R Certificate as a result of its exercise of such
discretion.
(iv) The Certificate Administrator, on behalf of the Trustee, shall make
available, upon written request from the Trustee, all information necessary to
compute any tax imposed (A) as a result of the transfer of an Ownership Interest
in a Class R Certificate to any Person who is not a Permitted Transferee,
including the information regarding "excess inclusions" of such Class R
Certificates required to be provided to the Internal Revenue Service and certain
Persons as described in Treasury Regulation Section 1.860D-1(b)(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 from such person.
(v) The provisions of this Section 5.02(d) set forth prior to this
subsection (v) may be modified, added or eliminated, provided that there shall
have been delivered to the Trustee:
(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
Certificates below the lower of the then-current rating or the rating
assigned to such Certificates on the Closing Date by such Rating Agency;
and
(B) a certificate of the Certificate Administrator stating that the
Certificate Administrator has received an Opinion of Counsel, in form and
substance satisfactory to the Certificate Administrator, to the effect
that such modification, addition or absence of such provisions will not
cause the Trust
24
Fund to cease to qualify as a REMIC and will not cause (1) 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 (2) a
Certificateholder or another Person to be subject to a REMIC-related tax
caused by the transfer of a Class R Certificate to a Person that is not a
Permitted Transferee.
(e) No service charge shall be made for any transfer or exchange of
Certificates, 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 Certificates.
(f) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated 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 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 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
Certificate, a new Certificate of like Class and Percentage Interest but bearing
a number not contemporaneously outstanding. Upon the issuance of any new
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
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 Certificate shall be found at any
time.
Section 5.04. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of transfer,
the Company, the Certificate Administrator, the Trustee, 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 any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, and neither the Company, the Certificate Administrator, the Trustee,
the Certificate Registrar nor any agent of the Company, the Certificate
Administrator, the Trustee or the Certificate Registrar shall be affected by
notice to the contrary except as provided in Section 5.02(d).
Section 5.05. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.01. In the event of
any such appointment, on or prior to each Distribution Date the Trustee shall
deposit or cause to be deposited with the Paying
25
Agent a sum sufficient to make the payments to Certificateholders in the amounts
and in the manner provided for in Section 4.01, such sum to be held in trust for
the benefit of Certificateholders.
The Trustee shall cause each Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent will hold all sums held by it for the payment to
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. Any sums so
held by such Paying Agent shall be held only in Eligible Accounts to the extent
such sums are not distributed to the Certificateholders on the date of receipt
by such Paying Agent.
ARTICLE VI
THE COMPANY AND THE CERTIFICATE ADMINISTRATOR
Section 6.01. Respective Liabilities of the Company and the Certificate
Administrator.
The Company and the Certificate Administrator shall be liable in
accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Company and the Certificate
Administrator herein.
Section 6.02. Merger, Consolidation or Conversion of the Company or the
Certificate Administrator.
Subject to the following paragraph, the Company and the Certificate
Administrator will each keep in full effect its existence, rights and franchises
as a corporation or association under the laws of the jurisdiction of its
incorporation, and each will 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 and the Certificates and to perform its
respective duties under this Agreement.
The Company or the Certificate Administrator may be merged or consolidated
with or into any Person, or transfer all or substantially all of its assets to
any Person, in which case any Person resulting from any merger or consolidation
to which the Company or the Certificate Administrator shall be a party, or any
Person succeeding to the business of the Company or the Certificate
Administrator, shall be the successor of the Company or the Certificate
Administrator, as the case may be, hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, that no Event of Default shall
result therefrom and such successor shall meet the qualifications set forth in
Section 7.02.
Section 6.03. Limitation on Liability of the Company, the Certificate
Administrator and Others.
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
26
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 against any specific liability
imposed on the Certificate Administrator pursuant to any Section hereof, or
against 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 or 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 which, prima facie, is 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 and held harmless
by the Trust Fund against any loss, liability or expense incurred in connection
with any legal action relating to this Agreement or the Certificates, other than
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations or duties hereunder. Neither the Company nor the
Certificate Administrator shall be under any obligation to appear in, prosecute
or defend any legal action unless such action is related to its respective
duties under this Agreement and which in its opinion does not involve it in any
expense or liability; provided, however, that the Company may in its discretion
undertake any such action which it may deem necessary or desirable with respect
to this Agreement and the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. In such event, and provided that
such action has been consented to by the Holders of Certificates evidencing at
least 51% of the Voting Rights, the legal expenses and costs of such action and
any liability resulting therefrom shall be expenses, costs and liabilities of
the Trust Fund, and the Company shall be entitled to be reimbursed therefor from
the Certificate Account as provided in Section 3.04. In no event shall the
Certificate Administrator be liable (solely in its capacity as Certificate
Administrator) for any error arising out of any inaccurate information contained
in any Distribution Date Statement. This provision shall not limit the
Certificate Administrator's liability in any other capacity.
Section 6.04. Company and Certificate Administrator Not to Resign.
The Certificate Administrator shall not resign from the obligations and
duties hereby imposed on it, except upon determination that its duties hereunder
are no longer permissible under applicable law or are in material conflict by
reason of applicable law with any other activities carried on by it, the other
activities of the Certificate Administrator so causing such a conflict being of
a type and nature carried on by the Certificate Administrator at the date of
this Agreement. Any such determination permitting the resignation of the
Certificate Administrator shall be evidenced by an Opinion of Counsel to such
effect which shall be delivered in form and substance satisfactory to the
Trustee. No such resignation shall become effective until the Trustee or a
successor certificate administrator shall have assumed the Certificate
Administrator's responsibilities and obligations in accordance with Section 7.02
hereof.
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ARTICLE VII
DEFAULT
Section 7.01. Events of Default.
"Event of Default", wherever used herein, means any one of the following
events (whatever reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the Certificate Administrator shall fail to observe or perform
in any material respect any of the covenants or agreements on the part of
the Certificate Administrator contained in the Certificates or in this
Agreement and such failure shall continue unremedied for a period of 30
days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Certificate
Administrator by the Trustee or the Company, or to the Certificate
Administrator, the Company and the Trustee by the Holders of Certificates
evidencing Percentage Interests aggregating not less than 33%; or
(ii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
or appointing a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Certificate Administrator and such decree or
order shall have remained in force undischarged or unstayed for a period
of 60 days; or
(iii) the Certificate Administrator shall consent to the appointment
of a conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities, or similar proceedings of,
or relating to, the Certificate Administrator or of, or relating to, all
or substantially all of the property of the Certificate Administrator; or
(iv) the Certificate Administrator shall admit in writing its
inability to pay its debts generally as they become due, file a petition
to take advantage of, or commence a voluntary case under, any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its creditors, or voluntarily suspend payment of its obligations.
If an Event of Default described in this Section shall occur, then, and in
each and every such case, so long as such Event of Default shall not have been
remedied, either the Company or the Trustee may, and at the direction of Holders
of Certificates evidencing at least 51% of the Voting Rights, the Trustee shall,
by notice in writing to the Certificate Administrator (and to the Company if
given by the Trustee or to the Trustee if given by the Company), terminate all
of the rights and obligations of the Certificate Administrator under this
Agreement and in and to the Underlying Agency Securities and the proceeds
thereof, other than its rights as
28
a Certificateholder hereunder; provided, however, that the Certificate
Administrator will be entitled to all compensation and any income on the
Certificate Account that accrued to the Certificate Administrator prior to such
termination. The Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Certificate Administrator, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Underlying Agency Securities and related documents, or
otherwise. The Certificate Administrator agrees to cooperate with the Trustee in
effecting the termination of the Certificate Administrator's responsibilities
and rights hereunder, including, without limitation, the transfer to the Trustee
or its designee for administration by it of all cash amounts which shall at the
time be credited to the Certificate Account or thereafter be received with
respect to the Underlying Agency Securities. 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 7.02. Trustee or Company to Act; Appointment of Successor.
On and after the time the Certificate Administrator receives a notice of
termination pursuant to Section 7.01, the Trustee or, upon notice to the
Company, and with the Company's consent (which shall not be unreasonably
withheld) a designee (which meets the standards set forth below) of the Trustee,
shall be the successor in all respects to the Certificate Administrator in its
capacity as Certificate Administrator under this Agreement and the transactions
set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the
Certificate Administrator (except for its obligations to deposit amounts in
respect of losses incurred prior to such notice of termination on the investment
of funds in the Certificate Account pursuant to Section 4.04 by the terms and
provisions hereof); provided, however, that any failure to perform such duties
or responsibilities caused by the preceding Certificate Administrator's failure
to provide information required by Section 4.01 shall not be considered a
default by the Trustee hereunder. As compensation therefor, the Trustee shall be
entitled to all funds relating to the Underlying Agency Securities which the
Certificate Administrator would have been entitled to charge to the Certificate
Account if the Certificate Administrator had continued to act hereunder and, in
addition, shall be entitled to the income from any Permitted Investments made
with amounts attributable to the Underlying Agency Securities held in the
Certificate Account. If the Trustee has become the successor to the Certificate
Administrator in accordance with Section 7.01, then notwithstanding the above,
the Trustee may, if it shall be unwilling to so act, or shall, if it is unable
to so act, appoint, or petition a court of competent jurisdiction to appoint,
any established housing and home finance institution, which is also a FNMA- or
FHLMC-approved mortgage servicing institution, having a net worth of not less
than $10,000,000 as the successor to the Certificate Administrator hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Certificate Administrator hereunder. Pending appointment of a successor
to the Certificate Administrator hereunder, the Trustee shall become successor
to the Certificate Administrator and shall act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the Trustee may
make such arrangements for the compensation of such successor out of payments on
Underlying Agency Securities as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
initial Certificate Administrator hereunder. The Company, the Trustee, the
Certificate
29
Administrator, the Custodian and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession.
Section 7.03. Notification to Certificateholders.
(a) Upon any such termination or appointment of a successor to the
Certificate Administrator, the Trustee shall give prompt written notice thereof
to Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Holders of Certificates notice of each
such Event of Default hereunder known to the Trustee, unless such Event of
Default shall have been cured or waived.
Section 7.04. Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights of Certificates
may waive such default or Event of Default; provided, however, that no waiver
pursuant to this Section 7.04 shall affect the Holders of Certificates in the
manner set forth in Section 10.01. Upon any such waiver of a default or Event of
Default, such default or Event of Default by the Holders representing the
requisite percentage of Voting Rights of Certificates affected by such default
or Event of Default, shall cease to exist and shall be deemed to have been
remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon except to the extent expressly so waived.
ARTICLE VIII
THE TRUSTEE
Section 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent investor would exercise or use under the circumstances in the
conduct of such investor's own affairs.
(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 the terms of the Underlying
Agency Securities. The Trustee shall notify the Certificateholders of any such
documents which do not materially conform to the requirements of this Agreement
in the event that the Trustee, after so requesting, does not receive
satisfactorily corrected documents or a satisfactory explanation regarding any
such nonconformities.
30
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 Sections 3.01, 4.02 and 9.01. 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 the Trust Fund as a REMIC, under the REMIC
Provisions and 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, notwithstanding the foregoing. Also, the Trustee
shall have no additional obligations with respect to maintenance of the Trust
Fund as a REMIC other than as specifically set forth herein.
(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) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred,
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 or the Certificate Administrator to the Trustee
and which on their face, do not contradict the requirements of this
Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Certificateholders of any Class
holding Certificates 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
or an Event of Default under clauses (i), (ii), (iii) or (iv) of Section
7.01 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 Certificate Administrator, the
Company, or any Certificateholder; and
31
(v) Except to the extent provided in Section 7.02, 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. In the event the Trustee has
been authorized by Certificateholders evidencing the percentage of
Percentage Interests required to authorize such action pursuant to the
terms of this Agreement and the indemnification provided to the Trustee by
such Certificateholders is not reasonably satisfactory to the Trustee, the
Trustee may require the approval of all Certificateholders and/or
additional indemnification prior to taking any such action. In addition,
the Trustee may seek indemnification from the Certificate Administrator or
the Company prior to taking any such action provided that neither the
Certificate Administrator nor the Company shall be required to provide
such indemnification.
(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, (i) "prohibited transaction"
penalty taxes as defined in Section 860F of the Code, if, when and as the same
shall be due and payable, and (ii) any tax on contributions to the Trust Fund
after the Closing Date imposed by Section 860G(d) 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 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) the Trustee 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 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 Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default (which has
not been cured), to exercise such of the rights and powers vested in
it by this Agreement, and to use the same degree of care and
32
skill in their exercise as a prudent investor would exercise or use
under the circumstances in the conduct of such investor's own
affairs;
(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) prior to the occurrence of an Event of Default hereunder
and after the curing of all Events of Default which may have
occurred, 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 Certificates evidencing 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 Certificate Administrator, if an Event of Default shall have
occurred and is continuing, and otherwise by the Certificateholder
requesting the investigation;
(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; and
(vii) to the extent authorized or required from time to time
under the Code and the regulations promulgated thereunder, each
Holder of a Class R Certificate hereby irrevocably appoints and
authorizes the Trustee to be its attorney-in-fact for purposes of
signing any Tax Returns required to be filed on behalf of the Trust
Fund. The Trustee shall sign on behalf of the Trust Fund and deliver
to the Certificate Administrator in a timely manner any Tax Returns
prepared by or on behalf of the Certificate Administrator that the
Trustee is required to sign as determined by the Certificate
Administrator pursuant to applicable federal, state or local tax
laws, provided that the Certificate Administrator shall indemnify
the Trustee for signing any such Tax Returns that contain errors or
omissions.
(b) Following the issuance of the 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 to the effect
that such contribution will not (i) cause the REMIC to fail to qualify as
a REMIC at any time that any Certificates are outstanding or (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).
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Section 8.03. Trustee Not Liable for Certificates or Underlying Agency
Securities.
The recitals contained herein and in the Certificates (other than the
execution of the Certificates and relating to the acceptance and receipt of the
Underlying Agency Securities) 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 Certificates (except
that the Certificates shall be duly and validly executed and authenticated by it
as Certificate Registrar) or of the Underlying Agency Securities or 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 Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Company or
the Certificate Administrator in respect of the Underlying Agency Securities
deposited in or withdrawn from the Certificate Account by the Company or the
Certificate Administrator.
Section 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates with the same rights it would have if it were not
Trustee.
Section 8.05. 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 8.11) 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 its 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:
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(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 8.05(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 8.05(b) shall not pertain to any loss,
liability or expense of the Trustee, including the costs and expenses of
defending itself against any claim, incurred in connection with any actions
taken by the Trustee at the direction of Certificateholders pursuant to the
terms of this Agreement.
(c) Notwithstanding Section 8.05(b) above, the Certificate Administrator
shall not indemnify the Trustee for any loss, liability or expense, including
the costs and expenses of defending itself against any claim, incurred in
connection with the Trustee's establishment, maintenance or management of the
Certificate Account; provided, however, that the foregoing shall not limit the
Certificate Administrator's obligation to made deposits into the Certificate
Account to cover losses incurred in respect of Permitted Investments pursuant to
Section 4.04.
Section 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a 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 8.07.
35
Section 8.07. 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 each 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, then
the resigning Trustee 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 8.06 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.
(c) The Holders of Certificates evidencing 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 8.08.
Section 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 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, 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 all
Underlying Agency Securities 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 8.06.
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(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 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 8.09. 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 8.06, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. The Trustee shall mail notice
of any such merger or consolidation to the Certificateholders at their address
as shown in the Certificate Register.
Section 8.10. 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 8.10, 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, or in case an
Event of Default shall have occurred and be continuing, 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 8.06 hereunder and no notice to Holders of Certificates of
the appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 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 (whether as Trustee hereunder or
as successor to the Certificate Administrator hereunder), 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.
37
(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 VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11. Appointment of Office or Agency.
The Trustee will maintain an office or agency in the City of New York
where Certificates may be surrendered for registration of transfer or exchange.
The Trustee initially designates [_______________________], which is located at
[_________________________] for the purpose of keeping the Certificate Register.
The Trustee will maintain an office at the address stated in Section 11.05(c)
hereof where notices and demands to or upon the Trustee in respect of this
Agreement may be served.
ARTICLE IX
TERMINATION
Section 9.01. Termination.
(a) Subject to Section 9.02, the respective obligations and
responsibilities of the Certificate Administrator, the Company and the Trustee
created hereby with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as
hereinafter set forth) shall terminate immediately upon payment to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them hereunder following the earlier to occur of (i) the
repurchase by the Certificate Administrator or the Company of all of the
Underlying Agency Securities and other assets remaining in the Trust Fund at a
price equal to 100% of the then outstanding Certificate Principal Balance of
each of the Class [A-1], Class [A-2], Class [A-3] and Class R Certificates on
the day of repurchase together with accrued interest thereon on such then
outstanding Certificate Principal Balance and on the Class [S] Certificates at
the then applicable Notional Amount at the related Pass-Through Rate to the
first day of the month in which the proceeds of such repurchase are to be
distributed, and (ii) the last action required to be taken by the Trustee on the
Termination Date pursuant to this Article IX following receipt of the final
distribution to be made on the last remaining Underlying Agency Security in the
Trust Fund upon presentation and
38
surrender of such Underlying Agency Security in accordance with the terms and
conditions thereof; provided, however, that in no event shall the trust created
hereby continue beyond the expiration of twenty-one years from the death of the
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the United Kingdom, living on the date hereof.
The right of the Certificate Administrator or the Company to repurchase
all of the Underlying Agency Securities pursuant to (i) above shall be
conditioned upon the aggregate of the Underlying Certificate Balances of such
Underlying Agency Securities at the time of any such repurchase aggregating an
amount equal to or less than [ ]% of the aggregate of the Underlying Certificate
Balances of the Underlying Agency Securities at the Closing Date.
(b) The Certificate Administrator shall give the Trustee and the Rating
Agency notice (a "Notice of Termination") as soon as practicable of the
Distribution Date on which the Certificate Administrator anticipates that the
final distribution will be made to the Certificateholders. Notice of any
termination of the Trust Fund pursuant to this Section 9.01 shall be mailed by
the Trustee to affected Certificateholders at their addresses shown in the
Certificate Register as soon as practicable after the Trustee shall have
received a Notice of Termination but in any event, not more than thirty days,
and not less than ten days, prior to the Anticipated Termination Date. The
notice mailed by the Trustee to affected Certificateholders shall:
(A) specify the Anticipated Termination Date on which the final
distribution is anticipated to be made to Holders of the Certificates;
(B) specify the amount of any such final distribution, if known; and
(C) state that the final distribution to Certificateholders will be
made only upon presentation and surrender of Certificates at the office of
the Trustee therein specified.
If the Trust Fund is not terminated on the Anticipated Termination Date for any
reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(c) Upon presentation and surrender of the 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 4.01(a). Any funds not distributed on the Termination Date
because of the failure of any Certificateholders to tender their Certificates
shall be set aside and held in trust for the account of the appropriate
non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If
any Certificates as to which notice of the Termination Date has been given
pursuant to this Section 9.01 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 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 Certificate
shall not have been surrendered for cancellation, the Trustee shall so notify
the Certificate Administrator who shall upon receipt of such notice, directly or
39
through an agent, take reasonable steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Trustee shall pay to the Certificate Administrator all amounts distributable to
the Holders thereof and the Certificate Administrator 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 9.01.
Section 9.02. Additional Termination Requirements.
(a) The Trust Fund shall be terminated in accordance with the following
additional requirements, unless the Trustee and the Certificate Administrator
have received an Opinion of Counsel to the effect that the failure of the Trust
Fund to comply with the requirements of this Section 9.02 will not (i) result in
the imposition on the Trust Fund of taxes on "prohibited transactions", as
described in Section 860F of the Code, or (ii) cause the Trust Fund to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
(i) The Certificate Administrator shall establish a 90-day
liquidation period for the Trust Fund and specify the first day of such
period in a statement attached to the Trust Fund's final Tax Return
pursuant to Treasury regulations Section 1.860F-1. The Certificate
Administrator also shall satisfy all of the requirements of a qualified
liquidation for the Trust Fund under Section 860F of the Code and the
regulations thereunder;
(ii) The Certificate Administrator shall notify the Trustee at the
commencement of such 90-day liquidation period and, at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell or otherwise dispose of all of the remaining assets of the Trust Fund
in accordance with the terms hereof; and
(iii) After making the final payment on the Certificates, the
Certificate Administrator shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Class R Certificates all
cash remaining in the Certificate Account (other than cash retained to
meet claims), and the Trust Fund shall terminate at that time.
(b) Each Holder of a 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 and obtaining the signature of the
Trustee in accordance with the terms and conditions of this Agreement.
40
ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration.
(a) The Certificate Administrator shall make an election to treat the
Trust Fund as a REMIC under the Code and, if necessary, under applicable state
law. 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
Certificates are issued. For the purposes of the REMIC election in respect of
the Trust Fund, the Certificates (other than the Class R Certificates) shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interest" in the Trust Fund. The
Certificate Administrator and the Trustee shall not permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in the Trust Fund
other than the Trust Fund regular interests and the interests represented by the
Certificates, respectively.
(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 Certificate Administrator] shall hold a Class R Certificate
representing a 0.01% Percentage Interest of all Class R Certificates and shall
be designated as the tax matters person of the Trust Fund in the manner provided
under Treasury regulations section 1.860F-4(d) and temporary Treasury
regulations section 301.6231(a)(7)-1T.] [the Certificate Administrator] as tax
matters person, shall (i) act on behalf of the Trust Fund 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 Certificate Administrator] shall be entitled to
reimbursement therefor out of amounts attributable to the Mortgage Loans on
deposit in the Certificate Account as provided by Section 3.04 unless such legal
expenses and costs are incurred by reason of [the Certificate Administrator's]
willful misfeasance, bad faith or gross negligence. If [the Certificate
Administrator] is no longer the Certificate Administrator hereunder [the
Certificate Administrator] shall be paid reasonable compensation by any
successor Certificate Administrator hereto for so acting as "tax matters
person."]
(d) The Certificate Administrator shall prepare or cause to be prepared
all of the Tax Returns that it determines are required with respect to the Trust
Fund created hereunder and deliver such Tax Returns in a timely manner to the
Trustee and the Trustee shall sign and file such Tax Returns in a timely manner.
The expenses of preparing such returns shall be borne by the Certificate
Administrator without any right of reimbursement therefor. The Certificate
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.
41
(e) The Certificate 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 Trust Fund.
(f) The Certificate Administrator shall take such actions and shall cause
the Trust Fund created hereunder to take such actions as are reasonably within
the Certificate Administrator's control and the scope of its duties more
specifically set forth herein as shall be necessary to maintain the status
thereof as a REMIC under the REMIC Provisions (and the Trustee shall assist the
Certificate Administrator, to the extent reasonably requested by the Certificate
Administrator to do so). The Certificate 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 its control
and the scope of duties more specifically set forth herein, that, under the
REMIC Provisions, if taken or not taken, as the case may be, could (i) endanger
the status of the Trust Fund as a REMIC or (ii) result in the imposition of a
tax upon the Trust Fund (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) (either such
event, an "Adverse REMIC Event") unless the Certificate Administrator 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 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 or the Trustee) to the
effect that the contemplated action will not, with respect to the Trust Fund
created hereunder, endanger such status or, unless the Certificate Administrator
determines in its sole discretion to indemnify the Trust Fund against such tax,
result in the imposition of such a tax. The Trustee shall not take or fail to
take any action (whether or not authorized hereunder) as to which the
Certificate Administrator 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 Trust Fund or its assets, or causing the Trust Fund to take any action,
which is not expressly permitted under the terms of this Agreement, the Trustee
will consult with the Certificate Administrator or its designee, in writing,
with respect to whether such action could cause an Adverse REMIC Event to occur
with respect to the Trust Fund, and the Trustee shall not take any such action
or cause the Trust Fund to take any such action as to which the Certificate
Administrator has advised it in writing that an Adverse REMIC Event could occur.
The Certificate Administrator may consult with counsel to make such written
advice, and the cost of same shall be borne by the party seeking to take the
action not expressly permitted by this Agreement, but in no event at the expense
of the Certificate Administrator. At all times as may be required by the Code,
the Certificate Administrator will, to the extent within its control and the
scope of its duties more specifically set forth herein, maintain substantially
all of the assets of the Trust Fund as "qualified mortgages" as defined in
Section 860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
42
(g) In the event that any tax is imposed on "prohibited transactions" of
the Trust Fund created hereunder as defined in Section 860F(a)(2) of the Code,
on "net income from foreclosure property" of the Trust Fund as defined in
Section 860G(c) of the Code, on any contributions to the Trust Fund after the
Startup Day therefor pursuant to Section 860G(d) of the Code, or any other tax
is imposed by the Code or any applicable provisions of state or local tax laws,
such tax shall be charged (i) to the Certificate Administrator, if such tax
arises out of or results from a breach by the Certificate Administrator of any
of its obligations under this Agreement or the Certificate Administrator has in
its sole discretion determined to indemnify the Trust Fund against such tax;
(ii) to the Trustee, if such tax arises out of or results from a breach by the
Trustee of any of its obligations under this Agreement; or otherwise (iii)
against amounts on deposit in the Certificate Account as provided by Section
3.04 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 Trust Fund
on a calendar year and on an accrual basis or as otherwise may be required by
the REMIC Provisions.
(i) Following the Startup Day, neither the Certificate Administrator nor
the Trustee shall accept any contributions of assets to the Trust Fund unless
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 Trust Fund will not cause the
Trust Fund to fail to qualify as a REMIC at any time that any Certificates are
outstanding or subject the Trust Fund 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 enter into
any arrangement by which the Trust Fund will receive a fee or other compensation
for services nor permit either such REMIC to receive any income from assets
other than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the "latest possible maturity date" by which the Certificate
Principal Balance of each Class of Certificates representing a regular interest
in the Trust Fund would be reduced to zero is [_____________ ___, 20____] which
is the Distribution Date immediately following the latest scheduled maturity of
any Mortgage Loan.
(l) Within 30 days after the Closing Date, the Certificate 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 Trust Fund.
(m) Neither the Trustee nor the Certificate Administrator shall sell,
dispose of or substitute for any of the Mortgage Loans (except in connection
with (i) the default, imminent default or foreclosure of a Mortgage Loan,
including but not limited to, the acquisition or sale of
43
a Mortgaged Property acquired by deed in lieu of foreclosure, (ii) the
bankruptcy of the Trust Fund, (iii) the termination of the Trust Fund pursuant
to Article IX of this Agreement or (iv) a purchase of Mortgage Loans pursuant to
Article II or III of this Agreement) nor acquire any assets for the Trust Fund,
nor sell or dispose of any investments in the Custodial Account or the
Certificate Account for gain, nor accept any contributions to the Trust Fund
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 Trust Fund as a REMIC or (b) unless the Certificate Administrator
has determined in its sole discretion to indemnify the Trust Fund against such
tax, cause the Trust Fund to be subject to a tax on "prohibited transactions" or
"contributions" pursuant to the REMIC Provisions.
Section 10.02. Certificate Administrator and Trustee Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the Company 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 VIII or this Article X.
(b) The Certificate Administrator agrees to indemnify the Trust Fund, the
Company 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 or the Trustee, as a result of a breach of the Certificate
Administrator's covenants set forth in this Article X or in 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.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment.
(a) This Agreement may be amended from time to time by the Company,
the Certificate Administrator 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;
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of
the Trust Fund as a REMIC at all times that any 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
44
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
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
Certificates, as evidenced by a letter from the Rating Agency then
rating the Certificates to such effect;
(v) to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision hereof restricting transfer of the
Class R Certificates by virtue of their being the REMIC "residual
interest", provided that (A) such change shall not adversely affect
the then-current ratings of the 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-Permitted Transferee; and
(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
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 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 Certificates of such Class; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate,
(ii) reduce the aforesaid percentage of 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 Certificates of such Class then outstanding, or
(iii) adversely affect in any material respect the interests
of the Holders of Certificates of any Class in a manner other than
as described in clause (i) hereof without the consent of Holders of
Certificates of such Class evidencing, as to such Class, Percentage
Interests aggregating not less than 66%.
(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 (1)
such amendment or the exercise of any power granted to
45
the Certificate Administrator, the Company or the Trustee in accordance
with such amendment will not result in the imposition of a tax on the
Trust Fund or cause the Trust Fund to fail to qualify as a REMIC at any
time that any Certificate is outstanding and (2) such amendment, if made
pursuant to any provision of Section 11.01(a), is permitted under such
provision.
(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 11.01 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 11.02. 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 11.03. 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 Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision
of this Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Agreement, unless such Holder
previously shall have given to the Trustee a notice of a default by the Company,
the Certificate Administrator or the Trustee in the performance of any
obligation hereunder, and of the continuance thereof, as herein- before
provided, and unless also the Holders of Certificates of any Class evidencing at
least 33% of the Voting Rights of such Class, 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
46
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 11.04. Governing Law.
THIS AGREEMENT AND THE 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 11.05. 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, Asset
Securities Corporation, [_________________________], Attention: [_____], or such
other address as may hereafter be furnished to the Certificate Administrator and
the Trustee in writing by the Company, (b) in the case of the Certificate
Administrator, [___________________], Attention: [______________], or such other
address as may be hereafter furnished to the Company and the Trustee by the
Certificate Administrator in writing, (c) in the case of the Trustee,
[_______________], Attention: Residential Asset Securities Corporation, Series
[200_-___], with a copy to [____________________], Attention: Residential Asset
Securities Corporation, Series [200-___], or such other address as may hereafter
be furnished to the Company and the Certificate Administrator in writing by the
Trustee, and (d) in the case of [name of rating agency], [ ], or such other
address as may hereafter be furnished to the Company, the Trustee and the
Certificate Administrator in writing by [name of rating agency]. 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 and shall be conclusively presumed to have been duly given
when mailed.
Section 11.06. Notices to Rating Agency.
The Company, the Certificate Administrator or the Trustee, as applicable,
shall notify the 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), (c), (f) or (g) 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 clauses (d) and (e) below:
(a) a material change or amendment to this Agreement;
(b) the occurrence of an Event of Default;
(c) the termination or appointment of a successor Certificate
Administrator or Trustee or a change in the majority ownership of the Trustee;
(d) the statement required to be delivered to the Holders of the
Certificates pursuant to Section 4.02;
47
(e) the statements required to be delivered pursuant to Section 3.05;
(f) a change in the location of the Certificate Account;
(g) the occurrence of the Final Distribution Date; and
(h) the repurchase of any Underlying Agency Securities.
Section 11.07. 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 Certificates or the rights of the Holders thereof.
Section 11.08. 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 11.09. 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.
ARTICLE XII
COMPLIANCE WITH REGULATION AB
Section 12.01. Intent of the Parties; Reasonableness.
The Company, the Trustee and the Certificate Administrator acknowledge and
agree that the purpose of this Article XII is to facilitate compliance by the
Company with the provisions of Regulation AB and related rules and regulations
of the Commission. The Company shall not exercise its right to request delivery
of information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission under the
Securities Act and the Exchange Act. Each of the Certificate Administrator and
the Trustee acknowledges that interpretations of the requirements of Regulation
AB may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the mortgage-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
requests made by the Company in good faith for delivery of information under
these provisions on the basis of evolving interpretations of Regulation AB. Each
of the Certificate Administrator and the Trustee shall cooperate fully with the
Company to deliver to the Company (including any of its assignees or designees),
any and all statements, reports, certifications, records and any other
information necessary in the good faith determination of the
48
Company to permit the Company or such Company to comply with the provisions of
Regulation AB, together with such disclosures relating to the Certificate
Administrator, the Trustee and the Mortgage Loans, or the servicing of the
Mortgage Loans, reasonably believed by the Company to be necessary in order to
effect such compliance.
Section 12.02. Additional Representations and Warranties of the Trustee.
(a) The Trustee shall be deemed to represent to the Company as of the date
on which information is first provided to the Company under Section 12.03 that,
except as disclosed in writing to the Company prior to such date: (i) it is not
aware and has not received notice that any default, early amortization or other
performance triggering event has occurred as to any other Securitization
Transaction due to any act or failure to act of the Trustee; (ii) it has not
been terminated as trustee in a securitization of mortgage loans; (iii) there
are no aspects of its financial condition that could have a material adverse
effect on the performance by it of its trustee obligations under this Agreement
or any other Securitization Transaction; (iv) there are no material legal or
governmental proceedings pending (or known to be contemplated) against it; and
(v) there are no affiliations, relationships or transactions relating to the
Trustee with respect to the Company or any sponsor, issuing entity, servicer,
trustee, originator, significant obligor, enhancement or support provider or
other material transaction party (as such terms are used in Regulation AB)
relating to the Securitization Transaction contemplated by the Agreement (the
"Transaction Parties").
(b) If so requested by the Company on any date following the date on which
information is first provided to the Company under Section 12.03, the Trustee
shall, within five Business Days following such request, confirm in writing the
accuracy of the representations and warranties set forth in paragraph (a) of
this Section or, if any such representation and warranty is not accurate as of
the date of such request or such confirmation, provide reasonably adequate
disclosure of the pertinent facts, in writing, to the requesting party.
Section 12.03. Information to Be Provided by the Trustee.
(a) If so requested by the Company for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
Certificates, the Trustee shall (i) notify the Company in writing of (A) any
material litigation or governmental proceedings pending against the Trustee and
(B) any affiliations or relationships that develop following the Closing Date
between the Trustee and any Transaction Party, and (ii) provide to the Company a
written description of such proceedings, affiliations or relationships.
(b) In addition to such information as the Trustee is obligated to provide
pursuant to other provisions of this Agreement, if so requested by the Company ,
the Trustee shall provide such information reasonably available to the Trustee
regarding the performance or servicing of the Mortgage Loans as is reasonably
required to facilitate preparation of distribution reports in accordance with
Item 1121 of Regulation AB.
Section 12.04. Report on Assessment of Compliance and Attestation.
On or before March 15 of each calendar year, the Trustee shall:
49
(a) deliver to the Company a report (in form and substance reasonably
satisfactory to the Company) regarding the Trustee's assessment of compliance
with the Servicing Criteria during the immediately preceding calendar year, as
required under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be addressed to the Company and signed by an
authorized officer of the Trustee, and shall address each of the Servicing
Criteria specified on a certification substantially in the form of Exhibit D
hereto; and
(b) deliver to the Company a report of a registered public accounting firm
reasonably acceptable to the Company that attests to, and reports on, the
assessment of compliance made by the Trustee and delivered pursuant to the
preceding paragraph. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act.
Section 12.05. Indemnification; Remedies.
(a) The Trustee shall indemnify the Company, each affiliate of the
Company, the Certificate Administrator and each broker dealer acting as
underwriter, placement agent or initial purchaser of the Certificates or each
Person who controls any of such parties (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees and agents of each of the foregoing,
and shall hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain
arising out of or based upon:
(i)(A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification, accountants'
letter or other material provided under this Article XII by or on behalf
of the Trustee (collectively, the "Trustee Information"), or (B) the
omission or alleged omission to state in the Trustee Information a
material fact required to be stated in the Trustee Information or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, by way
of clarification, that clause (B) of this paragraph shall be construed
solely by reference to the Trustee Information and not to any other
information communicated in connection with a sale or purchase of
securities, without regard to whether the Trustee Information or any
portion thereof is presented together with or separately from such other
information;
(ii) any failure by the Trustee to deliver any information, report,
certification, accountants' letter or other material when and as required
under this Article XII; or
(iii) any breach by the Trustee of a representation or warranty set
forth in Section 12.02(a) or in a writing furnished pursuant to Section
12.02(b).
(b) In the case of any failure of performance described in clause (ii) of
this Section, the Trustee shall promptly reimburse the Company for all costs
reasonably incurred by each such party in order to obtain the information,
report, certification, accountants' letter or other material not delivered as
required by the Trustee.
50
IN WITNESS WHEREOF, the Company, the Certificate Administrator and the
Trustee have caused their names to be signed hereto by their respective officers
thereunto duly authorized and their respective seals, if required, duly
attested, to be hereunto affixed, all as of the day and year first above
written.
RESIDENTIAL ASSET SECURITIES
[Seal] CORPORATION
By:
-----------------------------
Name:
Title:
Attest:
----------------------------
Name:
Title:
[NAME OF CERTIFICATE ADMINISTRATOR]
[Seal] as Certificate Administrator
By:
-----------------------------
Name:
Title:
Attest:
----------------------------
Name:
Title:
[NAME OF TRUSTEE],
[Seal] as Trustee
By:
-----------------------------
Name:
Title:
Attest:
----------------------------
Name:
Title:
51
STATE OF _______________________
COUNTY OF _____________________
On ________________________, 200___ before me, ________________________, Notary
Public, personally appeared ________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------
Signature of the Notary
(Seal)
52
STATE OF _______________________
COUNTY OF _____________________
On ________________________, 200___ before me, ________________________, Notary
Public, personally appeared ________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------
Signature of the Notary
(Seal)
53
STATE OF _______________________
COUNTY OF _____________________
On ________________________, 200___ before me, ________________________, Notary
Public, personally appeared ________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------
Signature of the Notary
(Seal)
54
EXHIBIT A-1
-----------
FORM OF CLASS [A-1][A-2][A-3][S] 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 (THE "CODE").
[NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE CODE, UNLESS THE
TRANSFEREE PROVIDES AN OPINION OF COUNSEL SATISFACTORY TO THE CERTIFICATE
ADMINISTRATOR, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE
BY, ON BEHALF OF, OR WITH "PLAN ASSETS" OF SUCH PLAN IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION AND WILL NOT SUBJECT THE CERTIFICATE ADMINISTRATOR, THE COMPANY OR
THE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT
(AS DEFINED BELOW), PROVIDED THAT NO SUCH OPINION SHALL BE REQUIRED UNDER THE
CIRCUMSTANCES SET FORTH IN THE AGREEMENT.]
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS [ , 200 ]. ASSUMING THAT THE
MORTGAGE LOANS PREPAY AT [ ]% OF THE STANDARD PREPAYMENT ASSUMPTION (AS
DESCRIBED IN THE PROSPECTUS SUPPLEMENT) AND ASSUMING A CONSTANT PASS-THROUGH
RATE EQUAL TO THE INITIAL PASS-THROUGH RATE, THIS CERTIFICATE HAS BEEN ISSUED
WITH NO MORE THAN $[ ] OF OID PER [$1,000/$100,000] OF [PRINCIPAL/NOTIONAL]
AMOUNT AND THE YIELD TO MATURITY IS [ ]%, COMPUTED UNDER THE APPROXIMATE METHOD.
THERE IS NO SHORT ACCRUAL PERIOD WITH RESPECT TO THIS CERTIFICATE. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON
THE STANDARD PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE OR AS TO THE CONSTANCY
OF THE PASS-THROUGH RATE.]
Class [A-1][A-2][A-3][S] Certificate No. [____________]
Date of Trust Agreement: [___]% Pass-Through Rate
[__________________ 1, 200_] [based on Notional Amount]
Reference Date:
[__________________ 1, 200_]
A-1-1
First Distribution Date:
[Aggregate Initial Certificate
[__________________ 1, 200_] Principal Balance of the Class [A-1][A-2][A-3]
Certificates as of the Reference Date:
$[_____________]
Certificate Administrator: [Initial Certificate Principal
[______________] Balance of this Certificate:
$____________]
Assumed Termination Date: [Percentage Interest:_________%]
[_______________ __, 20__]
CUSIP [___________]
MORTGAGE PASS-THROUGH CERTIFICATE, Series [200 - ]
evidencing a percentage interest in any distributions allocable to the
Class [A-1][A-2][A-3][S] Certificates with respect to the Trust Fund
consisting of the Underlying Agency Securities formed and sold by
Residential Asset Securities Corporation.
This Certificate is payable solely from the assets of the Trust Fund, and
does not represent an obligation of or interest in Residential Asset Securities
Corporation, the Certificate Administrator, the Trustee referred to below or
GMAC Mortgage, LLC or any of their affiliates. Although payment of principal and
interest on the Underlying Agency Securities is guaranteed by [GNMA], this
Certificate is not guaranteed or insured by any governmental agency or
instrumentality or by Residential Asset Securities Corporation, the Certificate
Administrator, the Trustee or GMAC Mortgage, LLC or any of their affiliates.
This certifies that [______________] is the registered owner of the
Percentage Interest evidenced by this Certificate ([obtained by dividing the
Certificate Principal Balance of this Certificate by the aggregate Certificate
Principal Balance of all Class [A-1][A-2][A-3] Certificates, both] as specified
above) in certain distributions with respect to a Trust Fund consisting
primarily of a pool of the Underlying Agency Securities, formed and sold by
Residential Asset Securities Corporation (hereinafter called the "Company",
which term includes any successor entity under the Agreement referred to below).
The Trust Fund was created pursuant to a Trust Agreement dated as specified
above (the "Agreement") among the Company, the Certificate Administrator and
[_________________________], 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
third Business Day following the Underlying Security Distribution Date for the
Underlying Agency Securities (the "Distribution Date"), commencing on the first
Distribution Date specified above,
A-1-2
to the Person in whose name this Certificate is registered at the close of
business on the last day (or if such last day is not a Business Day, the
Business Day immediately preceding such last day) of the month next preceding
the month of the Underlying Security Distribution Date for the Underlying Agency
Securities (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 required to be distributed to Holders of Class [____] Certificates on
such Distribution Date. [The Notional Amount of the Class [S] Certificates as of
any date of determination is equal to the Aggregate Underlying Certificate
Balance. The Class [S] Certificates have no Certificate Principal Balance.]
Distributions on this Certificate will be made either by the Trustee or by
a Paying Agent appointed by the Trustee in immediately available funds (by wire
transfer or otherwise) for the account of the Person entitled thereto except as
otherwise provided in the Agreement if such Person shall have so notified the
Certificate Administrator or such Paying Agent, 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 of New York. [The initial aggregate
Certificate Principal Balance of the Certificates is set forth above. The
Certificate Principal Balance hereof will be reduced to the extent of the
distributions allocable to principal.]
This Certificate is one of a duly authorized issue of Certificates issued
in several Classes designated as Mortgage Asset-Backed Pass-Through Certificates
of the Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Underlying Agency Securities, all as more specifically
set forth herein and in the Agreement.
As provided in the Agreement, withdrawals from the 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 to
the Company and the Certificate Administrator of certain expenses incurred, by
either of them.
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 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 the Certificate. The Agreement also
permits the amendment thereof in certain circumstances without the consent
A-1-3
of the Holders of any of the Certificates and, in certain additional
circumstances, without the consent of the Holders of certain Classes of
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 Certificates
of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The 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,
Certificates are exchangeable for new 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 receipt of the
final distribution to be made on the last remaining Underlying Agency Security
in the Trust Fund upon presentation and surrender of such Underlying Agency
Security in accordance with the terms and conditions thereof.
A-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
----------------
[NAME OF TRUSTEE],
as Trustee
By:
---------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1][A-2][A-3][S] Certificates referred to in
the within-mentioned Agreement.
[Name of Certificate Registrar],
as Certificate Registrar
By:
---------------------------------
Authorized Signatory
A-1-5
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) the beneficial interest evidenced by the within the 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 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.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE 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 AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, OR SECTION 4975 OF THE CODE, AS AMENDED, OR SECTION 4975
OF THE CODE, UNLESS THE TRANSFEREE PROVIDES AN OPINION OF COUNSEL SATISFACTORY
TO THE CERTIFICATE ADMINISTRATOR, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE
OF THIS CERTIFICATE BY, ON BEHALF OF, OR WITH "PLAN ASSETS" OF SUCH PLAN IS
PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT SUBJECT THE CERTIFICATE
ADMINISTRATOR, THE COMPANY OR THE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE
UNDERTAKEN IN THE AGREEMENT (AS DEFINED BELOW), PROVIDED THAT NO SUCH OPINION
SHALL BE REQUIRED UNDER THE CIRCUMSTANCES SET FORTH IN THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R 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 EITHER
(A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN
GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF
ANY OF THE FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A COOPERATIVE 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, (C) ANY ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE
CODE, (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR (D) 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 OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS RESIDUAL 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,
A-2-1
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.
Class R Certificate No. [____________]
Date of Trust Agreement: [___]% Pass-Through Rate
[__________________ 1, 200_]
Reference Date:
[__________________ 1, 200_]
First Distribution Date: Aggregate Initial Certificate
[__________________ 1, 200_] Principal the Class R
Certificates $[_____________]
Certificate Administrator: [Initial Certificate Principal
[______________] Balance of this Certificate:
$____________]
Assumed Termination Date: [_________]% [Percentage Interest
[_______________ __, 200_]
CUSIP [___________]
MORTGAGE PASS-THROUGH CERTIFICATE,
Series [200_-___]
evidencing a percentage interest in any distributions allocable to the
Class R Certificates with respect to the Trust Fund consisting of a pool
of Underlying Agency Securities formed and sold by Residential Asset
Securities Corporation
This Certificate is payable solely from the assets of the Trust Fund, and
does not represent an obligation of or interest in Residential Asset Securities
Corporation, the Certificate Administrator or the Trustee referred to below or
GMAC Mortgage, LLC or any of their affiliates. Although payment of principal and
interest on the Underlying Agency Securities is guaranteed by [GNMA], this
Certificate is not guaranteed or insured by any governmental agency or
instrumentality or by Residential Asset Securities Corporation, the Certificate
Administrator, the Trustee or GMAC Mortgage, LLC or any of their affiliates.
This certifies that [_______________] is the registered owner of a
percentage interest evidenced by this Certificate (obtained by dividing the
Initial Certificate Principal Balance of the 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 a pool of Underlying Agency Securities, formed and sold
by Residential Asset Securities Corporation (hereinafter called the "Company",
which term includes any successor entity under the Agreement referred to below).
The Trust Fund was created pursuant
A-2-2
to a Trust Agreement dated as specified above (the "Agreement") among the
Company, the Certificate Administrator and [________________], 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
third Business Day following the Underlying Security Distribution Date for the
Underlying Agency Securities (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last day (or if such last day is
not a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of the related Distribution Date for the
Underlying Agency Securities (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 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 of New York. The Initial Certificate
Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced to the extent of distributions
allocable to principal. Notwithstanding the reduction of the 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.
In connection with any transfer of this Certificate, the Trustee will
require (a) a representation letter, in the form as described by the Agreement,
stating that the transferee is not an employee benefit plan or other plan
subject to the fiduciary responsibility provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or (b) if such
A-2-3
transferee is an employee benefit plan or other plan subject to ERISA, an
opinion of counsel acceptable to and in form and substance satisfactory to the
Trustee, the Company and the Certificate Administrator with respect to the
permissibility of such transfer under ERISA and stating, among other things,
that the transferee's acquisition of this Class R Certificate is permissible
under applicable law, will not constitute or result in any non-exempt
"prohibited transaction" under Section 406 of ERISA or Section 4975 of the
Internal Revenue Code of 1986 and will not subject the Trustee, the Company or
the Certificate Administrator to any obligation or liability (including
obligations under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Agreement. Each Holder of this Class R 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 Class R Certificate must be a Permitted Transferee (and may not be a
Non-United States Person), (ii) no Ownership Interest in this Class R
Certificate may be transferred without the express written consent of the
Company, which consent may be conditioned on the delivery to the Company of,
among other things, an opinion of counsel, (iii) any attempted or purported
transfer of any Ownership Interest in this Class R 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 Permitted
Transferee acquires any Ownership Interest in this Class R 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 Class R Certificate to
sell this Class R 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.
This Certificate is one of a duly authorized issue of Certificates issued
in several Classes designated as Mortgage Asset-Backed Pass-Through Certificates
of the Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Underlying Agency Securities, all as more specifically
set forth herein and in the Agreement.
As provided in the Agreement, withdrawals from the 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 to
the Company and the Certificate Administrator of advances made, or certain
expenses incurred, by either of them.
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 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 the 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 Certificates.
A-2-4
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 Certificates
of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The 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,
Certificates are exchangeable for new 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 receipt of the
final distribution to be made on the last remaining Underlying Agency Security
in the Trust Fund upon presentation and surrender of such Underlying Agency
Security in accordance with the terms and conditions thereof.
A-2-5
IN WITNESS WHEREOF, the Trustee has caused this Class R Certificate to be
duly executed.
Dated:
[NAME OF TRUSTEE],
as Trustee
By:
--------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
[NAME OF CERTIFICATE REGISTRAR],
as Trustee
By:
--------------------------------
Authorized Signatory
A-2-6
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) the beneficial interest evidenced by the within the 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 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.
X-0-0
XXXXXXX X-0
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF [_________________] )
) ss:
COUNTY OF [________________] )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he or she is [Title of Officer] of [Name of Owner] (record or
beneficial owner (the "Owner") of the Residential Asset Securities Corporation,
Class R Certificate, Series [200__-____] (the "Residual Certificates")), 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. The Residual Certificates were issued
pursuant to the Trust Agreement, dated as of [________________ 1, 200__], among
Residential Asset Securities Corporation, as the company (the "Company"),
[________________], as certificate administrator (the "Certificate
Administrator") and [________________], as trustee (the "Trustee").
2. That the Owner (i) is not and will not be a "disqualified organization"
as of [date of transfer] within the meaning of Section 860E(e)(5) of the
Internal Revenue Code of 1986, as amended (the "Code"), (ii) will endeavor to
remain other than a disqualified organization for so long as it retains its
ownership interest in the Residual Certificate and (iii) is acquiring the
Residual Certificates for its own account or for the account of another Owner
from which it has received an affidavit in substantially the same form as this
affidavit and agreement. (For this purpose, a "disqualified organization" means
the United States, any state or political subdivision thereof, or 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 the Residual Certificates to disqualified organizations under the
Code that applies to all transfers of Residual Certificates; (ii) that such tax
would be on the transferor, 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 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 Residual Certificates may be "noneconomic residual
interests" within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will
B-1-1
remain liable for any taxes due with respect to the income of such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through entity"
holding the Residual Certificates 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. That the Owner is aware that the Trustee will not register the transfer
of any Residual 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.
6. That the Owner has reviewed the restrictions set forth on the face of
the Residual Certificates and the provisions of Section 4.02(f) of the Pooling
and Servicing Agreement under which the Residual Certificates were issued (in
particular, clause (iii)(A) and (iii)(B) of Section 4.02(f) which authorize the
Trustee to deliver payments to a person other than the Owner and negotiate a
mandatory sale by the Trustee in the event the Owner holds such Certificates in
violation of Section 4.02(f)). The Owner expressly agrees to be bound by and to
comply with such restrictions and provisions.
7. The Owner warrants and represents that it is [a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended] [a person involved in the organization or operation of
the Company or Certificate Administrator, or an affiliate, as defined in Rule
405 under the Securities Act of 1933, as amended, of either of them].
8. That the Owner consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Residual Certificates will only be owned,
directly or indirectly, by an Owner that is not a disqualified organization.
9. The Owner's Taxpayer Identification Number is [____________].
10. This affidavit and agreement relates only to the Residual Certificates
held by the Owner and not to any other holder of the Residual Certificates. The
Owner understands that the liabilities described herein relate only to the
Residual Certificates.
11. That no purpose of the Owner relating to the purchase of any of the
Residual Certificates by the Owner is or will be to impede the assessment or
collection of any tax.
12. That the Owner has no present knowledge or expectation that it will
become insolvent or subject to a bankruptcy proceeding for so long as any of the
Residual Certificates remain outstanding. In this regard, the Owner hereby
represents to and for the
B-1-2
benefit of the person from whom it acquired the Residual Certificate that the
Owner intends to pay taxes associated with holding such Residual Certificate as
they become due, fully understanding that it may incur tax liabilities in excess
of any cash flows generated by the Residual Certificate.
13. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, 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.
14. The Owner is not an employee benefit plan or other plan subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section
4975 of the Internal Revenue Code of 1986 (the "Code"), or an investment
manager, a named fiduciary or a trustee of any such plan or any other Person
acting, directly or indirectly, on behalf of or purchasing any Residual
Certificate with "plan assets" of any such plan, and understands that
registration of transfer of any Residual Certificate to any such plan, or to any
Person acting on behalf of or purchasing any Residual Certificate with "plan
assets" of any such plan, will not be made unless such plan or Person delivers
an opinion of its counsel, addressed and satisfactory to the Trustee, the
Company and the Certificate Administrator, to the effect that the purchase and
holding of a Residual Certificate by, on behalf of or with "plan assets" of any
such plan is permissible under applicable law, would not constitute or result in
any non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of the Code, and would not subject the Company, the Certificate Administrator or
the Trustee to any obligation or liability (including liabilities under Section
406 of ERISA or Section 4975 of the Code) in addition to those undertaken in the
Trust Agreement or any other liability.
B-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
STATE OF _______________________
COUNTY OF _____________________
On ________________________, 200___ before me, ________________________, Notary
Public, personally appeared ________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------
Signature of the Notary
(Seal)
X-0-0
XXXXXXX X-0
-----------
FORM OF TRANSFEROR CERTIFICATE
[__________________, 20___]
Residential Asset Securities
Corporation
0000 Xxxxxxxxxx Xxxx Xxxx.
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
[Name of Trustee]
[Address of Trustee]
Attention: [________________________]
Re: Mortgage Asset-Backed Pass-Through Certificates, Series [200__-____],
Residual
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[______________________] (the "Seller") to [______________________] (the
"Purchaser") of $[______________________] Initial Certificate Principal Balance
of the Mortgage Asset-Backed Pass-Through Certificates, Series [200__-___],
Class R Certificate (the "Residual Certificates"), pursuant to Section [_____]
of the Trust Agreement (the "Trust Agreement"), dated as of
[______________________ 1, 200__] among Residential Asset Securities
Corporation, as the company (the "Company"), [______________________], as the
certificate administrator (the "Certificate Administrator"), and
[______________________], 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 Residual
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
and the Certificate Administrator a Transfer Affidavit and Agreement in the form
attached to the Trust Agreement as Exhibit B-1. The Seller does not know or
believe that any representation contained therein is false.
3. 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)(r)(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
B-2-1
significant evidence to indicate that the Purchaser will not continue to pay its
debts as they become due in the future. The Seller understands that the transfer
of a Residual 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.
Very truly yours,
[NAME OF SELLER]
(Seller)
By:_______________________________
Name:_____________________________
Title:____________________________
B-2-2
EXHIBIT C
---------
[FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE]
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 Pooling and Servicing
Agreement dated as of [_________], 20[__] (the "Agreement") by and among
[__________], as depositor, [_____________], as Certificate Administrator, and
the Trustee in accordance with the standards set forth therein.
(b) Based on my knowledge, the list of Certificateholders as shown on the
Certificate Register as of the end of each calendar year that is provided by the
Trustee pursuant to the Agreement is accurate as of the last day of the 20[__]
calendar year.
Capitalized terms used and not defined herein shall have the meanings given such
terms in the Agreement.
IN WITNESS WHEREOF, I have duly executed this certificate as of _________,
20__.]
Name:
Title:
C-1
EXHIBIT D
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SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Trustee shall address,
at a minimum, the criteria identified as below as "Applicable Servicing
Criteria":
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Applicable Servicing
Servicing Criteria Criteria
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Reference Criteria
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General Servicing Considerations
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1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements.
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1122(d)(1)(ii) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted to
monitor the third party's performance and compliance with
such servicing activities.
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1122(d)(1)(iii) Any requirements in the transaction agreements to maintain
a back-up servicer for the credit card accounts or accounts
are maintained.
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1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of
the transaction agreements.
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Cash Collection and Administration
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1122(d)(2)(i) Payments on credit card accounts are deposited into the |X|
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days following
receipt, or such other number of days specified in the
transaction agreements.
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1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an |X|
obligor or to an investor are made only by authorized
personnel.
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1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash
flows or distributions, and any interest or other fees
charged for such advances, are made, reviewed and approved
as specified in the transaction agreements.
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1122(d)(2)(iv) The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in the
transaction agreements.
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1122(d)(2)(v) Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
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1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
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1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts.
These reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the
transaction agreements; (C) reviewed and approved by
someone other than the person who prepared the
reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are resolved
within 90 calendar days of their original identification,
or such other number of days specified in the transaction
agreements.
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D-1
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Applicable Servicing
Servicing Criteria Criteria
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Reference Criteria
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Investor Remittances and Reporting
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1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared
in accordance with timeframes and other terms set forth in
the transaction agreements; (B) provide information
calculated in accordance with the terms specified in the
transaction agreements; (C) are filed with the Commission
as required by its rules and regulations; and (D) agree
with investors' or the trustee's records as to the total
unpaid principal balance and number of credit card accounts
serviced by the Servicer.
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1122(d)(3)(ii) Amounts due to investors are allocated and remitted in |X|
accordance with timeframes, distribution priority and other
terms set forth in the transaction agreements.
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1122(d)(3)(iii) Disbursements made to an investor are posted within two |X|
business days to the Servicer's investor records, or such
other number of days specified in the transaction
agreements.
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1122(d)(3)(iv) Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or
custodial bank |X|
statements.
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Pool Asset Administration
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1122(d)(4)(i) Collateral or security on credit card accounts is maintained as |X|
required by the transaction agreements or related asset pool
documents.
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1122(d)(4)(ii) Account and related documents are safeguarded as required by the |X|
transaction agreements
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1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
conditions or requirements in the transaction agreements.
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1122(d)(4)(iv) Payments on credit card accounts, including any payoffs,
made in accordance with the related credit card accounts
documents are posted to the Servicer's obligor records
maintained no more than two business days after receipt, or
such other number of days specified in the transaction
agreements, and allocated to principal, interest or other
items (e.g., escrow) in accordance with the related asset
pool documents.
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1122(d)(4)(v) The Servicer's records regarding the accounts and the
accounts agree with the Servicer's records with respect to
an obligor's unpaid principal balance.
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1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
account (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance
with the transaction agreements and related pool asset
documents.
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1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the
transaction agreements.
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1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a Account is delinquent in accordance
with the transaction agreements. Such records are
maintained on at least a monthly basis, or such other
period specified in the transaction agreements, and
describe the entity's activities in monitoring delinquent
Accounts including, for example, phone calls, letters and
payment rescheduling plans in cases where delinquency is
deemed temporary (e.g., illness or unemployment).
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1122(d)(4)(ix) Adjustments to interest rates or rates of return for
Accounts with variable rates are computed based on the
related Account documents.
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D-2
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Applicable Servicing
Servicing Criteria Criteria
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Reference Criteria
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1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's Account documents, on at
least an annual basis, or such other period specified in
the transaction agreements; (B) interest on such funds is
paid, or credited, to obligors in accordance with
applicable Account documents and state laws; and (C) such
funds are returned to the obligor within 30 calendar days
of full repayment of the related Accounts, or such other
number of days specified in the transaction agreements.
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1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided
that such support has been received by the servicer at
least 30 calendar days prior to these dates, or such other
number of days specified in the transaction agreements.
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1122(d)(4)(xii) Any late payment penalties in connection with any payment
to be made on behalf of an obligor are paid from the
servicer's funds and not charged to the obligor, unless the
late payment was due to the obligor's error or omission.
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1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of days
specified in the transaction
agreements.
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1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
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1122(d)(4)(xv) Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB,
is maintained as set forth in the transaction agreements.
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D-3
