EXECUTION COPY
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RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
________________________________________
TRUST AGREEMENT
Dated as of June 29, 2005
________________________________________
GMACM HOME EQUITY LOAN TRUST 2005-HE2
GMACM Home Equity Loan-Backed Certificates,
Series 2005-HE2
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TABLE OF CONTENTS
PAGE
ARTICLE I Definitions...............................................................1
Section 1.01. Definitions.......................................................1
Section 1.02. Other Definitional Provisions.....................................1
ARTICLE II Organization..............................................................2
Section 2.01. Name..............................................................2
Section 2.02. Office............................................................2
Section 2.03. Purposes and Powers...............................................2
Section 2.04. Appointment of Owner Trustee......................................3
Section 2.05. Initial Capital Contribution of Trust Estate......................3
Section 2.06. Declaration of Trust..............................................3
Section 2.07. Title to Trust Property...........................................4
Section 2.08. Situs of Trust....................................................4
Section 2.09. Representations and Warranties of the Depositor...................4
Section 2.10. Payment of Trust Fees.............................................5
ARTICLE III Conveyance of the Mortgage Loans; Certificates............................5
Section 3.01. Conveyance of the Mortgage Loans..................................5
Section 3.02. Initial Ownership.................................................5
Section 3.03. Issuance of Certificates..........................................5
Section 3.04. Authentication of Certificates....................................6
Section 3.05. Registration of and Limitations on Transfer and Exchange of
Certificates......................................................6
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates................11
Section 3.07. Persons Deemed Certificateholders................................11
Section 3.08. Access to List of Certificateholders' Names and Addresses........11
Section 3.09. Maintenance of Office or Agency..................................12
Section 3.10. Certificate Paying Agent.........................................12
Section 3.11. Subordination....................................................14
Section 3.12. No Priority Among Certificates...................................14
Section 3.13. Cooperation......................................................14
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ARTICLE IV Authority and Duties of Owner Trustee....................................14
Section 4.01. General Authority................................................14
Section 4.02. General Duties...................................................14
Section 4.03. Action upon Instruction..........................................15
Section 4.04. No Duties Except as Specified under Specified Documents or
in Instructions..................................................15
Section 4.05. Restrictions.....................................................16
Section 4.06. Prior Notice to Certificateholders and the Enhancer with
Respect to Certain Matters.......................................16
Section 4.07. Action by Certificateholders with Respect to Certain Matters.....17
Section 4.08. Action by Certificateholders with Respect to Bankruptcy..........17
Section 4.09. Restrictions on Certificateholders' Power........................17
Section 4.10. Majority Control.................................................17
Section 4.11. Doing Business in Other Jurisdictions............................17
ARTICLE V Application of Trust Funds...............................................18
Section 5.01. Distributions....................................................18
Section 5.02. Method of Payment................................................20
Section 5.03. Signature on Returns.............................................20
Section 5.04. Statements to Certificateholders.................................20
ARTICLE VI Concerning the Owner Trustee.............................................20
Section 6.01. Acceptance of Trusts and Duties..................................20
Section 6.02. Furnishing of Documents..........................................21
Section 6.03. Representations and Warranties...................................21
Section 6.04. Reliance; Advice of Counsel......................................22
Section 6.05. Not Acting in Individual Capacity................................23
Section 6.06. Owner Trustee Not Liable for Certificates or Related
Documents........................................................23
Section 6.07. Owner Trustee May Own Certificates and Notes.....................23
ARTICLE VII Compensation of Owner Trustee............................................23
Section 7.01. Owner Trustee's Fees and Expenses................................23
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Section 7.02. Indemnification..................................................24
ARTICLE VIII Termination of Trust Agreement...........................................25
Section 8.01. Termination of Trust Agreement...................................25
Section 8.02. Additional Termination Requirements..............................26
ARTICLE IX Successor Owner Trustees and Additional Owner Trustees...................26
Section 9.01. Eligibility Requirements for Owner Trustee.......................26
Section 9.02. Replacement of Owner Trustee.....................................27
Section 9.03. Successor Owner Trustee..........................................27
Section 9.04. Merger or Consolidation of Owner Trustee.........................28
Section 9.05. Appointment of Co-Trustee or Separate Trustee....................28
ARTICLE X Miscellaneous............................................................29
Section 10.01. Amendments.......................................................29
Section 10.02. No Legal Title to Trust Estate...................................31
Section 10.03. Limitations on Rights of Others..................................31
Section 10.04. Notices..........................................................31
Section 10.05. Severability.....................................................32
Section 10.06. Separate Counterparts............................................32
Section 10.07. Successors and Assigns...........................................32
Section 10.08. No Petition......................................................32
Section 10.09. No Recourse......................................................32
Section 10.10. Headings.........................................................32
Section 10.11. GOVERNING LAW....................................................32
Section 10.12. Integration......................................................33
Section 10.13. Rights of Enhancer to Exercise Rights of Certificateholders......33
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EXHIBITS
Exhibit A - Form of Class SB Certificate..................................................A-1
Exhibit B - Certificate of Trust..........................................................B-1
Exhibit C - Form of Rule 144A Investment Representation...................................C-1
Exhibit D - Form of Investor Representation Letter........................................D-1
Exhibit E - Form of Transferor Representation Letter......................................E-1
Exhibit F - Form of Certificate of Non-Foreign Status.....................................F-1
Exhibit G - Form of ERISA Representation Letter...........................................G-1
Exhibit H - Form of Representation Letter.................................................H-1
Exhibit I-1 - Form of Class R-I Certificates............................................I-1-1
Exhibit I-2 - Form of Class R-II Certificates...........................................I-2-1
Exhibit I-3 - Form of Class R-III Certificates..........................................I-3-1
Exhibit J-1 - Form of Transfer Affidavit and Agreement..................................J-1-1
Exhibit J-2 - Form of Transferor Certificate............................................J-2-1
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This trust agreement, dated as of June 29, 2005 (as amended from time to
time, the "Trust Agreement"), is between Residential Asset Mortgage Products,
Inc., a Delaware corporation, as depositor (the "Depositor"), and Wilmington
Trust Company, a Delaware banking corporation, as owner trustee (the "Owner
Trustee").
WITNESSETH:
WHEREAS, the Depositor and the Owner Trustee desire to form a Delaware
statutory trust;
NOW, THEREFORE, In consideration of the mutual agreements herein
contained, the Depositor and the Owner Trustee agree as follows:
ARTICLE I
Definitions
Section 1.01...Definitions. For all purposes of this Trust Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in Appendix A to the indenture dated as of June 29,
2005 (the "Indenture"), between GMACM Home Equity Loan Trust 2005-HE2, as
Issuer, Xxxxx Fargo Bank, N.A., as Indenture Trustee. All other capitalized
terms used herein shall have the meanings specified herein.
Section 1.02...Other Definitional Provisions.
(a) All terms defined in this Trust Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As used in this Trust Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Trust Agreement or in any such certificate or other document, and
accounting terms partly defined in this Trust Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this Trust
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting principles, the
definitions contained in this Trust Agreement or in any such certificate or
other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar import when
used in this Trust Agreement shall refer to this Trust Agreement as a whole and
not to any particular provision of this Trust Agreement; Section and Exhibit
references contained in this Trust Agreement are references to Sections and
Exhibits in or to this Trust Agreement unless otherwise specified; the term
"including" shall mean "including without limitation"; "or" shall include
"and/or"; and the term "proceeds" shall have the meaning ascribed thereto in the
UCC.
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(d) The definitions contained in this Trust Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE II.....
Organization
Section 2.01...Name. The trust created hereby shall be known as "GMACM Home
Equity Loan Trust 2005-HE2," in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
Section 2.02...Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address in Delaware as
the Owner Trustee may designate by written notice to the Certificateholders, the
Depositor and the Enhancer.
Section 2.03...Purposes and Powers. The purpose of the Trust is to engage in the
following activities:
(i) to issue the Notes pursuant to the Indenture and the Certificates pursuant
to this Trust Agreement and to sell the Notes and the Certificates;
(ii) to purchase the Mortgage Loans and to pay the organizational, start-up and
transactional expenses of the Trust;
(iii) to assign, grant, transfer, pledge and convey the Mortgage Loans pursuant
to the Indenture and to hold, manage and distribute to the Certificateholders
pursuant to Section 5.01 any portion of the Mortgage Loans released from the
Lien of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Basic Documents to
which it is to be a party;
(v) to engage in those activities, including entering into agreements, that are
necessary, suitable or convenient to accomplish the foregoing or are incidental
thereto or connected therewith, including, without limitation, to accept
additional contributions of equity that are not subject to the Lien of the
Indenture; and
(vi) subject to compliance with the Basic Documents, to engage in such other
activities as may be required in connection with conservation of the Trust
Estate and the making of distributions to the Securityholders.
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The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Trust Agreement or the
other Basic Documents while any Note is outstanding without the consent of the
Certificateholders of Certificates evidencing a majority of the aggregate
Certificate Percentage Interest of each Class of Certificates, the Indenture
Trustee, the Enhancer and the Noteholders of Notes representing a majority of
the aggregate Voting Rights of the Notes.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby appoints the
Owner Trustee as trustee of the Trust effective as of the date hereof, to have
all the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Trust Estate. In consideration of
the delivery by the Owner Trustee, on behalf of the Trust, of the Securities to
the Depositor or its designee, upon the order of the Depositor, the Depositor,
as of the Closing Date and concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey to the Trust,
without recourse, but subject to the other terms and provisions of this Trust
Agreement, all of the right, title and interest of the Depositor in and to the
Trust Estate. The foregoing transfer, assignment, set over and conveyance does
not, and is not intended to, result in a creation or an assumption by the Trust
of any obligation of the Depositor or any other Person in connection with the
Trust Estate or under any agreement or instrument relating thereto, except as
specifically set forth herein.
The Owner Trustee, on behalf of the Trust, acknowledges the conveyance
to the Trust by the Depositor, as of the Closing Date, of the Trust Estate,
including all right, title and interest of the Depositor in and to the Trust
Estate. Concurrently with such conveyance and in exchange therefor, the Trust
has pledged the Trust Estate to the Indenture Trustee and has executed the
Certificates and the Notes and caused them to be duly authenticated and
delivered.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares that it
shall hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Certificateholders, subject to the
obligations of the Trust under the Basic Documents. It is the intention of the
parties hereto that the Trust constitute a statutory trust under the Statutory
Trust Statute and that this Trust Agreement constitute the governing instrument
of such statutory trust. Effective as of the date hereof, the Owner Trustee
shall have all rights, powers and duties set forth herein and in the Statutory
Trust Statute with respect to accomplishing the purposes of the Trust. It is the
intention of the parties hereto that, solely for federal, state and local income
and franchise tax purposes, the Trust shall be treated as an entity wholly owned
by the Depositor or an affiliate thereof, with the assets of the entity being
the Trust Estate. It is the further intention of the parties that an election to
be treated as a REMIC ("REMIC I") for federal income tax purposes be made with
respect to the Trust Estate, exclusive of the Pre-Funding Account and the
Capitalized Interest Account, each of which shall be treated as an "outside
reserve fund" for purposes of the REMIC Provisions, that a second election to be
treated as a REMIC be made with respect to the REMIC I Regular Interests ("REMIC
II") and that a third election to be treated as a REMIC be made with respect to
the REMIC II Regular Interests ("REMIC III"). The Issuer will provide for the
administration of the REMICs pursuant to Article XI of the Indenture. The
provisions of this Trust Agreement shall be interpreted to further such
intentions. Neither the Depositor nor any Certificateholder shall have any
personal liability for any liability or obligation of the Trust, other than the
indemnification obligation provided in Section 7.02 herein.
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Section 2.07. Title to Trust Property. Legal title to the Trust Estate shall be
vested at all times in the Trust as a separate legal entity except where
applicable law in any jurisdiction requires title to any part of the Trust
Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section 2.08. Situs of Trust. The Trust will be located and administered in the
State of Delaware. All bank accounts maintained by the Owner Trustee on behalf
of the Trust shall be located in the State of Delaware or the State of Maryland.
The Trust shall not have any employees in any state other than Delaware;
provided, however, that nothing herein shall restrict or prohibit the Owner
Trustee from having employees within or without the State of Delaware or taking
actions outside the State of Delaware in order to comply with Section 2.03.
Payments will be received by the Trust only in Delaware or Maryland, and
payments will be made by the Trust only from Delaware or Maryland. The only
office of the Trust will be at the Corporate Trust Office of the Owner Trustee
in Delaware.
Section 2.09. Representations and Warranties of the Depositor. The Depositor
hereby represents and warrants to the Owner Trustee and the Enhancer that:
(a) The Depositor is duly organized and validly existing as a corporation in
good standing under the laws of the State of Delaware, with power and authority
to own its properties and to conduct its business as such properties are
currently owned and such business is at present conducted.
(b) The Depositor is duly qualified to do business as a foreign corporation in
good standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its property or the conduct of
its business shall require such qualifications and in which the failure to so
qualify would have a material adverse effect on the business, properties, assets
or condition (financial or otherwise) of the Depositor and the ability of the
Depositor to perform under this Trust Agreement.
(c) The Depositor has the power and authority to execute and deliver this Trust
Agreement and to carry out its terms; the Depositor has full power and authority
to sell and assign the property to be sold and assigned to and deposited with
the Trust as part of the Trust and the Depositor has duly authorized such sale
and assignment and deposit to the Trust by all necessary corporate action; and
the execution, delivery and performance of this Trust Agreement have been duly
authorized by the Depositor by all necessary corporate action.
(d) The consummation of the transactions contemplated by this Trust Agreement
and the fulfillment of the terms hereof do not conflict with, result in any
material breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a material default under, the articles of
incorporation or bylaws of the Depositor, or any material indenture, agreement
4
or other instrument to which the Depositor is a party or by which it is bound;
nor result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents); nor violate any law or, to the
best of the Depositor's knowledge, any order, rule or regulation applicable to
the Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties.
Section 2.10. Payment of Trust Fees. The Owner Trustee shall pay the Trust's
fees and expenses incurred with respect to the performance of the Trust's duties
under the Indenture.
ARTICLE III
Conveyance of the Mortgage Loans; Certificates
Section 3.01. Conveyance of the Mortgage Loans. The Depositor, concurrently with
the execution and delivery hereof, does hereby transfer, convey and assign to
the Trust, on behalf of the Securityholders and the Enhancer, without recourse,
all its right, title and interest in and to the Initial Mortgage Loans,
including but not limited to any rights of the Depositor under the Purchase
Agreement.
The parties hereto intend that, for non-tax purposes, the transaction
set forth herein be a sale by the Depositor to the Trust of all of its right,
title and interest in and to the Initial Mortgage Loans. In the event that, for
non-tax purposes, the transaction set forth herein is not deemed to be a sale,
the Depositor hereby grants to the Trust a security interest in all of its
right, title and interest in, to and under the Initial Mortgage Loans, all
distributions thereon and all proceeds thereof; and this Trust Agreement shall
constitute a security agreement under applicable law.
Section 3.02. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and the conveyance of the
Initial Mortgage Loans pursuant to Section 3.01 and the issuance of the
Certificates, GMACM shall be the sole Certificateholder of each Class of
Certificates.
Section 3.03. Issuance of Certificates. The Certificates of each Class shall be
issued in minimum denominations of a Percentage Interest of 10.0000% and
integral multiples of 0.0001% in excess thereof. The Class SB Certificates shall
be issued in substantially the form attached hereto as Exhibit A. The Class R-I
Certificates, Class R-II Certificates and the Class R-III Certificates shall be
issued in substantially the form attached hereto as Exhibit I-1, I-2 and I-3,
respectively.
The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Owner Trustee and
authenticated in the manner provided in Section 3.04. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefit of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of such
Certificates. A Person shall become a Certificateholder and shall be entitled to
the rights and subject to the obligations of a Certificateholder hereunder upon
such Person's acceptance of a Certificate duly registered in such Person's name,
pursuant to Section 3.05.
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A transferee of a Certificate shall become a Certificateholder and shall
be entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee's acceptance of a Certificate duly registered in
such transferee's name pursuant to and upon satisfaction of the conditions set
forth in Section 3.05.
Section 3.04. Authentication of Certificates. Concurrently with the acquisition
of the Initial Mortgage Loans by the Trust, the Owner Trustee or the Certificate
Paying Agent shall cause the Certificates in an initial Percentage Interest of
100.00% to be executed on behalf of the Trust, authenticated and delivered to or
upon the written order of GMACM, signed by its chairman of the board, its
president or any vice president, without further corporate action by GMACM, in
authorized denominations. No Certificate shall entitle the Certificateholder
thereof to any benefit under this Trust Agreement or be valid for any purpose
unless there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A or Exhibit I hereto, executed
by the Owner Trustee or the Certificate Paying Agent, by manual signature, and
such authentication shall constitute conclusive evidence that such Certificate
has been duly authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication.
Section 3.05. Registration of and Limitations on Transfer and Exchange of
Certificates. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.09, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Indenture
Trustee shall be the initial Certificate Registrar. If the Certificate Registrar
resigns or is removed, the Owner Trustee shall appoint a successor Certificate
Registrar.
Subject to satisfaction of the conditions set forth below, upon
surrender for registration of transfer of any Certificate at the office or
agency maintained pursuant to Section 3.09, the Owner Trustee shall execute,
authenticate and deliver (or shall cause the Certificate Registrar as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate amount dated the date of authentication by the
Owner Trustee or any authenticating agent. At the option of a Certificateholder,
Certificates may be exchanged for other Certificates of authorized denominations
of a like aggregate amount upon surrender of the Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.09.
Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Certificateholder
or such Certificateholder's attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall be
cancelled and subsequently disposed of by the Certificate Registrar in
accordance with its customary practice.
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No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Except as described below, each Certificateholder shall establish its
non-foreign status by submitting to the Certificate Paying Agent an IRS Form W-9
and the Certificate of Non-Foreign Status (in substantially the form attached
hereto as Exhibit F).
A Certificate may be transferred to a Certificateholder unable to
establish its non-foreign status as described in the preceding paragraph only if
such Certificateholder provides an Opinion of Counsel to the Depositor, the
Enhancer, the Certificate Registrar, which Opinion of Counsel shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar, the Enhancer
or the Depositor, satisfactory to the Depositor and the Enhancer, that such
transfer (1) will not affect the tax status of the Owner Trust and (2) will not
adversely affect the interests of any Securityholder or the Enhancer, including,
without limitation, as a result of the imposition of any United States federal
withholding taxes on the Owner Trust (except to the extent that such withholding
taxes would be payable solely from amounts otherwise distributable to the
Certificate of the prospective transferee). If such transfer occurs and such
foreign Certificateholder becomes subject to such United States federal
withholding taxes, any such taxes will be withheld by the Indenture Trustee at
the direction of the Tax Matters Partner. Each Certificateholder unable to
establish its non-foreign status shall submit to the Certificate Paying Agent a
copy of its Form W-8-BEN or such successor form as required by then-applicable
regulations and shall resubmit such form every three years or with such
frequency as required by then-applicable regulations.
No transfer, sale, pledge or other disposition of a Certificate shall be
made unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with the Securities Act and such state
laws. In the event of any such transfer, the Certificate Registrar or the
Depositor shall prior to such transfer require the transferee to execute (A)
either (i) (a) an investment letter in substantially the form attached hereto as
Exhibit C (or in such form and substance reasonably satisfactory to the
Certificate Registrar and the Depositor) which investment letters shall not be
an expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Servicer or the Depositor and which investment letter states that, among other
things, such transferee (a) is a "qualified institutional buyer" as defined
under Rule 144A, acting for its own account or the accounts of other "qualified
institutional buyers" as defined under Rule 144A, and (b) is aware that the
proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act, provided by Rule 144A or (ii) (a) a
written Opinion of Counsel acceptable to and in form and substance satisfactory
to the Certificate Registrar and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the Securities Act and such state laws or is being made pursuant
to the Securities Act and such state laws, which Opinion of Counsel shall not be
an expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Servicer or the Depositor and (b) the transferee executes a representation
letter, substantially in the form of Exhibit D hereto, and the transferor
executes a representation letter, substantially in the form of Exhibit E hereto,
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each acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor certifying the facts surrounding such transfer,
which representation letters shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Servicer or the Depositor and (B) the
Certificate of Non-Foreign Status (in substantially the form attached hereto as
Exhibit F) acceptable to and in form and substance reasonably satisfactory to
the Certificate Registrar and the Depositor, which certificate shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar or the
Depositor. If such Certificateholder is unable to provide a Certificate of
Non-Foreign Status, such Certificateholder must provide an Opinion of Counsel as
described in the preceding paragraph. The Certificateholder desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trust, the Owner
Trustee, the Certificate Registrar, the Enhancer, the Servicer and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws. No transfer of Certificates
or any interest therein shall be made to any Plan, any Person acting, directly
or indirectly, on behalf of any such Plan or any Person acquiring such
Certificates with Plan Assets unless the Depositor, the Owner Trustee, the
Certificate Registrar and the Servicer are provided with an Opinion of Counsel
that establishes to the satisfaction of the Depositor, the Owner Trustee, the
Certificate Registrar and the Servicer that the purchase of Certificates is
permissible under applicable law, will not constitute or result in any
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Depositor, the Owner Trustee, the Certificate Registrar or the
Servicer to any obligation or liability (including obligations or liabilities
under ERISA or Section 4975 of the Code) in addition to those undertaken in this
Trust Agreement, which Opinion of Counsel shall not be an expense of the
Depositor, the Owner Trustee, the Certificate Registrar or the Servicer. Any
Person acquiring Certificates must provide a certification in the form of
Exhibit G to this Trust Agreement, which the Depositor, the Owner Trustee, the
Certificate Registrar and the Servicer may rely upon without further inquiry or
investigation, unless such Person is acting, directly or indirectly, on behalf
of or with Plan Assets of a Plan and provides an Opinion of Counsel as described
in the next preceding sentence. Neither an Opinion of Counsel nor a
certification will be required in connection with the initial transfer of any
such Certificate by the Depositor to an Affiliate of the Depositor (in which
case, the Depositor or any such Affiliate shall be deemed to have represented
that such Affiliate is not a Plan or a Person investing Plan Assets of any Plan)
and the Owner Trustee shall be entitled to conclusively rely upon a
representation (which, upon the request of the Owner Trustee, shall be a written
representation) from the Depositor of the status of such transferee as an
Affiliate of the Depositor.
In addition, with respect to each Class R Certificate:
(i) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Certificate Paying Agent or its designee under
clause (iii)(A) below to deliver payments to a Person other than such Person and
to negotiate the terms of any mandatory sale under clause (iii)(B) below and to
execute all instruments of transfer and to do all other things necessary in
connection with any such sale. The rights of each Person acquiring any Ownership
Interest in a Class R Certificate are expressly subject to the following
provisions:
8
(A) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall promptly
notify the Owner Trustee of any change or impending change in its status
as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of any Class
R Certificate until its receipt of, (I) an affidavit and agreement (a
"Transfer Affidavit and Agreement," in the form attached hereto as
Exhibit J-1) from the proposed Transferee, in form and substance
satisfactory to the Servicer, representing and warranting, among other
things, that it is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Class R Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for any Person who is
not a Permitted Transferee, that for so long as it retains its Ownership
Interest in a Class R Certificate, it will endeavor to remain a
Permitted Transferee, and that it has reviewed the provisions of this
Section 3.05 and agrees to be bound by them, and (II) a certificate, in
the form attached hereto as Exhibit J-2, from the Certificateholder of a
Class R Certificate wishing to transfer the Class R Certificate, in form
and substance satisfactory to the Servicer, representing and warranting,
among other things, that no purpose of the proposed Transfer is to
impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of the Certificate Registrar who is assigned to this
Agreement has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in a Class R
Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (x) to require a Transfer Affidavit and
Agreement from any other Person to whom such Person attempts to transfer
its Ownership Interest in a Class R Certificate and (y) not to transfer
its Ownership Interest unless it provides a certificate to the
Certificate Registrar in the form attached hereto as Exhibit J-2.
(E) Each Person holding or acquiring an Ownership Interest in a
Class R Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Certificate Registrar written notice
that it is a "pass-through interest holder" within the meaning of
Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring an Ownership Interest in a Class R Certificate, if it is,
or is holding an Ownership Interest in a Class R Certificate on behalf
of, a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Class R
Certificate only if it shall have received the Transfer Affidavit and Agreement,
a certificate of the Certificateholder of a Class R Certificate requesting such
transfer in the form attached hereto as Exhibit G-2 and all of such other
documents as shall have been reasonably required by the Certificate Registrar as
a condition to such registration. Transfers of the Class R Certificates to
Non-United States Persons and Disqualified Organizations are prohibited.
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(iii) (A) If any Disqualified Organization shall become a holder of a
Class R Certificate, then the last preceding Permitted Transferee shall
be restored, to the extent permitted by law, to all rights and
obligations as Certificateholder of a Class R Certificate thereof
retroactive to the date of registration of such Transfer of such Class R
Certificate. If a Non-United States Person shall become a holder of a
Class R Certificate, then the last preceding United States Person shall
be restored, to the extent permitted by law, to all rights and
obligations as Certificateholder of a Class R Certificate thereof
retroactive to the date of registration of such Transfer of such Class R
Certificate. If a transfer of a Class R Certificate is disregarded
pursuant to the provisions of Treasury Regulations Section 1.860E-1 or
Section 1.860G-3, then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights and obligations
as Certificateholder of a Class R Certificate thereof retroactive to the
date of registration of such Transfer of such Class R Certificate. The
Certificate Registrar shall be under no liability to any Person for any
registration of Transfer of a Class R Certificate that is in fact not
permitted by this Section 3.05 or for making any payments due on such
Certificate to the holder thereof or for taking any other action with
respect to such holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Certificateholder
of a Class R Certificate in violation of the restrictions in this
Section 3.05 and to the extent that the retroactive restoration of the
rights of the Certificateholder of such Class R Certificate as described
in clause (iii)(A) above shall be invalid, illegal or unenforceable,
then the Servicer shall have the right, without notice to the holder or
any prior holder of such Class R Certificate, to sell such Class R
Certificate to a purchaser selected by the Servicer on such terms as the
Servicer may choose. Such purported Transferee shall promptly endorse
and deliver each Class R Certificate in accordance with the instructions
of the Servicer. Such purchaser may be the Servicer itself or any
Affiliate of the Servicer. The proceeds of such sale, net of the
commissions (which may include commissions payable to the Servicer or
its Affiliates), expenses and taxes due, if any, will be remitted by the
Servicer to such purported Transferee. The terms and conditions of any
sale under this clause (iii)(B) shall be determined in the sole
discretion of the Servicer, and the Servicer shall not be liable to any
Person having an Ownership Interest in a Class R Certificate as a result
of its exercise of such discretion.
(iv) The Certificate Paying Agent shall make available, upon written
request from the Internal Revenue Service and any potentially affected Person,
all information necessary to compute any tax imposed (A) as a result of the
Transfer of an Ownership Interest in a Class R Certificate to any Person who is
a Disqualified Organization, including the information regarding "excess
inclusions" of such Class R Certificates required to be provided to the Internal
Revenue Service and certain Persons as described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Class R Certificate having as among its
record holders at any time any Person who is a Disqualified Organization.
Reasonable compensation for providing such information may be required by the
REMIC Administrator before it will provide such information to any such
potentially affected Person.
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(v) The provisions of this Section 3.05 set forth prior to this clause
(v) may be modified, added to or eliminated, provided that there shall have been
delivered to the Owner Trustee the following:
(A) written notification from each Rating Agency to the effect
that the modification, addition to or elimination of such provisions
will not cause such Rating Agency to downgrade its then-current ratings,
if any, of any Class of the Notes below the lower of the then-current
rating or the rating assigned to such Notes as of the Closing Date by
such Rating Agency; and
(B) subject to Section 10.01(f), an Officers' Certificate of the
Servicer stating that the Servicer has received an Opinion of Counsel,
in form and substance satisfactory to the Servicer, to the effect that
such modification, addition to or absence of such provisions will not
cause any portion of any of the REMICs to cease to qualify as a REMIC
and will not cause (x) any portion of any of the REMICs to be subject to
an entity-level tax caused by the Transfer of any Class R Certificate to
a Person that is a Disqualified Organization or (y) a Certificateholder
or another Person to be subject to a REMIC-related tax caused by the
Transfer of a Class R Certificate to a Person that is not a Permitted
Transferee.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate shall be surrendered to the Certificate Registrar, or if
the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them and the Issuer from harm, then in
the absence of notice to the Certificate Registrar or the Owner Trustee that
such Certificate has been acquired by a bona fide purchaser, the Owner Trustee
on behalf of the Trust shall execute and the Owner Trustee or the Certificate
Paying Agent, as the Trust's authenticating agent, shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and denomination. In
connection with the issuance of any new Certificate under this Section 3.06, the
Owner Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this Section
3.06 shall constitute conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 3.07. Persons Deemed Certificateholders. Prior to due presentation of a
Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar or any Certificate Paying Agent may treat the Person in whose name any
Certificate is registered in the Certificate Register as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 5.02
and for all other purposes whatsoever, and none of the Trust, the Owner Trustee,
the Certificate Registrar or any Paying Agent shall be bound by any notice to
the contrary.
Section 3.08. Access to List of Certificateholders' Names and Addresses. The
Certificate Registrar shall furnish or cause to be furnished to the Depositor or
the Owner Trustee, within 15 days after receipt by the Certificate Registrar of
a written request therefor from the Depositor or the Owner Trustee, a list, in
such form as the Depositor or the Owner Trustee, as the case may be, may
reasonably require, of the names and addresses of the Certificateholders as of
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the most recent Record Date. If three or more Certificateholders, or one or more
Certificateholders evidencing not less than 25% of the Certificate Percentage
Interest of any Class, apply in writing to the Owner Trustee or the Certificate
Registrar, and such application states that the applicants desire to communicate
with other Certificateholders, with respect to their rights under this Agreement
or under the Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Owner Trustee
shall, within five (5) Business Days after the receipt of such application,
afford such applicants access during normal business hours to the current list
of Certificateholders. Each Certificateholder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Registrar or the Owner Trustee accountable by reason
of the disclosure of its name and address, regardless of the source from which
such information was derived.
Section 3.09. Maintenance of Office or Agency. The Owner Trustee, on behalf of
the Trust, shall maintain in The City of New York an office or offices or agency
or agencies where Certificates may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Owner Trustee in
respect of the Certificates and the Basic Documents may be served. The Owner
Trustee initially designates the Corporate Trust Office of the Indenture Trustee
(or such other office as the Indenture Trustee may specify to the Owner Trustee)
as its office for such purposes. The Owner Trustee shall give prompt written
notice to the Depositor, the Enhancer and the Certificateholders of any change
in the location of the Certificate Register or any such office or agency.
Section 3.10. Certificate Paying Agent.
(a) The Certificate Paying Agent shall make distributions to
Certificateholders from the Distribution Account on behalf of the Trust
in accordance with the provisions of the Certificates and Section 5.01
hereof from payments remitted to the Certificate Paying Agent by the
Indenture Trustee pursuant to Section 3.05 of the Indenture. The Trust
hereby appoints the Indenture Trustee as Certificate Paying Agent. The
holder of the Class SB Certificates, as the party who would otherwise be
entitled to the distributions to the Class A-IO Noteholders under
Section 3.05(a)(x) of the Indenture, hereby irrevocably instructs the
Certificate Paying Agent to pay those amounts (comprising unpaid
Interest Carry Forward Amounts with respect to the Notes) to the
Indenture Trustee for payment to the Noteholders in accordance with the
provisions of Section 3.05(a)(x) of the Indenture. The Certificate
Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due with respect to
the Certificates in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust of which it
has actual knowledge in the making of any payment required to be made
with respect to the Certificates;
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(iii) at any time during the continuance of any such default, upon the written
request of the Owner Trustee, forthwith pay to the Owner Trustee on
behalf of the Trust all sums so held in trust by such Certificate Paying
Agent;
(iv) immediately resign as Certificate Paying Agent and forthwith pay to the
Owner Trustee on behalf of the Trust all sums held by it in trust for
the payment of Certificates if at any time it ceases to meet the
standards required to be met by the Certificate Paying Agent at the time
of its appointment;
(v) comply with all requirements of the Code with respect to the withholding
from any payments made by it on any Certificates of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith; and
(vi) deliver to the Owner Trustee a copy of the report to Certificateholders
prepared with respect to each Payment Date by the Servicer pursuant to
Section 4.01 of the Servicing Agreement.
(b) The Trust may revoke such power and remove the Certificate Paying Agent
if the Owner Trustee determines in its sole discretion that the
Certificate Paying Agent shall have failed to perform its obligations
under this Trust Agreement in any material respect. The Indenture
Trustee shall be permitted to resign as Certificate Paying Agent upon 30
days' written notice to the Owner Trustee and the Enhancer; provided the
Indenture Trustee is also resigning as Paying Agent under the Indenture
at such time. In the event that the Indenture Trustee shall no longer be
the Certificate Paying Agent under this Trust Agreement and Paying Agent
under the Indenture, the Owner Trustee shall appoint a successor to act
as Certificate Paying Agent (which shall be a bank or trust company) and
which shall also be the successor Paying Agent under the Indenture. The
Owner Trustee shall cause such successor Certificate Paying Agent or any
additional Certificate Paying Agent appointed by the Owner Trustee to
execute and deliver to the Owner Trustee an instrument to the effect set
forth in this Section 3.10 as it relates to the Certificate Paying
Agent. The Certificate Paying Agent shall return all unclaimed funds to
the Trust and upon removal of a Certificate Paying Agent such
Certificate Paying Agent shall also return all funds in its possession
to the Trust. The provisions of Sections 6.01, 6.03, 6.04 and 7.01 shall
apply to the Certificate Paying Agent to the extent applicable. Any
reference in this Trust Agreement to the Certificate Paying Agent shall
include any co-paying agent unless the context requires otherwise.
(c) The Certificate Paying Agent shall establish and maintain with itself
the Distribution Account in which the Certificate Paying Agent shall
deposit, on the same day as it is received from the Indenture Trustee,
each remittance received by the Certificate Paying Agent with respect to
payments made pursuant to the Indenture. Pending any such distribution,
funds deposited in the Distribution Account on a Payment Date and not
distributed to the Certificateholders on such Payment Date shall be
invested by the Certificate Paying Agent in Permitted Investments
selected by the Servicer (or if no selection is made by the Servicer in
Permitted Investments described in clause (v) of the definition thereof)
maturing no later than the Business Day preceding the next succeeding
Payment Date (except that any investment in the institution with which
the Distribution Account is maintained may mature on such Payment Date
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and shall not be sold or disposed of prior to the maturity). All
investment income earned in respect of funds on deposit in the
Distribution Account shall be credited to the Distribution Account. The
Certificate Paying Agent shall make all distributions on the
Certificates as provided in Section 3.05 of the Indenture and Section
5.01(a) of this Trust Agreement from moneys on deposit in the
Distribution Account.
Section 3.11. Subordination. Except as otherwise provided in the Basic
Documents, for so long as any Notes are outstanding or unpaid, the
Certificateholders will generally be subordinated in right of payment, under the
Certificates or otherwise, to payments to the Noteholders under, or otherwise
related to, the Indenture. If an Event of Default has occurred and is continuing
under the Indenture, the Certificates will be fully subordinated to obligations
owing by the Trust to the Noteholders and the Enhancer under, or otherwise
related to, the Indenture, and no distributions will be made on the Certificates
until the Noteholders and the Indenture Trustee and the Enhancer have been
irrevocably paid in full.
Section 3.12. No Priority Among Certificates. All Certificateholders shall rank
equally as to amounts distributable upon the liquidation, dissolution or winding
up of the Trust, with no preference or priority being afforded to any
Certificateholders over any other Certificateholders, except that amounts
distributable will be distributed first to the Class SB Certificates, in an
amount equal to the Class SB Distribution Amount, before being distributed to
any other Class of Certificates.
Section 3.13. Cooperation. The Owner Trustee shall cooperate in all respects
with any reasonable request by the Enhancer for action to preserve or enforce
the Enhancer's rights or interest under this Trust Agreement or the Insurance
Agreement, consistent with this Trust Agreement and without limiting the rights
of the Certificateholders as otherwise expressly set forth in this Trust
Agreement.
ARTICLE IV
Authority and Duties of Owner Trustee
Section 4.01. General Authority. The Owner Trustee is authorized and directed to
execute and deliver the Basic Documents to which the Trust is to be a party and
each certificate or other document attached as an exhibit to or contemplated by
the Basic Documents to which the Trust is to be a party, as well as any
certificate that supports the factual assumptions made in any Opinion of Counsel
delivered on the Closing Date, and any amendment or other agreement or
instrument described herein, in each case, in such form as the Owner Trustee
shall approve, as evidenced conclusively by the Owner Trustee's execution
thereof. In addition to the foregoing, the Owner Trustee is obligated to take
all actions required of the Trust pursuant to the Basic Documents.
Section 4.02. General Duties. The Owner Trustee shall be responsible to
administer the Trust pursuant to the terms of this Trust Agreement and the other
Basic Documents to which the Trust is a party and in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Trust Agreement.
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Section 4.03. Action upon Instruction.
(a) Subject to this Article IV and Section 10.13 of this Trust Agreement and in
accordance with the terms of the Basic Documents, the Certificateholders may by
written instruction direct the Owner Trustee in the management of the Trust.
Such direction may be exercised at any time by written instruction of the
Certificateholders pursuant to this Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be required to
take any action hereunder or under any Basic Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any other Basic Document or is otherwise
contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative courses
of action permitted or required by the terms of this Trust Agreement or under
any other Basic Document, or in the event that the Owner Trustee is unsure as to
the application of any provision of this Trust Agreement or any other Basic
Document or any such provision is ambiguous as to its application, or is, or
appears to be, in conflict with any other applicable provision, or in the event
that this Trust Agreement permits any determination by the Owner Trustee or is
silent or is incomplete as to the course of action that the Owner Trustee is
required to take with respect to a particular set of facts, the Owner Trustee
shall promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders (with a copy to the Enhancer)
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instructions received from Certificateholders of Certificates representing a
majority of the aggregate Certificate Percentage Interest of each Class of
Certificates, the Owner Trustee shall not be liable on account of such action to
any Person. If the Owner Trustee shall not have received appropriate instruction
within 10 days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agreement or the other Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders, and the Owner Trustee shall have no liability to any Person
for such action or inaction.
Section 4.04. No Duties Except as Specified under Specified Documents or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Trust Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 4.03; and no implied duties or obligations
shall be read into this Trust Agreement or any other Basic Document against the
Owner Trustee. The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any filing with the Commission for
the Trust or to record this Trust Agreement or any other Basic Document. The
Owner Trustee nevertheless agrees that it will, at its own cost and expense,
promptly take all action as may be necessary to discharge any liens on any part
of the Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the Trust
Estate.
15
Section 4.05. Restrictions.
(a) The Owner Trustee shall not take any action (i) that is inconsistent with
the purposes of the Trust set forth in Section 2.03 or (ii) that, to the actual
knowledge of the Owner Trustee, would cause the Trust to be treated as an
association (or a publicly-traded partnership) taxable as a corporation or a
taxable mortgage pool for federal income tax purposes or would cause any of the
REMICs to fail to qualify as a REMIC or cause any of the REMICS to be subject to
tax at any time that any of the Notes or Certificates are outstanding or any
obligations are due and owing to the Enhancer under the Insurance Agreement. The
Certificateholders shall not direct the Owner Trustee to take action that would
violate the provisions of this Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the Trust's properties
or assets, including those included in the Trust Estate, to any person unless
(i) it shall have received an Opinion of Counsel to the effect that such
transaction will not have any material adverse tax consequence to the Trust or
any Certificateholder and (ii) such conveyance or transfer shall not violate the
provisions of Section 3.16(b) of the Indenture.
Section 4.06. Prior Notice to Certificateholders and the Enhancer with Respect
to Certain Matters. With respect to the following matters, the Owner Trustee
shall not take action unless, at least 30 days before the taking of such action,
the Owner Trustee shall have notified the Certificateholders and the Enhancer in
writing of the proposed action and the Enhancer and the Certificateholders of
Certificates representing a majority of the aggregate Certificate Percentage
Interest shall not have notified the Owner Trustee in writing prior to the 30th
day after such notice is given that such Certificateholders have withheld
consent or provided alternative direction:
(a) the initiation of any Proceeding by the Trust (except Proceedings brought in
connection with the collection of cash distributions due and owing under the
Mortgage Loans) and the compromise of any Proceeding brought by or against the
Trust (except with respect to the aforementioned Proceedings for collection of
cash distributions due and owing under the Mortgage Loans);
(b) the election by the Trust to file an amendment to the Certificate of Trust
(unless such amendment is required to be filed under the Statutory Trust
Statute);
(c) the amendment of any of the Basic Documents in circumstances where the
consent of any Noteholder is required;
(d) the amendment of any of the Basic Documents in circumstances where the
consent of any Noteholder is not required and such amendment materially and
adversely affects the interest of the Certificateholders;
(e) the appointment pursuant to the Indenture of a successor Note Registrar,
Paying Agent or Indenture Trustee or pursuant to this Trust Agreement of a
successor Certificate Registrar or Certificate Paying Agent or the consent to
the assignment by the Note Registrar, Paying Agent, Indenture Trustee,
Certificate Registrar or Certificate Paying Agent of its obligations under the
Indenture or this Trust Agreement, as applicable.
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Section 4.07. Action by Certificateholders with Respect to Certain Matters. The
Owner Trustee shall not have the power, except upon the written direction of
Certificateholders of Certificates evidencing not less than a majority of the
aggregate Certificate Percentage Interest of each Class of Certificates, and
with the consent of the Enhancer, to (a) remove the Servicer under the Servicing
Agreement pursuant to Section 7.01 thereof or (b) except as expressly provided
in the Basic Documents, sell the Mortgage Loans after the termination of the
Indenture.
Section 4.08. Action by Certificateholders with Respect to Bankruptcy. The Owner
Trustee shall not have the power to commence a voluntary Proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders, and with the consent of the Enhancer, and the delivery to
the Owner Trustee by each such Certificateholder of a certificate certifying
that such Certificateholder reasonably believes that the Trust is insolvent.
Section 4.09. Restrictions on Certificateholders' Power. The Certificateholders
shall not direct the Owner Trustee to take or to refrain from taking any action
if such action or inaction would be contrary to any obligation of the Trust or
the Owner Trustee under this Trust Agreement or any of the other Basic Documents
or would be contrary to Section 2.03, nor shall the Owner Trustee be obligated
to follow any such direction, if given.
Section 4.10. Majority Control. Except as expressly provided herein, any action
that may be taken by the Certificateholders under this Trust Agreement may be
taken by the Certificateholders of Certificates evidencing not less than a
majority of the aggregate Certificate Percentage Interest of the Class
specified, if any. Except as expressly provided herein, any written notice of
the Certificateholders delivered pursuant to this Trust Agreement shall be
effective if signed by the Certificateholders of Certificates evidencing not
less than a majority of the aggregate Certificate Percentage Interest of such
Class at the time of the delivery of such notice.
Section 4.11. Doing Business in Other Jurisdictions. Notwithstanding anything
contained herein to the contrary, neither Wilmington Trust Company nor the Owner
Trustee shall be required to take any action in any jurisdiction other than in
the State of Delaware if the taking of such action will, even after the
appointment of a co-trustee or separate trustee in accordance with Section 9.05
hereof, (i) require the consent or approval or authorization or order of or the
giving of notice to, or the registration with or the taking of any other action
in respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware; (ii) result in any fee, tax or
other governmental charge under the laws of the State of Delaware becoming
payable by Wilmington Trust Company, or (iii) subject Wilmington Trust Company
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by Wilmington Trust Company or the Owner Trustee, as the case may
be, contemplated hereby.
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ARTICLE V
Application of Trust Funds
Section 5.01. Distributions.
(a) On each Payment Date occurring in the months of March, June, September and
December, on any date on which the Trust is terminated pursuant to Section 8.01,
and on each other Payment Date for which the Certificate Paying Agent has
received written notice from the Certificateholders by the Determination Date
relating to such Payment Date requesting funds on deposit in the Distribution
Account to be distributed, the Certificate Paying Agent shall distribute to the
Certificateholders all funds on deposit in the Distribution Account and
available therefor as provided in Section 3.05 of the Indenture. Such amounts
shall be distributed, first, to the Certificateholders of the Class SB
Certificates, in an amount equal to the Class SB Distribution Amount for such
Payment Date and the Class SB Distribution Amount for any previous Payment Date
to the extent not previously paid, and second, to the Certificateholders of the
Class R-I Certificates, any amounts remaining. All distributions made pursuant
to this Section to any Class of Certificates shall be distributed to the
Certificateholders of such Class pro rata based on the respective Percentage
Interests thereof.
(b) In the event that any withholding tax is imposed on the distributions (or
allocations of income) to a Certificateholder, such tax shall reduce the amount
otherwise distributable to such Certificateholder in accordance with this
Section 5.01. The Certificate Paying Agent is hereby authorized and directed to
retain or cause to be retained from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Trust (but such authorization shall not prevent the Owner Trustee
from contesting any such tax in appropriate Proceedings, and withholding payment
of such tax, if permitted by law, pending the outcome of such Proceedings). The
amount of any withholding tax imposed with respect to a Certificateholder shall
be treated as cash distributed to such Certificateholder at the time it is
withheld by the Certificate Paying Agent and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Certificate Paying Agent may in its sole discretion
withhold such amounts in accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the creditors
of the Trust, including the Noteholders.
(d) Allocations of profits, income and losses, as determined for federal income
tax purposes, shall be made among the Classes of Certificates in accordance with
the REMIC Provisions and within each Class of Certificates to the
Certificateholders on a pro rata basis based on the Certificate Percentage
Interests thereof
(e) On each Payment Date, the following amounts in the following order of
priority, from the amounts allocable to the Noteholders and Certificateholders
pursuant to Section 3.05 of the Indenture, shall be deemed to have been
distributed by REMIC I to REMIC II on account of the REMIC I Regular Interests
or shall be withdrawn from the Distribution Account and distributed to the
holders of the Class R-I Certificates, as the case may be:
18
(i) first, (1) to the Holders of REMIC I Regular Interests LTB,
in an amount equal to (A) the Uncertificated Accrued Interest for such
Payment Date, plus (B) any amounts in respect thereof remaining unpaid
from previous Payment Dates; and second, (2) to Holders of REMIC I
Regular Interest LTA in an amount equal to (A) the Uncertificated
Accrued Interest for such Payment Date, plus (B) any amounts in respect
thereof remaining unpaid from previous Payment Dates; and
(ii) to the Holders of REMIC I Regular Interests, in an amount
equal to the remainder of the Available Distribution Amount for such
Distribution Date after the distributions made pursuant to clause (i)
above, allocated in the following order of priority:
(A) to the Holders of REMIC I Regular Interest LTA, until
the Uncertificated Principal Balance of REMIC I Regular Interest
LTA is reduced to zero;
(B) to the Holders of REMIC I Regular Interests LTB
sequentially in the order of their numerical designation, until
the Uncertificated Principal Balance of each successive REMIC I
Regular Interest LTB is reduced to zero; and
(C) any remaining amount to the Holders of the Class R-I
Certificates.
(f) On each Payment Date, the following amounts in the following order of
priority, from the amounts allocable to the Noteholders and Certificateholders
pursuant to Section 3.05 of the Indenture and deemed to have been distributed to
REMIC II from REMIC I pursuant to paragraph (e), shall be deemed to have been
distributed by REMIC II to REMIC III on account of the REMIC II Regular
Interests or shall be withdrawn from the Distribution Account and distributed to
the holders of the Class R-II Certificates, as the case may be:
(i) to the Holders of the LT1, LT2, LT3, LT4, LTA-IO1, LTA-IO2,
LTA-IO3, LTA-IO4 and LTA-IO5 REMIC II Regular Interests, in an amount
equal to (A) the Accrued Certificate Interest on such REMIC II Regular
Interests for such Payment Date, plus (B) any amounts in respect thereof
remaining unpaid from previous Payment Dates; and
(ii) on each Payment Date, to the Holders of the LT1, LT2, LT3
and LT4 REMIC II Regular Interests, in an amount equal to the remainder
of such amount after the distributions made pursuant to clause (i)
above, allocated as follows (except as provided below):
(A) first, to the Holders of the Class LT2, LT3 and LT4
REMIC II Regular Interests, respectively, the Class LT2 Principal
Distribution Amount, the Class LT3 Principal Distribution Amount
and Class LT4 Principal Distribution Amount from such remainder;
(B) second, to the Holders of the Class LT1 REMIC II
Regular Interest, any remaining portion of such remainder, until
the principal balance of such LT1 REMIC II Regular Interest shall
have been reduced to zero;
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(C) third, any remaining portion of such remainder, to the
Holders of the Class LT2, LT3 and LT4 REMIC II Regular Interests
pro-rata according to their respective principal balances as
reduced by the distributions made pursuant to clause (A), until
the principal balances of such REMIC II Regular Interests shall
have been reduced to zero; and
(D) fourth, any remaining portion of such remainder, to
the Holders of the Class R-II Certificates.
(g) On each Payment Date, the amounts allocable to the Noteholders and
Certificateholders pursuant to Section 3.05 of the Indenture and deemed to have
been distributed to REMIC III from REMIC II pursuant to paragraph (f), shall be
deemed to have been distributed by REMIC III to the holders of the REMIC III
Regular Interests on account of the REMIC II Regular Interests or shall be
withdrawn from the Distribution Account and distributed to the holders of the
Class R-III Certificates, as the case may be in accord with the provisions
relating thereto in Section 3.05 of the Indenture and in this Trust Agreement.
(3) Payments from the related Hedge Agreement to the Holders of
the Class A-1 Notes or Class A-2 Notes, as applicable, will be from the Holder
of the Class SB Certificates which is entitled and from amounts received under
the Hedge Agreements. The rights of the Holder of the Class SB Certificates to
payments from the Hedge Agreements shall be outside and apart from its rights
under the REMIC III Regular Interest SB IO and REMIC III Regular Interest SB PO,
which will not be a part of their ownership of the REMIC II Regular Interests.
Section 5.02. Method of Payment. Subject to Section 8.01(c), distributions
required to be made to Certificateholders on any Payment Date as provided in
Section 5.01 shall be made to each Certificateholder of record on the preceding
Record Date by wire transfer, in immediately available funds, to the account of
each Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior to
such Payment Date or, if not, by check or money order mailed to such
Certificateholder at the address of such Certificateholder appearing in the
Certificate Register.
Section 5.03. Signature on Returns. The REMIC Administrator, as agent for the
Owner Trustee, shall sign on behalf of the Trust the tax returns of the REMICs.
The Owner Trustee shall give the REMIC Administrator all such powers of attorney
as are needed to enable the REMIC Administrator to prepare and sign such tax
returns. In the event that approval from the applicable District Director of the
Internal Revenue Service for the REMIC Administrator to sign the tax returns is
not forthcoming following application, the REMIC Administrator shall prepare and
the Owner Trustee shall sign the tax returns for the REMICs.
Section 5.04. Statements to Certificateholders. On each Payment Date, the
Certificate Paying Agent shall make available to each Certificateholder the
statement or statements provided to the Owner Trustee and the Certificate Paying
Agent by the Servicer pursuant to Section 4.01 of the Servicing Agreement with
respect to such Payment Date.
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ARTICLE VI
Concerning the Owner Trustee
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts, but only upon the terms of this Trust Agreement. The Owner Trustee
and the Certificate Paying Agent also agree to disburse all moneys actually
received by it constituting part of the Trust Estate upon the terms of this
Trust Agreement and the other Basic Documents. The Owner Trustee shall not be
answerable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct, negligence or bad
faith or negligent failure to act or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.03 expressly made by the Owner
Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) no provision of this Trust Agreement or any other Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights, duties or powers
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it; (b) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(c) the Owner Trustee shall not be responsible for or in respect of the validity
or sufficiency of this Trust Agreement or for the due execution hereof by the
Depositor for the form, character, genuineness, sufficiency, value or validity
of any of the Trust Estate, or for or in respect of the validity or sufficiency
of the Basic Documents, the Notes, the Certificates, other than the certificate
of authentication on the Certificates, if executed by the Owner Trustee and the
Owner Trustee shall in no event assume or incur any liability, duty, or
obligation to any Noteholder or to any Certificateholder, other than as
expressly provided for herein or in the other Basic Documents;
(d) the execution, delivery, authentication and performance by the Owner Trustee
of this Trust Agreement will not require the authorization, consent or approval
of, the giving of notice to, the filing or registration with, or the taking of
any other action with respect to, any governmental authority or agency;
(e) the Owner Trustee shall not be liable for the default or misconduct of the
Depositor, Indenture Trustee or the Servicer under any of the Basic Documents or
otherwise and the Owner Trustee shall have no obligation or liability to perform
the obligations of the Trust under this Trust Agreement or the other Basic
Documents that are required to be performed by the Indenture Trustee under the
Indenture or the Sellers under the Purchase Agreement; and
(f) the Owner Trustee shall be under no obligation to exercise any of the rights
or powers vested in it or duties imposed by this Trust Agreement, or to
institute, conduct or defend any litigation under this Trust Agreement or
otherwise or in relation to this Trust Agreement or any other Basic Document, at
the request, order or direction of any of the Certificateholders, unless such
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Certificateholders have offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Trust Agreement or in any
other Basic Document shall not be construed as a duty, and the Owner Trustee
shall not be answerable for other than its negligence, bad faith or willful
misconduct in the performance of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish to the
Securityholders promptly upon receipt of a written reasonable request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Trust under the
Basic Documents.
Section 6.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in good
standing under the laws of the State of Delaware. It has all requisite corporate
power and authority to execute, deliver and perform its obligations under this
Trust Agreement;
(b) It has taken all corporate action necessary to authorize the execution and
delivery by it of this Trust Agreement, and this Trust Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust Agreement, nor
the consummation by it of the transactions contemplated hereby nor compliance by
it with any of the terms or provisions hereof will contravene any federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound;
(d) This Trust Agreement, assuming due authorization, execution and delivery by
the Owner Trustee and the Depositor, constitutes a valid, legal and binding
obligation of the Owner Trustee, enforceable against it in accordance with the
terms hereof subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally and to general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(e) The Owner Trustee is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that would materially
and adversely affect the condition (financial or other) or operations of the
Owner Trustee or its properties or might have consequences that would materially
adversely affect its performance hereunder; and
22
(f) No litigation is pending or, to the best of the Owner Trustee's knowledge,
threatened against the Owner Trustee which would prohibit its entering into this
Trust Agreement or performing its obligations under this Trust Agreement.
Section 6.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond, or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties. The Owner
Trustee may accept a certified copy of a resolution of the board of directors or
other governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by the
treasurer or other authorized officers of the relevant party, as to such fact or
matter and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in the
performance of its duties and obligations under this Trust Agreement or the
other Basic Documents, the Owner Trustee (i) may act directly or through its
agents, attorneys, custodians or nominees (including persons acting under a
power of attorney) pursuant to agreements entered into with any of them, and the
Owner Trustee shall not be liable for the conduct or misconduct of such agents,
attorneys, custodians or nominees (including persons acting under a power of
attorney) if such persons have been selected by the Owner Trustee with
reasonable care, and (ii) may consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it at the
expense of the Trust. The Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the opinion or advice
of any such counsel, accountants or other such Persons and not contrary to this
Trust Agreement or any other Basic Document.
Section 6.05. Not Acting in Individual Capacity. Except as provided in this
Article VI, in accepting the trusts hereby created Wilmington Trust Company acts
solely as Owner Trustee hereunder and not in its individual capacity, and all
Persons having any claim against the Owner Trustee by reason of the transactions
contemplated by this Trust Agreement or any other Basic Document shall look only
to the Trust Estate for payment or satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates or Related Documents.
The recitals contained herein and in the Certificates (other than the signatures
of the Owner Trustee on the Certificates) shall be taken as the statements of
the Depositor, and the Owner Trustee assumes no responsibility for the
correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Trust Agreement, of any other Basic Document or
of the Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents. The Owner Trustee shall
at no time have any responsibility or liability with respect to the sufficiency
23
of the Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Trust Agreement or the Noteholders under the
Indenture, including, the compliance by the Depositor or the Seller with any
warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation, or any action
of the Certificate Paying Agent, the Certificate Registrar or the Indenture
Trustee taken in the name of the Owner Trustee.
Section 6.07. Owner Trustee May Own Certificates and Notes. The Owner Trustee in
its individual or any other capacity may become the owner or pledgee of
Certificates or Notes and may deal with the Depositor, the Sellers, the
Certificate Paying Agent, the Certificate Registrar and the Indenture Trustee in
transactions with the same rights as it would have if it were not Owner Trustee.
ARTICLE VII
Compensation of Owner Trustee
Section 7.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall receive
as compensation for its services hereunder such fees as have been separately
agreed upon before the date hereof in accordance with Section 6.06 of the
Servicing Agreement, and the Owner Trustee shall be reimbursed for its
reasonable expenses hereunder and under the other Basic Documents, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may reasonably employ
in connection with the exercise and performance of its rights and its duties
hereunder and under the other Basic Documents which shall be payable by the
Servicer pursuant to Section 3.09 of the Servicing Agreement.
Section 7.02. Indemnification. The Certificateholder of the majority of the
Percentage Interest of the Class SB Certificates shall indemnify, defend and
hold harmless the Owner Trustee and its successors, assigns, agents and servants
(collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of this Trust Agreement, the other Basic Documents, the Trust
Estate, the administration of the Trust Estate or the action or inaction of the
Owner Trustee hereunder; provided, that:
(a) the Certificateholder of the majority of the Percentage Interest of the
Class SB Certificates shall not be liable for or required to indemnify an
Indemnified Party from and against Expenses arising or resulting from the Owner
Trustee's willful misconduct, negligence or bad faith or as a result of any
inaccuracy of a representation or warranty contained in Section 6.03 expressly
made by the Owner Trustee;
(b) with respect to any such claim, the Indemnified Party shall have given the
Certificateholder of the majority of the Percentage Interest of the Class SB
Certificates written notice thereof promptly after the Indemnified Party shall
have actual knowledge thereof;
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(c) while maintaining control over its own defense, the Certificateholder of the
majority of the Percentage Interest of the Class SB Certificates shall consult
with the Indemnified Party in preparing such defense; and
(d) notwithstanding anything in this Trust Agreement to the contrary, the
Certificateholder of the majority of the Percentage Interest of the Class SB
Certificates shall not be liable for settlement of any claim by an Indemnified
Party entered into without the prior consent of the Certificateholder of the
majority of the Percentage Interest of the Class SB Certificates, which consent
shall not be unreasonably withheld.
The indemnities contained in this Section shall survive the resignation
or termination of the Owner Trustee or the termination of this Trust Agreement.
In the event of any Proceeding for which indemnity may be sought pursuant to
this Section 7.02, the Owner Trustee's choice of legal counsel, if other than
the legal counsel retained by the Owner Trustee in connection with the execution
and delivery of this Trust Agreement, shall be subject to the approval of the
Certificateholder of the majority of the Percentage Interest of the Class SB
Certificates, which approval shall not be unreasonably withheld. In addition,
upon written notice to the Owner Trustee and with the consent of the Owner
Trustee, which consent shall not be unreasonably withheld, the Certificateholder
of the majority of the Percentage Interest of the Class SB Certificates shall
have the right to assume the defense of any Proceeding against the Owner
Trustee.
ARTICLE VIII
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement.
(a) This Trust Agreement (other than this Article VIII) and the Trust shall
terminate and be of no further force or effect upon the final distribution of
all moneys or other property or proceeds of the Trust Estate in accordance with
the terms of the Indenture and this Trust Agreement. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder shall not
(i) operate to terminate this Trust Agreement or the Trust, (ii) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any Proceeding in any court for a partition or winding up of all or any
part of the Trust or the Trust Estate or (iii) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date on which
Certificateholders shall surrender their Certificates to the Certificate Paying
Agent for payment of the final distribution thereon and cancellation thereof,
shall be given by the Certificate Paying Agent by letter to the
Certificateholders and the Enhancer mailed within five Business Days of receipt
of notice of such termination from the Owner Trustee, stating (i) the Payment
Date upon or with respect to which final payment of the Certificates shall be
made upon presentation and surrender of the Certificates at the office of the
Certificate Paying Agent therein designated, (ii) the amount of any such final
25
payment and (iii) that the Record Date otherwise applicable to such Payment Date
is not applicable, payments being made only upon presentation and surrender of
the Certificates at the office of the Certificate Paying Agent therein
specified. The Certificate Paying Agent shall give such notice to the Owner
Trustee and the Certificate Registrar at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Certificate Paying Agent shall cause to be distributed to Certificateholders
amounts distributable on such Payment Date pursuant to Section 5.01.
In the event that all of the Certificateholders shall not have
surrendered their Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Certificate Paying Agent
shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. Subject to applicable laws with respect to escheat of
funds, if within one year following the Payment Date on which final payment of
the Certificates was to have been made pursuant to Section 3.10, all the
Certificates shall not have been surrendered for cancellation, the Certificate
Paying Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Trust Agreement. Any
funds remaining in the Distribution Account after exhaustion of such remedies
shall be distributed by the Certificate Paying Agent to the Certificateholder of
the majority of the Percentage Interest of the Certificates of the Class with
respect to which such amounts are due.
(d) Upon the winding up of the Trust and its termination, the Owner Trustee
shall cause the Certificate of Trust to be cancelled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810(c) of the Statutory Trust Statute.
Section 8.02. Additional Termination Requirements.
(a) Each REMIC shall be terminated in accordance with the following
additional requirements including upon the exercise by the Servicer of
an optional redemption of the Notes pursuant to Section 8.08 of the
Servicing Agreement, unless the Owner Trustee, the REMIC Administrator
and the Servicer have received an Opinion of Counsel (which Opinion of
Counsel shall not be an expense of the Owner Trustee) to the effect that
the failure of any REMIC to comply with the requirements of this Section
8.02 will not (i) result in the imposition on the Trust Estate of taxes
on "prohibited transactions," as described in Section 860F of the Code,
or (ii) cause any of the REMICs to fail to qualify as a REMIC at any
time that any Certificate is outstanding:
(i) The Servicer shall establish a 90-day liquidation period for such REMIC
and specify the first day of such period in a statement, which the
Indenture Trustee shall attach to the Trust Estate's final Tax Return
pursuant to Treasury regulations Section 1.860F-1. The Servicer also
shall satisfy all of the requirements of a qualified liquidation for a
REMIC under Section 860F of the Code and regulations thereunder;
26
(ii) The Servicer shall notify the Owner Trustee and the Indenture Trustee at
the commencement of such 90-day liquidation period and, at or prior to
the time of making of the final payment on the Certificates, the Owner
Trustee shall sell or otherwise dispose of all of the remaining assets
of the Trust Estate in accordance with the terms hereof; and
(iii) If the Servicer is exercising its right to purchase the assets of the
Trust Estate, the Servicer shall, during the 90-day liquidation period
and at or prior to the Final Payment Date, purchase all of the assets of
the Trust Estate for cash.
(b) Each Holder of a Security and the Owner Trustee hereby irrevocably
approves and appoints the Servicer as its attorney-in-fact to adopt a
plan of complete liquidation for such REMIC at the expense of the Trust
Estate in accordance with the terms and conditions of this Agreement.
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times be a corporation satisfying the provisions of Section 3807(a)
of the Statutory Trust Statute; authorized to exercise corporate trust powers;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authorities; and having (or
having a parent that has) long-term debt obligations with a rating of at least A
by Moody's or Standard & Poor's. If such corporation shall publish reports of
condition at least annually pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.01, the Owner
Trustee shall resign immediately in the manner and with the effect specified in
Section 9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at any time
resign and be discharged from the trusts hereby created by giving 30 days' prior
written notice thereof to the Enhancer, the Indenture Trustee and the Depositor.
Upon receiving such notice of resignation, the Indenture Trustee shall promptly
appoint a successor Owner Trustee with the consent of the Enhancer, which
consent shall not be unreasonably withheld, by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Owner Trustee
and one copy to the successor Owner Trustee. If no successor Owner Trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may petition
any court of competent jurisdiction for the appointment of a successor Owner
Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.01 and shall fail to resign after
written request therefor by the Indenture Trustee, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
27
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Indenture Trustee may, and, at the
direction of the Enhancer, shall, remove the Owner Trustee. If the Indenture
Trustee shall remove the Owner Trustee under the authority of the immediately
preceding sentence, the Indenture Trustee shall promptly appoint a successor
Owner Trustee acceptable to the Enhancer by written instrument, in duplicate,
one copy of which instrument shall be delivered to the outgoing Owner Trustee so
removed and one copy to the successor Owner Trustee, and shall pay all fees owed
to the outgoing Owner Trustee. If the Indenture Trustee is unable to appoint a
successor Owner Trustee within 60 days after any such direction, the Indenture
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee.
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee appointed
pursuant to Section 9.02 shall execute, acknowledge and deliver to the Indenture
Trustee and to its predecessor Owner Trustee an instrument accepting such
appointment under this Trust Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective, and such successor
Owner Trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
under this Trust Agreement, with like effect as if originally named as Owner
Trustee. The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Trust Agreement; and the predecessor Owner Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, the Indenture Trustee shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies and the Enhancer. If the Indenture Trustee shall fail to mail such
notice within 10 days after acceptance of such appointment by the successor
Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed
at the expense of the Indenture Trustee.
Section 9.04. Merger or Consolidation of Owner Trustee. Any Person into which
the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
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Section 9.05. Appointment of Co-Trustee or Separate Trustee. Notwithstanding any
other provisions of this Trust Agreement, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Estate may at the time be located, the Owner Trustee shall have the power
and shall execute and deliver all instruments to appoint one or more Persons to
act as co-trustee, jointly with the Owner Trustee, or as separate trustee or
trustees, of all or any part of the Trust Estate, and to vest in such Person, in
such capacity, such title to the Trust or any part thereof and, subject to the
other provisions of this Section, such powers, duties, obligations, rights and
trusts as the Owner Trustee may consider necessary or desirable. No co-trustee
or separate trustee under this Trust Agreement shall be required to meet the
terms of eligibility as a successor Owner Trustee pursuant to Section 9.01 and
no notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed upon the
Owner Trustee shall be conferred upon and exercised or performed by the Owner
Trustee and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act separately
without the Owner Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Estate or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Owner Trustee;
(b) No trustee under this Trust Agreement shall be personally liable by reason
of any act or omission of any other trustee under this Trust Agreement; and
(c) The Owner Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Trust Agreement and the
conditions of this Article IX. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Trust Agreement, specifically including every provision of this Trust
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Trust Agreement on its behalf and in its name. If any separate trustee or
29
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE X
Miscellaneous
Section 10.01. Amendments.
(a) This Trust Agreement may be amended from time to time by the parties hereto
as specified in this Section 10.01, provided that any such amendment, except as
provided in paragraph (e) below, shall be accompanied by an Opinion of Counsel
addressed to the Owner Trustee and the Enhancer to the effect that such
amendment (i) complies with the provisions of this Section and (ii) will not
cause the Trust to be subject to any tax or cause any of the REMICs to fail to
qualify as a REMIC for federal income tax purposes.
(b) If the purpose of any such amendment (as detailed therein) is to correct any
mistake, eliminate any inconsistency, cure any ambiguity or deal with any matter
not covered in this Trust Agreement (i.e., to give effect to the intent of the
parties), it shall not be necessary to obtain the consent of any
Certificateholders, but the Owner Trustee shall be furnished with (i) a letter
from each Rating Agency that the amendment will not result in a Rating Event
(determined without regard to the Policy) and (ii) an Opinion of Counsel to the
effect that such action will not adversely affect in any material respect the
interests of any Certificateholder and the Enhancer shall be obtained.
(c) If the purpose of the amendment is to prevent the imposition of any federal
or state taxes at any time that any Security is outstanding (i.e., technical in
nature), it shall not be necessary to obtain the consent of any
Certificateholder, but the Owner Trustee shall be furnished with an Opinion of
Counsel that such amendment is necessary or helpful to prevent the imposition of
such taxes and is not materially adverse to any Certificateholder and the
Enhancer shall be obtained.
(d) If the purpose of the amendment is to add or eliminate or change any
provision of the Trust Agreement other than as contemplated in (b) and (c)
above, the amendment shall require (i) the consent of the Enhancer and an
Opinion of Counsel to the effect that such action will not adversely affect in
any material respect the interests of any Certificateholder and (ii) either (A)
a letter from each Rating Agency that such amendment will not cause a Rating
Event (determined without regard to the Policy) or (B) the consent of
Certificateholders of each Class of Certificates evidencing a majority of the
aggregate Certificate Percentage Interest and the Indenture Trustee; provided,
however, that no such amendment shall reduce in any manner the amount of, or
delay the timing of, payments received that are required to be distributed on
any Certificate without the consent of each Certificateholder affected thereby
and the Enhancer, or reduce the aforesaid percentage of Certificates the
Certificateholders of which are required to consent to any such amendment,
without the consent of the Certificateholders of all such Certificates then
outstanding.
30
(e) No amendment of this Trust Agreement may provide for the holding of any of
the Certificates in book-entry form.
(f) If the purpose of any such amendment is to provide for the issuance of
additional Certificates representing an interest in the Trust, it shall not be
necessary to obtain the consent of any Certificateholder, but the Owner Trustee
shall be furnished with (i) an Opinion of Counsel to the effect that such action
will not adversely affect in any material respect the interests of any
Certificateholders and (B) a letter from each Rating Agency to the effect that
such amendment will not cause a Rating Event, if determined without regard to
the Policy, and the consent of the Enhancer shall be obtained.
(g) Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Indenture Trustee, the Enhancer and each
of the Rating Agencies. It shall not be necessary for the consent of
Certificateholders or the Indenture Trustee pursuant to this Section 10.01 to
approve the particular form of any proposed amendment or consent, but it shall
be sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of Certificateholders provided
for in this Trust Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any agreement to which
the Trust is a party, other than this Trust Agreement, the Owner Trustee shall
be entitled to receive and conclusively rely upon an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the documents subject
to such amendment and that all conditions precedent in the Basic Documents for
the execution and delivery thereof by the Trust or the Owner Trustee, as the
case may be, have been satisfied.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
Section 10.02. No Legal Title to Trust Estate. The Certificateholders shall not
have legal title to any part of the Trust Estate. The Certificateholders shall
be entitled to receive distributions with respect to their undivided beneficial
interest therein only in accordance with Articles V and VIII. No transfer, by
operation of law or otherwise, of any right, title or interest of the
Certificateholders to and in their ownership interest in the Trust Estate shall
operate to terminate this Trust Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Estate.
Section 10.03. Limitations on Rights of Others. Except for Section 2.07, the
provisions of this Trust Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Certificateholders, the Enhancer and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Trust Agreement (other than Section 2.07), whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Trust Estate or under or in respect of this Trust
Agreement or any covenants, conditions or provisions contained herein.
31
Section 10.04. Notices.
(a) Unless otherwise expressly specified or permitted by the terms hereof, all
notices shall be in writing and shall be deemed given upon receipt: if to the
Owner Trustee, addressed to its Corporate Trust Office; if to the Certificate
Paying Agent, addressed to Xxxxx Xxxxx Xxxx, X.X., X.X. Xxx 00, Xxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Services, GMACM Home Equity Loan
Trust 2005-HE2 Trust, with a copy to the Corporate Trust Office of the Indenture
Trustee, if to the Depositor, addressed to Residential Asset Mortgage Products,
Inc., 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: President, Re: GMACM Home Equity Loan Trust 2005-HE2; if to the
Enhancer, Financial Guaranty Insurance Company, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (GMACM Home Equity Loan Trust 2005-HE2); if to the Rating
Agencies, addressed to Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, to Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Structured Finance Department - MBS and to Dominion Bond Rating
Service, Inc., 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; or, as to each
of the foregoing Persons, at such other address as shall be designated by such
Person in a written notice to each of the other foregoing Persons.
(b) Any notice required or permitted to be given to a Certificateholder shall be
given by first-Class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register. Any notice so mailed
within the time prescribed in this Trust Agreement to a Certificateholder shall
be conclusively presumed to have been duly given, whether or not such
Certificateholder receives such notice.
(c) A copy of any notice delivered to the Owner Trustee or the Trust shall also
be delivered to the Depositor.
Section 10.05. Severability. Any provision of this Trust Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.06. Separate Counterparts. This Trust Agreement may be executed by
the parties hereto in any number of counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 10.07. Successors and Assigns. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, each of the Enhancer, the Depositor, the Owner Trustee and its
successors and each Certificateholder and its successors and permitted assigns,
all as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a Certificateholder shall bind the successors and
assigns of such Certificateholder.
32
Section 10.08. No Petition. The Owner Trustee, by entering into this Trust
Agreement, and each Certificateholder, by accepting a Certificate, hereby
covenant and agree that they will not at any time institute against the
Depositor or the Trust, or join in any institution against the Depositor or the
Trust of, any bankruptcy Proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations to the
Certificates, the Notes, this Trust Agreement or any of the other Basic
Documents.
Section 10.09. No Recourse. Each Certificateholder, by accepting a Certificate,
acknowledges that such Certificateholder's Certificate represents a beneficial
interest in the Trust only and does not represent an interest in or obligation
of the Depositor, the Sellers, the Owner Trustee, the Indenture Trustee or any
Affiliate thereof, and that no recourse may be had against such Persons or their
assets, except as may be expressly set forth or contemplated in the
Certificates, this Trust Agreement or the other Basic Documents.
Section 10.10. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. Integration. This Trust Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understanding pertaining thereto.
Section 10.13. Rights of Enhancer to Exercise Rights of Certificateholders. By
accepting its Certificate, each Certificateholder agrees that unless an Enhancer
Default exists, the Enhancer shall have the right to exercise all rights of the
Certificateholders under this Trust Agreement without any further consent of the
Certificateholders. Nothing in this Section, however, shall alter or modify in
any way, the fiduciary obligations of the Owner Trustee to the
Certificateholders pursuant to this Trust Agreement, or create any fiduciary
obligation of the Owner Trustee to the Enhancer. The Enhancer shall be an
express third party beneficiary of this Trust Agreement.
33
IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Depositor
By:
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee,
except with respect to the
representations and warranties
contained in Section 6.03 hereof
By:
Name:
Title:
Acknowledged and Agreed:
XXXXX FARGO BANK, N.A.
as Indenture Trustee, Certificate Registrar
and Certificate Paying Agent
By:
Name:
Title:
34
EXHIBIT A
FORM OF CLASS SB CERTIFICATE
THIS CLASS SB CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES AS
DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THIS CLASS SB CERTIFICATE IS ISSUED IN THE PERCENTAGE INTEREST SET FORTH BELOW.
THE CERTIFICATEHOLDER OF THIS CERTIFICATE HEREBY CONSENTS TO ANY CHANGE IN ITS
PERCENTAGE INTEREST IN ACCORDANCE WITH SUCH SECTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS NOTE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE "CODE").
THIS CLASS SB CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
STATE LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND SUCH STATE LAWS AND IS TRANSFERRED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 3.05 OF THE AGREEMENT.
NO TRANSFER OF THIS CLASS SB CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER, IN THE FORM OF
EXHIBIT G TO THE AGREEMENT, FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO
THE PROHIBITED TRANSACTION RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY
REQUIREMENTS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ANY PERSON ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF ANY SUCH PLAN
OR ANY PERSON USING "PLAN ASSETS," WITHIN THE MEANING OF THE DEPARTMENT OF LABOR
REGULATIONS SECTION 2510.3-101, TO ACQUIRE THIS CLASS SB CERTIFICATE (EACH, A
"PLAN INVESTOR"), OR (ii) IF THIS CLASS SB CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PLAN INVESTOR, AN OPINION OF COUNSEL ACCEPTABLE TO
AND IN FORM AND SUBSTANCE SATISFACTORY TO THE DEPOSITOR, THE OWNER TRUSTEE, THE
SERVICER AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF THIS CLASS SB CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL
NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA
OR SECTION 4975 OF THE CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT
ENACTMENTS) AND WILL NOT SUBJECT THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER
OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THE TRANSFEREE OF THIS CLASS SB CERTIFICATE SHALL BE SUBJECT TO UNITED STATES
FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A
CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A
U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW.
THIS CLASS SB CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
SELLERS, THE DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE
AGREEMENT OR THE OTHER BASIC DOCUMENTS.
Class: SB
Certificate No.
Percentage Interest: 100%
Cut-Off Date: June 1, 2005
Date of Trust Agreement: June 29, 2005
First Payment Date: July 25, 2005
Final Payment Date: November 25, 2035
GMACM HOME EQUITY LOAN-BACKED CERTIFICATE, SERIES 2005-HE2
evidencing a fractional undivided interest in GMACM Home Equity
Loan Trust 2005-HE2 (the "Issuer"), the property of which
consists primarily of the Mortgage Loans.
This Class SB Certificate is payable solely from the assets of the Trust
Estate, and does not represent an obligation of or interest in the Depositor,
the Sellers, the Servicer, the Indenture Trustee or the Owner Trustee or any of
their Affiliates. This Class SB Certificate is not guaranteed or insured by any
governmental agency or instrumentality or by the Depositor, the Sellers, the
Servicer, the Indenture Trustee or the Owner Trustee or any of their affiliates.
None of the Depositor, the Sellers, the Servicer, the Indenture Trustee or the
Owner Trustee or any of their Affiliates will have any obligation with respect
to any certificate or other obligation secured by or payable from payments on
the Certificates.
This certifies that GMAC Mortgage Corporation is the registered owner of
the Certificate Percentage Interest evidenced by this Class SB Certificate (as
set forth on the face hereof) in certain distributions with respect to the Trust
Estate, consisting primarily of the Mortgage Loans, created by Residential Asset
Mortgage Products, Inc. (the "Depositor"). The Trust (as defined herein) was
created pursuant to a trust agreement dated as of June 29, 2005 (as amended and
supplemented from time to time, the "Agreement"), between the Depositor and
Wilmington Trust Company, as owner trustee (the "Owner Trustee," which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto
in Appendix A to the indenture dated as of June 29, 2005, between the Trust and
the Indenture Trustee. This Class SB Certificate is issued under and is subject
to the terms, provisions and conditions of the Agreement, to which Agreement the
Certificateholder of this Class SB Certificate by virtue of the acceptance
hereof assents and by which such Certificateholder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each March, June, September and December or, if such 25th day is
not a Business Day, the Business Day immediately following (the "Payment Date"),
commencing on the first Payment Date specified above, to the Person in whose
name this Class SB Certificate is registered at the close of business on the
last day (or if such last day is not a Business Day, the Business Day
immediately preceding such last day) of the month immediately preceding the
month of such distribution (the "Record Date"), in an amount equal to the pro
rata portion evidenced by this Class SB Certificate (based on the Percentage
Interest stated on the face hereon) of the amount, if any, required to be
distributed to Certificateholders of Class SB Certificates on such Payment Date.
Distributions on this Class SB Certificate will be made as provided in the
Agreement by the Certificate Paying Agent by wire transfer or check mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Class SB Certificate or the making of any
notation hereon. Pursuant to the Agreement, the Trust has issued three Classes
of Certificates, designated as the Class SB Certificates, the Class R-I
Certificates and the Class R-II Certificates.
Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Class SB Certificate will be made after
due notice by the Certificate Paying Agent of the pendency of such distribution
and only upon presentation and surrender of this Class SB Certificate at the
Corporate Trust Office of the Certificate Registrar.
No transfer of this Class SB Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "Securities Act"), and any applicable state securities
laws or is made in accordance the Securities Act and such state laws. In the
event that such a transfer is to be made, (i) the Certificate Registrar or the
Depositor may require an Opinion of Counsel acceptable to and in form and
substance satisfactory to the Certificate Registrar and the Depositor that such
transfer is exempt (describing the applicable exemption and the basis therefor)
from or is being made pursuant to the registration requirements of the
Securities Act, and of any applicable statute of any state and (ii) the
transferee shall execute an investment letter in the form described in the
Agreement and (iii) the Certificate Registrar shall require the transferee to
execute an investment letter and a Certificate of Non-Foreign Status in the form
described by the Agreement (or if a Certificate of Non-Foreign Status is not
provided, an Opinion of Counsel as described in the Agreement), which investment
letter and certificate or Opinion of Counsel shall not be at the expense of the
Trust, the Owner Trustee, the Certificate Registrar or the Depositor. The
Certificateholder hereof desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trust, the Owner Trustee, the Depositor, the Servicer
and the Certificate Registrar against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws. In connection with any such transfer, the Certificate Registrar
(unless otherwise directed by the Depositor) will also require either (i) a
representation letter, in the form of Exhibit G to the Agreement, stating that
the transferee is not an employee benefit or other plan subject to the
prohibited transaction restrictions or the fiduciary responsibility requirements
of ERISA or Section 4975 of the Code (a "Plan"), any person acting, directly or
indirectly, on behalf of any such Plan or any Person using the "plan assets,"
within the meaning of the Department of Labor Regulations Section 2510.3-101, to
effect such acquisition (collectively, a "Plan Investor") or (ii) if such
transferee is a Plan Investor, an Opinion of Counsel acceptable to and in form
and substance satisfactory to the Depositor, the Owner Trustee, the Servicer and
the Certificate Registrar, to the effect that the purchase or holding of such
Class SB Certificate is permissible under applicable law, will not constitute or
result in a prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code (or comparable provisions of any subsequent enactments) and will not
subject the Depositor, the Owner Trustee, the Servicer or the Certificate
Registrar to any obligation or liability (including obligations or liabilities
under Section 406 of ERISA or Section 4975 of the Code) in addition to those
undertaken in the Agreement.
This Class SB Certificate is one of a duly authorized issue of
Certificates designated as GMACM Home Equity Loan-Backed Certificates of the
Series specified hereon (the "Certificates").
The Certificateholder of this Class SB Certificate, by its acceptance
hereof, agrees that it will look solely to the funds on deposit in the
Distribution Account that have been released from the Lien of the Indenture for
payment hereunder and that neither the Owner Trustee in its individual capacity
nor the Depositor is personally liable to the Certificateholders for any amount
payable under this Class SB Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
The Certificateholder of this Class SB Certificate acknowledges and
agrees that its rights to receive distributions in respect of this Class SB
Certificate are subordinated to the rights of the Noteholders as described in
the Indenture.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, or join in any institution against the Depositor or the Trust of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Agreement or any of the other Basic Documents.
The Agreement permits the amendment thereof as specified below, provided
that any amendment be accompanied by the consent of the Enhancer and an Opinion
of Counsel to the Owner Trustee to the effect that such amendment complies with
the provisions of the Agreement and will not cause the Trust to be subject to an
entity level tax. If the purpose of any such amendment is to correct any
mistake, eliminate any inconsistency, cure any ambiguity or deal with any matter
not covered, it shall not be necessary to obtain the consent of any
Certificateholder, but the Owner Trustee shall be furnished with a letter from
each Rating Agency to the effect that such amendment will not cause a Rating
Event determined without regard to the Policy, and the consent of the Enhancer
shall be obtained. If the purpose of any such amendment is to prevent the
imposition of any federal or state taxes at any time that any Security is
Outstanding, it shall not be necessary to obtain the consent of the any
Certificateholder, but the Owner Trustee shall be furnished with an Opinion of
Counsel that such amendment is necessary or helpful to prevent the imposition of
such taxes and is not materially adverse to any Certificateholder and the
consent of the Enhancer shall be obtained. If the purpose of the amendment is to
add or eliminate or change any provision of the Agreement, other than as
specified in the preceding two sentences, the amendment shall require either (a)
a letter from each Rating Agency to the effect that such amendment will not
cause a Rating Event (determined without regard to the Policy or (b) the consent
of Certificateholders of a majority of the Percentage Interests of the
Certificates and the Indenture Trustee; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the time of,
payments received that are required to be distributed on any Certificate without
the consent of all Certificateholders affected thereby and the Enhancer, or (ii)
reduce the aforesaid percentage of Certificates the Certificateholders of which
are required to consent to any such amendment without the consent of the
Certificateholders of all such Certificates then outstanding.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Class SB Certificate is registerable in the
Certificate Register upon surrender of this Class SB Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, accompanied by a written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by the Certificateholder hereof or
such Certificateholder's attorney duly authorized in writing, and thereupon one
or more new Certificates of authorized denominations evidencing the same Class
and aggregate Percentage Interest will be issued to the designated transferee.
The initial Certificate Registrar appointed under the Agreement is the Owner
Trustee.
Except as provided in the Agreement, the Class SB Certificates are
issuable only in minimum denominations of a 10.0000% Percentage Interest and in
integral multiples of a 0.0001% Percentage Interest in excess thereof. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class SB Certificates are exchangeable for new Class SB Certificates of
authorized denominations, as requested by the Certificateholder surrendering the
same. This Class SB Certificate is issued in the Percentage Interest above.
No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or governmental charge payable in
connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or
the Certificate Registrar may treat the Person in whose name this Class SB
Certificate is registered as the owner hereof for all purposes, and none of the
Owner Trustee, the Certificate Paying Agent, the Certificate Registrar or any
such agent shall be affected by any notice to the contrary.
This Class SB Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
The obligations created by the Agreement in respect of this Class SB
Certificate and the Trust created thereby shall terminate upon the final
distribution of all moneys or other property or proceeds of the Trust Estate in
accordance with the terms of the Indenture and the Agreement.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, or an authenticating agent by
manual signature, this Class SB Certificate shall not be entitled to any benefit
under the Agreement or be valid for any purpose.
[Signature Page Follows]
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Class SB Certificate to be duly
executed.
GMACM HOME EQUITY LOAN TRUST 2005-HE2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
Dated: June 29, 2005 By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:
Authorized Signatory
or ,
as Authenticating Agent of the Trust
By:
Authorized Signatory
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer unto
____________________________________________________________________________
(name and address of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ___________________________________________________
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:_____________
________________________________ */
Signature Guaranteed:
___________________________ */
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available
funds to__________________ for the account of ___________________, account
number _________________, or, if mailed by check, to __________________.
Applicable statements should be mailed to ___________________.
________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT B
CERTIFICATE OF TRUST
OF
GMACM HOME EQUITY LOAN TRUST 2005-HE2
THE UNDERSIGNED, Wilmington Trust Company, as owner trustee (the
"Trustee"), for the purpose of forming a statutory trust does hereby certify as
follows:
1. The name of the statutory trust is:
GMACM HOME EQUITY LOAN TRUST 2005-HE2
2. The name and business address of the Trustee of the trust in the
State Delaware is Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
3. The statutory trust reserves the right to amend, alter, change, or
repeal any provision contained in this Certificate of Trust in the manner now or
hereafter prescribed by law.
4. This Certificate of Trust shall be effective upon filing.
THE UNDERSIGNED, being the Trustee hereinbefore named, for the purpose
of forming a statutory trust pursuant to the provisions of the Delaware
Statutory Trust Act, does make this certificate of trust, hereby declaring and
further certifying that this is its act and deed and that to the best of the
undersigned's knowledge and belief the facts herein stated are true.
WILMINGTON TRUST COMPANY, not in
its individual capacity but
solely as owner trustee under
the trust agreement to be
dated as of June 29, 2005
By:
Name:
Title:
Dated: June 29, 2005
EXHIBIT C
FORM OF RULE 144A INVESTMENT REPRESENTATION
Description of Rule 144A Securities, including numbers:
The undersigned seller, as registered holder (the "Seller"), intends to
transfer the Rule 144A Securities described above to the undersigned buyer (the
"Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the Owner
Trustee and the Depositor, pursuant to Section 3.05 of the trust agreement dated
as of June 29, 2005 (the "Agreement"), between Residential Asset Mortgage
Products, Inc., as depositor (the "Depositor"), and Wilmington Trust Company, as
owner trustee (the "Owner Trustee"), as follows:
a. The Buyer understands that the Rule 144A Securities have not
been registered under the 1933 Act or the securities laws of any state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and
risks of investment in the Rule 144A Securities.
c. The Buyer has been furnished with all information regarding
the Rule 144A Securities that it has requested from the Seller, the
Indenture Trustee, the Owner Trustee or the Servicer.
d. Neither the Buyer nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Rule 144A Securities, any interest in
the Rule 144A Securities or any other similar security from, or
otherwise approached or negotiated with respect to the Rule 144A
Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the Rule
144A Securities under the 1933 Act or that would render the disposition
of the Rule 144A Securities a violation of Section 5 of the 1933 Act or
require registration pursuant thereto, nor will it act, nor has it
authorized or will it authorize any person to act, in such manner with
respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term is
defined in Rule 144A under the 1933 Act and has completed either of the
forms of certification to that effect attached hereto as Annex 1 or
Annex 2. The Buyer is aware that the sale to it is being made in
reliance on Rule 144A. The Buyer is acquiring the Rule 144A Securities
for its own account or the accounts of other qualified institutional
buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
1933 Act.
3. The Buyer represents that:
(i) either (a) or (b) is satisfied, as marked below:
a. The Buyer is not any employee benefit plan subject to
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986, as amended (the
"Code"), a Person acting, directly or indirectly, on behalf of
any such plan or any Person acquiring such Certificates with
"plan assets" of a Plan within the meaning of the Department of
Labor Regulations Section 2510.3-101; or
b. The Buyer will provide the Depositor, the Owner
Trustee, the Certificate Registrar and the Servicer with an
opinion of counsel, satisfactory to the Depositor, the Owner
Trustee, the Certificate Registrar and the Servicer, to the
effect that the purchase and holding of a Certificate by or on
behalf of the Buyer is permissible under applicable law, will not
constitute or result in a prohibited transaction under Section
406 of ERISA or Section 4975 of the Code (or comparable
provisions of any subsequent enactments) and will not subject the
Depositor, the Owner Trustee, the Certificate Registrar or the
Servicer to any obligation or liability (including liabilities
under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Trust Agreement, which opinion of counsel shall
not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer; and
(ii) the Buyer is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406
and 407 of ERISA and Section 4975 of the Code and understands that each
of the parties to which this certification is made is relying and will
continue to rely on the statements made in this paragraph 3.
This document may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in Appendix A to the indenture dated as of June
29, 2005, between the Trust and the Indenture Trustee.
IN WITNESS WHEREOF, each of the parties has executed this document as of
the date set forth below.
Print Name of Seller Print Name of Buyer
By: By:
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. No.
Date: Date:
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
For Buyers Other Than Registered Investment Companies
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a
discretionary basis $ (1) in securities (except for the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A) and (ii) the Buyer
satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any state, territory or the District of
Columbia, the business of which is substantially confined to banking
and is supervised by the state or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is attached
hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or similar institution, which is supervised and examined by a state or
federal authority having supervision over any such institutions or is
a foreign savings and loan association or equivalent institution and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements.
___ Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a state or territory or the District of
Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by
a state, its political subdivisions, or any agency or instrumentality
of the state or its political subdivisions, for the benefit of its
employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974, as
amended.
___ Investment Adviser. The Buyer is an investment adviser registered
under the Investment Advisers Act of 1940. as amended.
___ SBIC. The Buyer is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958, as amended.
___ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers
Act of 1940, as amended.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established
and maintained by a state, its political subdivisions, or any agency
or instrumentality of the state or its political subdivisions, for the
benefit of its employees, or (b) employee benefit plans within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, as amended, but is not a trust fund that includes as
participants individual retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part of
an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Rule 144A
Securities are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer may be in reliance on Rule 144A.
Will the Buyer be purchasing the Rule 144A Yes No Securities only
for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for the
account of a third party (including any separate account) in reliance on Rule
144A, the Buyer will only purchase for the account of a third party that at the
time is a "qualified institutional buyer" within the meaning of Rule 144A. In
addition, the Buyer agrees that the Buyer will not purchase securities for a
third party unless the Buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice is given, the Buyer's purchase of Rule 144A Securities will constitute a
reaffirmation of this certification as of the date of such purchase.
Print Name of Buyer
By:
Name:
Title:
Date:
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
For Buyers That Are Registered Investment Companies
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
The Buyer owned $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
The Buyer is part of a Family of Investment Companies which
owned in the aggregate $ in securities (other than the
excluded securities referred to below) as of the end of
the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer or are part of the Buyer's Family
of Investment Companies, (ii) bank deposit notes and certificates of deposit,
(iii) loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
5. The Buyer is familiar with Rule 144A and understands that each of the
parties to which this certification is made are relying and will continue to
rely on the statements made herein because one or more sales to the Buyer will
be in reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Buyer's purchase of Rule 144A Securities will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print Name of Buyer
By:
Name:
Title:
IF AN ADVISER:
Print Name of Buyer
Date:
EXHIBIT D
FORM OF INVESTOR REPRESENTATION LETTER
_________,___
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Re: Residential Asset Mortgage Products, Inc., GMACM Home Equity
Loan-Backed Certificates, Series 2005-HE2
Ladies and Gentlemen:
___________________ (the "Purchaser") intends to purchase from
(the "Seller") $ Certificate Percentage Interest of the Class [ ] Certificates
of Series 2005-HE2 (the "Certificates"), issued pursuant to the trust agreement
dated as of June 29, 2005 (the "Trust Agreement"), between Residential Asset
Mortgage Products, Inc., as depositor (the "Depositor") and Wilmington Trust
Company, as owner trustee (the "Owner Trustee"), as acknowledged and agreed by
Xxxxx Fargo Bank, N.A., as Certificate Registrar. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in
Appendix A to the indenture dated as of June 29, 2005, between the Trust and the
Indenture Trustee. The Purchaser hereby certifies, represents and warrants to,
and covenants with, the Depositor and the Certificate Registrar that:
1. The Purchaser understands that (a) the Certificates have not
been and will not be registered or qualified under the Securities Act of
1933, as amended (the "Act"), or any state securities law, (b) the
Company is not required to so register or qualify the Certificates, (c)
the Certificates may be resold only if registered and qualified pursuant
to the provisions of the Act or any state securities law, or if an
exemption from such registration and qualification is available, (d) the
Trust Agreement contains restrictions regarding the transfer of the
Certificates and (e) the Certificates will bear a legend to the
foregoing effect.
2. The Purchaser is acquiring the Certificates for its own
account for investment only and not with a view to or for sale in
connection with any distribution thereof in any manner that would
violate the Act or any applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated
institutional investor having such knowledge and experience in financial
and business matters, and, in particular, in such matters related to
securities similar to the Certificates, such that it is capable of
evaluating the merits and risks of investment in the Certificates, (b)
able to bear the economic risks of such an investment and (c) an
"accredited investor" within the meaning of Rule 501(a) promulgated
pursuant to the Act.
4. The Purchaser has been furnished with, and has had an
opportunity to review a copy of the Trust Agreement and such other
information concerning the Certificates, the Mortgage Loans and the
Depositor as has been requested by the Purchaser from the Depositor or
the Seller and is relevant to the Purchaser's decision to purchase the
Certificates. The Purchaser has had any questions arising from such
review answered by the Depositor or the Seller to the satisfaction of
the Purchaser.
5. The Purchaser has not and will not nor has it authorized or
will it authorize any person to (a) offer, pledge, sell, dispose of or
otherwise transfer any Certificate, any interest in any Certificate or
any other similar security to any person in any manner, (b) solicit any
offer to buy or to accept a pledge, disposition of other transfer of any
Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) otherwise approach or
negotiate with respect to any Certificate, any interest in any
Certificate or any other similar security with any person in any manner,
(d) make any general solicitation by means of general advertising or in
any other manner or (e) take any other action, that (as to any of (a)
through (d) above) would constitute a distribution of any Certificate
under the Act, that would render the disposition of any Certificate a
violation of Section 5 of the Act or any state securities law, or that
would require registration or qualification pursuant thereto. The
Purchaser will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Trust Agreement.
6. The Purchaser represents:
(i) that either (a) or (b) is satisfied, as marked below:
a. The Purchaser is not any employee benefit plan subject
to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or the Internal Revenue Code of 1986, as
amended (the "Code"), a Person acting, directly or indirectly, on
behalf of any such plan or any Person acquiring such Certificates
with "plan assets" of a Plan within the meaning of the Department
of Labor Regulations Section 2510.3-101; or
b. The Purchaser will provide the Depositor, the Owner
Trustee, the Certificate Registrar and the Servicer with an
opinion of counsel, satisfactory to the Depositor, the Owner
Trustee, the Certificate Registrar and the Servicer, to the
effect that the purchase and holding of a Certificate by or on
behalf of the Purchaser is permissible under applicable law, will
not constitute or result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code (or comparable
provisions of any subsequent enactments) and will not subject the
Depositor, the Owner Trustee, the Certificate Registrar or the
Servicer to any obligation or liability (including liabilities
under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Trust Agreement, which opinion of counsel shall
not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer; and
(ii) the Purchaser is familiar with the prohibited
transaction restrictions and fiduciary responsibility requirements of
Sections 406 and 407 of ERISA and Section 4975 of the Code and
understands that each of the parties to which this certification is made
is relying and will continue to rely on the statements made in this
paragraph 6.
7. The Purchaser is not a non-United States person.
Very truly yours,
By:
Name:
Title:
EXHIBIT E
FORM OF TRANSFEROR REPRESENTATION LETTER
__________,____
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Re: Residential Asset Mortgage Products, Inc. GMACM Home Equity
Loan-Backed Certificates, Series 2005-HE2
Ladies and Gentlemen:
(the "Purchaser") intends to purchase from (the "Seller") a ______%
Percentage Interest of the Class [ ] Certificates of Series 2005-HE2 (the
"Certificates"), issued pursuant to the trust agreement dated as of June 29,
2005 (the "Trust Agreement"), between Residential Asset Mortgage Products, Inc.,
as depositor (the "Depositor"), and Wilmington Trust Company, as owner trustee
(the "Owner Trustee"), as acknowledged and agreed by Xxxxx Fargo Bank, N.A., as
Certificate Registrar. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in Appendix A to the indenture
dated as of June 29, 2005, between the Trust and the Indenture Trustee. The
Seller hereby certifies, represents and warrants to, and covenants with, the
Depositor and the Certificate Registrar that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will
not act, in any manner set forth in the foregoing sentence with respect to any
Certificate. The Seller has not and will not sell or otherwise transfer any of
the Certificates, except in compliance with the provisions of the Trust
Agreement.
Very truly yours,
(Seller)
By:
Name:
Title:
EXHIBIT F
FORM OF CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status is delivered pursuant to Section
3.05 of the trust agreement dated as of June 29, 2005 (the "Trust Agreement"),
between Residential Asset Mortgage Products, Inc., as depositor (the
"Depositor"), and Wilmington Trust Company, as owner trustee, in connection with
the acquisition of, transfer to or possession by the undersigned, whether as
beneficial owner (the "Beneficial Owner"), or nominee on behalf of the
Beneficial Owner of GMACM Home Equity Loan-Backed Certificates, Series 2005-HE2
(the "Certificates"). Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in Appendix A to the indenture
dated as of June 29, 2005, between the Trust and the Indenture Trustee.
Each holder must complete Part I, Part II (if the holder is a nominee),
and in all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form
W-9 relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446
of the Internal Revenue Code (relating to withholding tax on foreign partners)
do not apply in respect of the Certificates held by the undersigned, the
undersigned hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (the Beneficial Owner is ) not a non-resident
alien for purposes of U.S. income taxation;
2. My (the Beneficial Owner's) name and home address are:
; and
3. My (the Beneficial Owner's) U.S. taxpayer
identification number (Social Security Number) is
_______________________.
B. Corporate, Partnership or Other Entity as Beneficial Owner
1. (Name of the Beneficial Owner) is not a foreign
corporation, foreign partnership, foreign trust or
foreign estate (as those terms are defined in the
Code and Treasury Regulations;
2.. The Beneficial Owner's office address and place of
incorporation (if applicable) is
_______________________; and
3. The Beneficial Owner's U.S. employer identification
number is ____________________.
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this Certificate has been made in reliance upon
information contained in:
an IRS Form W-9
a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that the
form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees to
notify the Trust within sixty (60) days of the date that the Beneficial Owner
becomes a foreign person. The undersigned understands that this certificate may
be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or both.
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct and
complete and will further declare that I will inform the Trust of any change in
the information provided above, and, if applicable, I further declare that I
have the authority* to sign this document.
Name
Title (if applicable)
Signature and Date
*NOTE: If signed pursuant to a power of attorney, the power of attorney must
accompany this certificate.
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
____________,____
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
GMAC Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Re: Residential Asset Mortgage Products, Inc. GMACM Home Equity
Loan-Backed Certificates, Series 2005-HE2
Dear Sirs:
(the "Transferee") intends to acquire from (the "Transferor") a %
Percentage Interest of GMACM Home Equity Loan-Backed Certificates, Series
2005-HE2, Class [ ] (the "Certificates"), issued pursuant to a trust agreement
dated as of June 29, 2005, between Residential Asset Mortgage Products, Inc., as
depositor (the "Depositor"), and Wilmington Trust Company, as owner trustee (the
"Owner Trustee"). Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in Appendix A to the indenture dated as
of June 29, 2005, between the Trust and the Indenture Trustee.
The Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Owner Trustee, the Certificate Registrar and
the Servicer that:
The Certificates (i) are not being acquired by, and will not be
transferred to, any employee benefit plan within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or other retirement arrangement, including individual
retirement accounts and annuities, Xxxxx plans and bank collective
investment funds and insurance company general or separate accounts in
which such plans, accounts or arrangements are invested, that is subject
to Section 406 of ERISA or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code") (any of the foregoing, a "Plan"), (ii) are
not being acquired with "plan assets" of a Plan within the meaning of
the Department of Labor ("DOL") Regulations Section 2510.3-101, and
(iii) will not be transferred to any entity that is deemed to be
investing in plan assets within the meaning of the DOL Regulations
Section 2510.3-101.
The Transferee is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406
and 407 of ERISA and Section 4975 of the Code and understands that each
of the parties to which this certification is made is relying and will
continue to rely on the statements made herein.
Very truly yours,
By:
Name:
Title:
EXHIBIT H
FORM OF REPRESENTATION LETTER
____________,____
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
GMAC Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Re: Residential Asset Mortgage Products, Inc. GMACM Home Equity
Loan-Backed Certificates, Series 2005-HE2
Dear Sirs:
(the "Transferee") intends to acquire from (the "Transferor") a %
Percentage Interest of GMACM Home Equity Loan-Backed Certificates, Series
2005-HE2, Class [ ] (the "Certificates"), issued pursuant to a trust agreement
dated as of June 29, 2005 (the "Trust Agreement"), Residential Asset Mortgage
Products, Inc., as depositor (the "Depositor"), and Wilmington Trust Company, as
owner trustee (the "Owner Trustee"). Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in Appendix A to the
indenture dated as of June 29, 2005, between the Trust and the Indenture
Trustee.
The Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Owner Trustee, the Certificate Registrar and
the Servicer that:
(1) the Transferee is acquiring the Certificate for its own
behalf and is not acting as agent or custodian for any other person or
entity in connection with such acquisition; and
(2) the Transferee is not a partnership, grantor trust or S
corporation for federal income tax purposes, or, if the Transferee is a
partnership, grantor trust or S corporation for federal income tax
purposes, the Certificates are not more than 50% of the assets of the
partnership, grantor trust or S corporation.
Very truly yours,
By:
Name:
Title:
[GRAPHIC OMITTED]
EXHIBIT I-1
FORM OF CLASS R-I CERTIFICATES
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON
OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 3.05 OF THE AGREEMENT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE
THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE SERVICER, THE COMPANY OR THE TRUSTEE TO ANY OBLIGATION
OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE
TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT
FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH
GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR
ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING
THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE
INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION
1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION
775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B),
(C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR
(F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE
PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
Certificate No. 1
Class R-I Certificate
Percentage Interest: 100%
Cut-Off Date: June 1, 20054
Date of Trust Agreement: June 29, 2005
First Payment Date: July 25, 2005
Final Payment Date: November 25, 2035
GMACM HOME EQUITY LOAN-BACKED CERTIFICATE, SERIES 2005-HE2
evidencing a fractional undivided interest in GMACM Home Equity
Loan Trust 2005-HE2 (the "Trust"), the property of which
consists primarily of the Mortgage Loans.
This Certificate is payable solely from the assets of the Trust Estate,
and does not represent an obligation of or interest in the Depositor, the
Sellers, the Servicer, the Indenture Trustee or the Owner Trustee or any of
their Affiliates. This Certificate is not guaranteed or insured by any
governmental agency or instrumentality or by the Depositor, the Sellers, the
Servicer, the Indenture Trustee or the Owner Trustee or any of their affiliates.
None of the Depositor, the Sellers, the Servicer, the Indenture Trustee or the
Owner Trustee or any of their Affiliates will have any obligation with respect
to any certificate or other obligation secured by or payable from payments on
the Certificates.
This certifies that GMAC Mortgage Corporation is the registered owner of
the Certificate Percentage Interest evidenced by this Certificate (as set forth
on the face hereof) in certain distributions with respect to the Trust Estate,
consisting primarily of the Mortgage Loans, created by Residential Asset
Mortgage Products, Inc. (the "Depositor"). The Trust (as defined herein) was
created pursuant to a trust agreement dated as of June 29, 2005 (as amended and
supplemented from time to time, the "Agreement"), between the Depositor and
Wilmington Trust Company, as owner trustee (the "Owner Trustee," which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto
in Appendix A to the indenture dated as of June 29, 2005, between the Trust and
the Indenture Trustee. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Certificateholder of this Certificate by virtue of the acceptance hereof assents
and by which such Certificateholder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each March, June, September and December or, if such 25th day is
not a Business Day, the Business Day immediately following (the "Payment Date"),
commencing on the first Payment Date specified above, to the Person in whose
name this Certificate is registered at the close of business on the last day (or
if such last day is not a Business Day, the Business Day immediately preceding
such last day) of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the pro rata portion evidenced by
this Certificate (based on the Percentage Interest stated on the face hereon) of
the amount, if any, required to be distributed to Certificateholders of
Certificates on such Payment Date. Distributions on this Certificate will be
made as provided in the Agreement by the Certificate Paying Agent by wire
transfer or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the making
of any notation hereon.
Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Certificate Paying Agent of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the Corporate Trust
Office of the Certificate Registrar. This Certificate has no Certificate
Balance.
Each Certificateholder of this Certificate will be deemed to have agreed
to be bound by the restrictions set forth in the Agreement to the effect that
(i) each person holding or acquiring any Ownership Interest in this Certificate
must be a United States Person and a Permitted Transferee, (ii) the transfer of
any Ownership Interest in this Certificate will be conditioned upon the delivery
to the Indenture Trustee of, among other things, an affidavit to the effect that
it is a United States Person and Permitted Transferee, (iii) any attempted or
purported transfer of any Ownership Interest in this Certificate in violation of
such restrictions will be absolutely null and void and will vest no rights in
the purported transferee, and (iv) if any person other than a United States
Person and a Permitted Transferee acquires any Ownership Interest in this
Certificate in violation of such restrictions, then the Depositor will have the
right, in its sole discretion and without notice to the Certificateholder of
this Certificate, to sell this Certificate to a purchaser selected by the
Depositor, which purchaser may be the Depositor, or any affiliate of the
Depositor, on such terms and conditions as the Depositor may choose.
No transfer of this Class R-I Certificate will be made unless the
Indenture Trustee has received either (i) an opinion of counsel acceptable to
and in form and substance satisfactory to the Trustee, the Depositor and the
Servicer with respect to the permissibility of such transfer under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and Section 4975
of the Internal Revenue Code (the "Code") and stating, among other things, that
the transferee's acquisition of a Class R Certificate will not constitute or
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code or (ii) a representation letter, in the form as
described by the Agreement, stating that the transferee is not an employee
benefit or other plan subject to the prohibited transaction provisions of ERISA
or Section 4975 of the Code (a "Plan"), or any other person (including an
investment manager, a named fiduciary or a trustee of any Plan) acting, directly
or indirectly, on behalf of or purchasing any Certificate with "plan assets" of
any Plan.
This Certificate is one of a duly authorized issue of Certificates
designated as GMACM Home Equity Loan-Backed Certificates of the Series specified
hereon (the "Certificates").
The Certificateholder of this Certificate, by its acceptance hereof,
agrees that it will look solely to the funds on deposit in the Distribution
Account that have been released from the Lien of the Indenture for payment
hereunder and that neither the Owner Trustee in its individual capacity nor the
Depositor is personally liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
The Certificateholder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders and the Enhancer as described in
the Indenture.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, or join in any institution against the Depositor or the Trust of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Agreement or any of the other Basic Documents.
The Agreement permits the amendment thereof as specified below, provided
that any amendment be accompanied by an Opinion of Counsel to the Owner Trustee
and the Enhancer to the effect that such amendment complies with the provisions
of the Agreement and will not cause the Trust to be subject to an entity level
tax. If the purpose of any such amendment is to correct any mistake, eliminate
any inconsistency, cure any ambiguity or deal with any matter not covered, it
shall not be necessary to obtain the consent of any Certificateholder, but the
Owner Trustee shall be furnished with a letter from each Rating Agency to the
effect that such amendment will not cause a Rating Event, determined without
regard to the Policy. If the purpose of any such amendment is to prevent the
imposition of any federal or state taxes at any time that any Security is
Outstanding, it shall not be necessary to obtain the consent of the any
Certificateholder, but the Owner Trustee and the Enhancer shall be furnished
with an Opinion of Counsel that such amendment is necessary or helpful to
prevent the imposition of such taxes and is not materially adverse to any
Certificateholder. If the purpose of the amendment is to add or eliminate or
change any provision of the Agreement, other than as specified in the preceding
two sentences, the amendment shall require either (a) a letter from each Rating
Agency to the effect that such amendment will not cause a Rating Event,
determined without regard to the Policy or (b) the consent of Certificateholders
of a majority of the Percentage Interests of the Certificates and the Indenture
Trustee; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the time of, payments received that are required
to be distributed on any Certificate without the consent of all
Certificateholders affected thereby, or (ii) reduce the aforesaid percentage of
Certificates the Certificateholders of which are required to consent to any such
amendment without the consent of the Certificateholders of all such Certificates
then outstanding.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
Corporate Trust Office of the Certificate Registrar, accompanied by a written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Certificateholder hereof or such Certificateholder's attorney
duly authorized in writing, and thereupon one or more new Certificates of
authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee. The initial Certificate
Registrar appointed under the Agreement is the Owner Trustee.
Except as provided in the Agreement, the Certificates are issuable only
in minimum denominations of a 10.0000% Percentage Interest and in integral
multiples of a 0.0001% Percentage Interest in excess thereof. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of authorized denominations, as requested
by the Certificateholder surrendering the same. This Certificate is issued in
the Percentage Interest above.
No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or governmental charge payable in
connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Paying Agent, the Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of Delaware.
The obligations created by the Agreement in respect of this Certificate
and the Trust created thereby shall terminate upon the final distribution of all
moneys or other property or proceeds of the Trust Estate in accordance with the
terms of the Indenture and the Agreement.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, or an authenticating agent by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
[Signature Page Follows]
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Class R-I Certificate to be duly
executed.
GMACM HOME EQUITY LOAN TRUST 2005-HE2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
Dated: June 29, 2005 By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:
Authorized Signatory
or ,
as Authenticating Agent of the Trust
By:
Authorized Signatory
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer unto
____________________________________________________________________________
(name and address of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ___________________________________________________
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:_____________
________________________________ */
Signature Guaranteed:
___________________________ */
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available
funds to__________________ for the account of ___________________, account
number _________________, or, if mailed by check, to __________________.
Applicable statements should be mailed to ___________________.
________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT I-2
FORM OF CLASS R-II CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON
OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 3.05 OF THE AGREEMENT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE
THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE SERVICER, THE COMPANY OR THE TRUSTEE TO ANY OBLIGATION
OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE
TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT
FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH
GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR
ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING
THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE
INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION
1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION
775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B),
(C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR
(F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE
PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
Certificate No. 1
Class R-II Certificate
Percentage Interest: 100%
Cut-Off Date: June 1, 2005
Date of Trust Agreement: June 29, 2005
First Payment Date: July 25, 2005
Final Payment Date: November 25, 2035
GMACM HOME EQUITY LOAN-BACKED CERTIFICATE, SERIES 2005-HE2
evidencing a fractional undivided interest in GMACM Home Equity
Loan Trust 2005-HE2 (the "Trust"), the property of which
consists primarily of the Mortgage Loans.
This Certificate is payable solely from the assets of the Trust Estate,
and does not represent an obligation of or interest in the Depositor, the
Sellers, the Servicer, the Indenture Trustee or the Owner Trustee or any of
their Affiliates. This Certificate is not guaranteed or insured by any
governmental agency or instrumentality or by the Depositor, the Sellers, the
Servicer, the Indenture Trustee or the Owner Trustee or any of their affiliates.
None of the Depositor, the Sellers, the Servicer, the Indenture Trustee or the
Owner Trustee or any of their Affiliates will have any obligation with respect
to any certificate or other obligation secured by or payable from payments on
the Certificates.
This certifies that GMAC Mortgage Corporation is the registered owner of
the Certificate Percentage Interest evidenced by this Certificate (as set forth
on the face hereof) in certain distributions with respect to the Trust Estate,
consisting primarily of the Mortgage Loans, created by Residential Asset
Mortgage Products, Inc. (the "Depositor"). The Trust (as defined herein) was
created pursuant to a trust agreement dated as of June 29, 2005 (as amended and
supplemented from time to time, the "Agreement"), between the Depositor and
Wilmington Trust Company, as owner trustee (the "Owner Trustee," which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto
in Appendix A to the indenture dated as of June 29, 2005, between the Trust and
the Indenture Trustee. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Certificateholder of this Certificate by virtue of the acceptance hereof assents
and by which such Certificateholder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each March, June, September and December or, if such 25th day is
not a Business Day, the Business Day immediately following (the "Payment Date"),
commencing on the first Payment Date specified above, to the Person in whose
name this Certificate is registered at the close of business on the last day (or
if such last day is not a Business Day, the Business Day immediately preceding
such last day) of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the pro rata portion evidenced by
this Certificate (based on the Percentage Interest stated on the face hereon) of
the amount, if any, required to be distributed to Certificateholders of
Certificates on such Payment Date. Distributions on this Certificate will be
made as provided in the Agreement by the Certificate Paying Agent by wire
transfer or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the making
of any notation hereon.
Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Certificate Paying Agent of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the Corporate Trust
Office of the Certificate Registrar. This Certificate has no Certificate
Balance.
Each Certificateholder of this Certificate will be deemed to have agreed
to be bound by the restrictions set forth in the Agreement to the effect that
(i) each person holding or acquiring any Ownership Interest in this Certificate
must be a United States Person and a Permitted Transferee, (ii) the transfer of
any Ownership Interest in this Certificate will be conditioned upon the delivery
to the Indenture Trustee of, among other things, an affidavit to the effect that
it is a United States Person and Permitted Transferee, (iii) any attempted or
purported transfer of any Ownership Interest in this Certificate in violation of
such restrictions will be absolutely null and void and will vest no rights in
the purported transferee, and (iv) if any person other than a United States
Person and a Permitted Transferee acquires any Ownership Interest in this
Certificate in violation of such restrictions, then the Depositor will have the
right, in its sole discretion and without notice to the Certificateholder of
this Certificate, to sell this Certificate to a purchaser selected by the
Depositor, which purchaser may be the Depositor, or any affiliate of the
Depositor, on such terms and conditions as the Depositor may choose.
No transfer of this Class R-II Certificate will be made unless the
Indenture Trustee has received either (i) an opinion of counsel acceptable to
and in form and substance satisfactory to the Trustee, the Depositor and the
Servicer with respect to the permissibility of such transfer under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and Section 4975
of the Internal Revenue Code (the "Code") and stating, among other things, that
the transferee's acquisition of a Class R Certificate will not constitute or
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code or (ii) a representation letter, in the form as
described by the Agreement, stating that the transferee is not an employee
benefit or other plan subject to the prohibited transaction provisions of ERISA
or Section 4975 of the Code (a "Plan"), or any other person (including an
investment manager, a named fiduciary or a trustee of any Plan) acting, directly
or indirectly, on behalf of or purchasing any Certificate with "plan assets" of
any Plan.
This Certificate is one of a duly authorized issue of Certificates
designated as GMACM Home Equity Loan-Backed Certificates of the Series specified
hereon (the "Certificates").
The Certificateholder of this Certificate, by its acceptance hereof,
agrees that it will look solely to the funds on deposit in the Distribution
Account that have been released from the Lien of the Indenture for payment
hereunder and that neither the Owner Trustee in its individual capacity nor the
Depositor is personally liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
The Certificateholder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders and the Enhancer as described in
the Indenture.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, or join in any institution against the Depositor or the Trust of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Agreement or any of the other Basic Documents.
The Agreement permits the amendment thereof as specified below, provided
that any amendment be accompanied by an Opinion of Counsel to the Owner Trustee
and the Enhancer to the effect that such amendment complies with the provisions
of the Agreement and will not cause the Trust to be subject to an entity level
tax. If the purpose of any such amendment is to correct any mistake, eliminate
any inconsistency, cure any ambiguity or deal with any matter not covered, it
shall not be necessary to obtain the consent of any Certificateholder, but the
Owner Trustee shall be furnished with a letter from each Rating Agency to the
effect that such amendment will not cause a Rating Event, determined without
regard to the Policy. If the purpose of any such amendment is to prevent the
imposition of any federal or state taxes at any time that any Security is
Outstanding, it shall not be necessary to obtain the consent of the any
Certificateholder, but the Owner Trustee and the Enhancer shall be furnished
with an Opinion of Counsel that such amendment is necessary or helpful to
prevent the imposition of such taxes and is not materially adverse to any
Certificateholder. If the purpose of the amendment is to add or eliminate or
change any provision of the Agreement, other than as specified in the preceding
two sentences, the amendment shall require either (a) a letter from each Rating
Agency to the effect that such amendment will not cause a Rating Event,
determined without regard to the Policy or (b) the consent of Certificateholders
of a majority of the Percentage Interests of the Certificates and the Indenture
Trustee; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the time of, payments received that are required
to be distributed on any Certificate without the consent of all
Certificateholders affected thereby, or (ii) reduce the aforesaid percentage of
Certificates the Certificateholders of which are required to consent to any such
amendment without the consent of the Certificateholders of all such Certificates
then outstanding.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
Corporate Trust Office of the Certificate Registrar, accompanied by a written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Certificateholder hereof or such Certificateholder's attorney
duly authorized in writing, and thereupon one or more new Certificates of
authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee. The initial Certificate
Registrar appointed under the Agreement is the Owner Trustee.
Except as provided in the Agreement, the Certificates are issuable only
in minimum denominations of a 10.0000% Percentage Interest and in integral
multiples of a 0.0001% Percentage Interest in excess thereof. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of authorized denominations, as requested
by the Certificateholder surrendering the same. This Certificate is issued in
the Percentage Interest above.
No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or governmental charge payable in
connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Paying Agent, the Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of Delaware.
The obligations created by the Agreement in respect of this Certificate
and the Trust created thereby shall terminate upon the final distribution of all
moneys or other property or proceeds of the Trust Estate in accordance with the
terms of the Indenture and the Agreement.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, or an authenticating agent by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
[Signature Page Follows]
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Class R-II Certificate to be duly
executed.
GMACM HOME EQUITY LOAN TRUST 2005-HE2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
Dated: June 29, 2005 By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:
Authorized Signatory
or ,
as Authenticating Agent of the Trust
By:
Authorized Signatory
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer unto
____________________________________________________________________________
(name and address of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ___________________________________________________
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:_____________
________________________________ */
Signature Guaranteed:
___________________________ */
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available
funds to__________________ for the account of ___________________, account
number _________________, or, if mailed by check, to __________________.
Applicable statements should be mailed to ___________________.
________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT I-3
FORM OF CLASS R-III CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON
OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 3.05 OF THE AGREEMENT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE COMPANY AND THE TRUSTEE
THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE SERVICER, THE COMPANY OR THE TRUSTEE TO ANY OBLIGATION
OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE
TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT
FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH
GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR
ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING
THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE
INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION
1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION
775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B),
(C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR
(F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE
PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
Certificate No. 1
Class R-III Certificate
Percentage Interest: 100%
Cut-Off Date: June 1, 2005
Date of Trust Agreement: June 29, 2005
First Payment Date: July 25, 2005
Final Payment Date: November 25, 2035
GMACM HOME EQUITY LOAN-BACKED CERTIFICATE, SERIES 2005-HE2
evidencing a fractional undivided interest in GMACM Home Equity
Loan Trust 2005-HE2 (the "Trust"), the property of which
consists primarily of the Mortgage Loans.
This Certificate is payable solely from the assets of the Trust Estate,
and does not represent an obligation of or interest in the Depositor, the
Sellers, the Servicer, the Indenture Trustee or the Owner Trustee or any of
their Affiliates. This Certificate is not guaranteed or insured by any
governmental agency or instrumentality or by the Depositor, the Sellers, the
Servicer, the Indenture Trustee or the Owner Trustee or any of their affiliates.
None of the Depositor, the Sellers, the Servicer, the Indenture Trustee or the
Owner Trustee or any of their Affiliates will have any obligation with respect
to any certificate or other obligation secured by or payable from payments on
the Certificates.
This certifies that GMAC Mortgage Corporation is the registered owner of
the Certificate Percentage Interest evidenced by this Certificate (as set forth
on the face hereof) in certain distributions with respect to the Trust Estate,
consisting primarily of the Mortgage Loans, created by Residential Asset
Mortgage Products, Inc. (the "Depositor"). The Trust (as defined herein) was
created pursuant to a trust agreement dated as of June 29, 2005 (as amended and
supplemented from time to time, the "Agreement"), between the Depositor and
Wilmington Trust Company, as owner trustee (the "Owner Trustee," which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto
in Appendix A to the indenture dated as of June 29, 2005, between the Trust and
the Indenture Trustee. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Certificateholder of this Certificate by virtue of the acceptance hereof assents
and by which such Certificateholder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each March, June, September and December or, if such 25th day is
not a Business Day, the Business Day immediately following (the "Payment Date"),
commencing on the first Payment Date specified above, to the Person in whose
name this Certificate is registered at the close of business on the last day (or
if such last day is not a Business Day, the Business Day immediately preceding
such last day) of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the pro rata portion evidenced by
this Certificate (based on the Percentage Interest stated on the face hereon) of
the amount, if any, required to be distributed to Certificateholders of
Certificates on such Payment Date. Distributions on this Certificate will be
made as provided in the Agreement by the Certificate Paying Agent by wire
transfer or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the making
of any notation hereon.
Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Certificate Paying Agent of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the Corporate Trust
Office of the Certificate Registrar. This Certificate has no Certificate
Balance.
Each Certificateholder of this Certificate will be deemed to have agreed
to be bound by the restrictions set forth in the Agreement to the effect that
(i) each person holding or acquiring any Ownership Interest in this Certificate
must be a United States Person and a Permitted Transferee, (ii) the transfer of
any Ownership Interest in this Certificate will be conditioned upon the delivery
to the Indenture Trustee of, among other things, an affidavit to the effect that
it is a United States Person and Permitted Transferee, (iii) any attempted or
purported transfer of any Ownership Interest in this Certificate in violation of
such restrictions will be absolutely null and void and will vest no rights in
the purported transferee, and (iv) if any person other than a United States
Person and a Permitted Transferee acquires any Ownership Interest in this
Certificate in violation of such restrictions, then the Depositor will have the
right, in its sole discretion and without notice to the Certificateholder of
this Certificate, to sell this Certificate to a purchaser selected by the
Depositor, which purchaser may be the Depositor, or any affiliate of the
Depositor, on such terms and conditions as the Depositor may choose.
No transfer of this Class R-III Certificate will be made unless the
Indenture Trustee has received either (i) an opinion of counsel acceptable to
and in form and substance satisfactory to the Trustee, the Depositor and the
Servicer with respect to the permissibility of such transfer under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and Section 4975
of the Internal Revenue Code (the "Code") and stating, among other things, that
the transferee's acquisition of a Class R Certificate will not constitute or
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code or (ii) a representation letter, in the form as
described by the Agreement, stating that the transferee is not an employee
benefit or other plan subject to the prohibited transaction provisions of ERISA
or Section 4975 of the Code (a "Plan"), or any other person (including an
investment manager, a named fiduciary or a trustee of any Plan) acting, directly
or indirectly, on behalf of or purchasing any Certificate with "plan assets" of
any Plan.
This Certificate is one of a duly authorized issue of Certificates
designated as GMACM Home Equity Loan-Backed Certificates of the Series specified
hereon (the "Certificates").
The Certificateholder of this Certificate, by its acceptance hereof,
agrees that it will look solely to the funds on deposit in the Distribution
Account that have been released from the Lien of the Indenture for payment
hereunder and that neither the Owner Trustee in its individual capacity nor the
Depositor is personally liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
The Certificateholder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders and the Enhancer as described in
the Indenture.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, or join in any institution against the Depositor or the Trust of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Agreement or any of the other Basic Documents.
The Agreement permits the amendment thereof as specified below, provided
that any amendment be accompanied by an Opinion of Counsel to the Owner Trustee
and the Enhancer to the effect that such amendment complies with the provisions
of the Agreement and will not cause the Trust to be subject to an entity level
tax. If the purpose of any such amendment is to correct any mistake, eliminate
any inconsistency, cure any ambiguity or deal with any matter not covered, it
shall not be necessary to obtain the consent of any Certificateholder, but the
Owner Trustee shall be furnished with a letter from each Rating Agency to the
effect that such amendment will not cause a Rating Event. If the purpose of any
such amendment is to prevent the imposition of any federal or state taxes at any
time that any Security is Outstanding, it shall not be necessary to obtain the
consent of the any Certificateholder, but the Owner Trustee and the Enhancer
shall be furnished with an Opinion of Counsel that such amendment is necessary
or helpful to prevent the imposition of such taxes and is not materially adverse
to any Certificateholder. If the purpose of the amendment is to add or eliminate
or change any provision of the Agreement, other than as specified in the
preceding two sentences, the amendment shall require either (a) a letter from
each Rating Agency to the effect that such amendment will not cause a Rating
Event or (b) the consent of Certificateholders of a majority of the Percentage
Interests of the Certificates and the Indenture Trustee; provided, however, that
no such amendment shall (i) reduce in any manner the amount of, or delay the
time of, payments received that are required to be distributed on any
Certificate without the consent of all Certificateholders affected thereby, or
(ii) reduce the aforesaid percentage of Certificates the Certificateholders of
which are required to consent to any such amendment without the consent of the
Certificateholders of all such Certificates then outstanding.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
Corporate Trust Office of the Certificate Registrar, accompanied by a written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Certificateholder hereof or such Certificateholder's attorney
duly authorized in writing, and thereupon one or more new Certificates of
authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee. The initial Certificate
Registrar appointed under the Agreement is the Owner Trustee.
Except as provided in the Agreement, the Certificates are issuable only
in minimum denominations of a 10.0000% Percentage Interest and in integral
multiples of a 0.0001% Percentage Interest in excess thereof. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of authorized denominations, as requested
by the Certificateholder surrendering the same. This Certificate is issued in
the Percentage Interest above.
No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or governmental charge payable in
connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Paying Agent, the Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of Delaware.
The obligations created by the Agreement in respect of this Certificate
and the Trust created thereby shall terminate upon the final distribution of all
moneys or other property or proceeds of the Trust Estate in accordance with the
terms of the Indenture and the Agreement.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, or an authenticating agent by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
[Signature Page Follows]
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Class R-III Certificate to be duly
executed.
GMACM HOME EQUITY LOAN TRUST 2005-HE2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
Dated: June 29, 2005 By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:
Authorized Signatory
or ,
as Authenticating Agent of the Trust
By:
Authorized Signatory
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer unto
___________________________________________________________________________
(name and address of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ___________________________________________________
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:_____________
________________________________ */
Signature Guaranteed:
___________________________ */
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available
funds to__________________ for the account of ___________________, account
number _________________, or, if mailed by check, to __________________.
Applicable statements should be mailed to ___________________.
________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
EXHIBIT J-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
(1) That he is [Title of Officer] of [Name of Owner] (record or beneficial owner
of the GMACM Home Equity Loan-Backed Certificates, Series 2005-HE2, Class R-[ ]
(the "Owner")), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of ] [the United States], on behalf of
which he makes this affidavit and agreement.
(2) That the Owner (i) is not and will not be a "disqualified organization" or
an electing large partnership as of [date of transfer] within the meaning of
Sections 860E(e)(5) and 775, respectively, of the Internal Revenue Code of 1986,
as amended (the "Code") or an electing large partnership under Section 775(a) of
the Code, (ii) will endeavor to remain other than a disqualified organization
for so long as it retains its ownership interest in the Class R-[ ]
Certificates, and (iii) is acquiring the Class R-[ ] Certificates for its own
account or for the account of another Owner from which it has received an
affidavit and agreement in substantially the same form as this affidavit and
agreement. (For this purpose, a "disqualified organization" means an electing
large partnership under Section 775 of the Code, the United States, any state or
political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income).
(3) That the Owner is aware (i) of the tax that would be imposed on transfers of
Class R Certificates to disqualified organizations or electing large
partnerships, under the Code, that applies to all transfers of Class R
Certificates after March 31, 1988; (ii) that such tax would be on the transferor
(or, with respect to transfers to electing large partnerships, on each such
partnership), or, if such transfer is through an agent (which person includes a
broker, nominee or middleman) for a disqualified organization, on the agent;
(iii) that the person (other than with respect to transfers to electing large
partnerships) otherwise liable for the tax shall be relieved of liability for
the tax if the transferee furnishes to such person an affidavit that the
transferee is not a disqualified organization and, at the time of transfer, such
person does not have actual knowledge that the affidavit is false; and (iv) that
the Class R-[ ] Certificates may be "noneconomic residual interests" within the
meaning of Treasury regulations promulgated pursuant to the Code and that the
transferor of a noneconomic residual interest will remain liable for any taxes
due with respect to the income on such residual interest, unless no significant
purpose of the transfer was to impede the assessment or collection of tax.
(4) That the Owner is aware of the tax imposed on a "pass-through entity"
holding Class R Certificates if either the pass-through entity is an electing
large partnership under Section 775 of the if at any time during the taxable
year of the pass-through entity a disqualified organization is the record holder
of an interest in such entity. (For this purpose, a "pass through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.)
(5) The Owner is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the laws of, the
United States or any political subdivision thereof (except in the case of a
partnership, to the extent provided in Treasury regulations), or an estate that
is described in Section 7701(a)(30)(D) of the Code, or a trust that is described
in Section 7701(a)(30)(E) of the Code.
(6) That the Owner is aware that the Certificate Registrar will not register the
transfer of any Class R Certificates unless the transferee, or the transferee's
agent, delivers to it an affidavit and agreement, among other things, in
substantially the same form as this affidavit and agreement. The Owner expressly
agrees that it will not consummate any such transfer if it knows or believes
that any of the representations contained in such affidavit and agreement are
false.
(7) That the Owner has reviewed the restrictions set forth on the face of the
Class R Certificates and the provisions of Section 3.05 of the Trust Agreement
under which the Class R-[ ] Certificates were issued (in particular, clause
(i)(A) and (i)(B) of Section 3.05 which authorize the Certificate Registrar to
deliver payments to a person other than the Owner and negotiate a mandatory sale
by the Servicer Trustee in the event the Owner holds such Certificates in
violation of Section 3.05). The Owner expressly agrees to be bound by and to
comply with such restrictions and provisions.
(8) That the Owner consents to any additional restrictions or arrangements that
shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Class R-[ ] Certificates will only be owned,
directly or indirectly, by an Owner that is not a disqualified organization.
(9) The Owner's Taxpayer Identification Number is _________________.
(10) This affidavit and agreement relates only to the Class R-[ ] Certificates
held by the Owner and not to any other holder of the Class R-[ ]Certificates.
The Owner understands that the liabilities described herein relate only to the
Class R-[ ] Certificates.
(11) That no purpose of the Owner relating to the transfer of any of the Class
R-[ ] Certificates by the Owner is or will be to impede the assessment or
collection of any tax.
(12) That the Owner has no present knowledge or expectation that it will be
unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby represents to
and for the benefit of the person from whom it acquired the Class R-[ ]
Certificate that the Owner intends to pay taxes associated with holding such
Class R-[ ] Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Class R-[ ]
Certificate.
(13) That the Owner has no present knowledge or expectation that it will become
insolvent or subject to a bankruptcy proceeding for so long as any of the Class
R-[ ] Certificates remain outstanding.
(14) The Purchaser is not an employee benefit plan or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or an investment manager, named fiduciary or a
trustee of any such plan, or any other Person acting, directly or indirectly, on
behalf of or purchasing any Certificate with "plan assets" of any such plan.
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this ____ day of __________, ____________.
[NAME OF OWNER]
By:
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Owner, and acknowledged to me
that he executed the same as his free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of __________,
____________.
__________________________________
NOTARY PUBLIC
COUNTY OF
STATE OF
My Commission expires the day of ___,20 .
EXHIBIT J-2
FORM OF TRANSFEROR CERTIFICATE
_________ , 20
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Re: GMACM Home Equity Loan-Backed Term Notes,
Series 2005-HE2, Class R
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer
by (the "Seller") to (the "Purchaser") of $ Initial Certificate Principal
Balance of GMACM Home Loan Backed Pass-Through Certificates, Series 2005-HE2,
Class R-[ ] (the "Certificates"), pursuant to Section 3.05 of the Trust
Agreement (the "Trust Agreement"), dated as of June 29, 2005 among Residential
Asset Mortgage Products, Inc., as seller (the "Company"), GMAC Mortgage
Corporation, as servicer, and Wilmington Trust Company, as owner trustee (the
"Trustee"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Trust Agreement. The Seller hereby certifies,
represents and warrants to, and covenants with, the Company and the Trustee
that:
(15) No purpose of the Seller relating to the transfer of the Certificate by the
Seller to the Purchaser is or will be to impede the assessment or collection of
any tax.
(16) The Seller understands that the Purchaser has delivered to the Trustee and
the Servicer a transfer affidavit and agreement in the form attached to the
Trust Agreement as Exhibit J-1. The Seller does not know or believe that any
representation contained therein is false.
(17) The Seller has at the time of the transfer conducted a reasonable
investigation of the financial condition of the Purchaser as contemplated by
Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Seller has determined that the Purchaser has historically
paid its debts as they become due and has found no significant evidence to
indicate that the Purchaser will not continue to pay its debts as they become
due in the future. The Seller understands that the transfer of a Class R-[ ]
Certificate may not be respected for United States income tax purposes (and the
Seller may continue to be liable for United States income taxes associated
therewith) unless the Seller has conducted such an investigation.
(18) The Seller has no actual knowledge that the proposed Transferee is not both
a United States Person and a Permitted Transferee.
Very truly yours,
(Seller)
By:
Name:
Title:
